I'm sure you've read the Premier's
response to the Legal Opinion on the Cruise Berthing Referendum and
what the Opinion concludes.

We have published both under Breaking
News yesterday as soon as we received it. Other local media houses
have done the same.

CPR Cayman engaged the local legal firm
Broadhurst to seek an Opinion which they did. They obtained one from
Helen Mountfield QC and Chris Buttler of Matrix Chambers, being
specialist public law counsel.

The letter that was sent by Broadhust
contains “aspects of the Bill that are of particular concern and
which we consider to be amenable to judicial review if passed into
law, include the following:

a. The setting of the Referendum
question without first enacting a law that prescribes the manner in
which the referendum question is to be set;

b. The setting of the Referendum date
without first enacting a law that prescribes the manner in which the
referendum date is to be scheduled;

c. The exclusion of the application of
Part V of the Elections Law, 2017, which addresses campaign financing
limits, without any separate campaign financing provisions being
included in the Bill; and The exclusion of the application of section
91(1) of the Elections Law, 2017 which would otherwise ban the sale
of intoxicating liquor on referendum day.”

It then adds:

The adverse consequences of setting the
Referendum question and date before enacting legislation that
prescribes the procedure for doing so, are already apparent. In
particular, we note the following:

a. The proposed wording of the question
is not neutral as the words “move forward” and “enhanced”
both suggest that a yes vote is a step towards progress;

b. The inclusion of the cargo port,
together with the Cruise Berthing Project, conflates two separate
questions and makes the question confusing;

c. The proposed date of the Referendum,
being 19 December 2019, unnecessarily disenfranchises approximately
220 people who registered as electors between July and October 2019
and who would be able to vote if the Referendum were held in 2020,
being less than two weeks after the proposed date;

d. The extremely short period between
the setting of the Referendum question and the proposed Referendum
date means CPR Cayman will not have enough time to find and properly
train Referendum observers;

e. The close proximity of the proposed
Referendum date to Christmas is likely to discourage voter
participation in the Referendum as it is one of the busiest times of
year for many people and a much higher percentage of the population
will be abroad or in transit than at any other time of year.

7. The consequences of failing to establish campaign financing limits are also apparent. The CIG has engaged in excessive, one sided campaigning intended to influence the outcome of the vote and has used public funds to do so. This is a clear breach of the Code of Good Practice on Referendums promulgated by the Venice Commission) and may also be unconstitutional.

8. We understand that the Bill will be
debated in the Legislative Assembly on 28 October 2019. We ask that
the content of this letter be brought to the attention of the
Legislative Assembly in advance of that debate, together with our
request that the Bill not be enacted as currently drafted. As an
alternative, we request that the CIG consult with our client with a
view to finding an accommodation that would:

a. Mitigate the consequences of the
manner in which the executive branch of the CIG has managed its
Referendum campaign to date, which we say has been incompatible with
its obligations under the Constitution; and

b. Agree a procedure for the holding of
the Referendum that would be compatible with the Constitution.

9. As set out in the Opinion, it seems
likely that any legislation enacted in accordance with the Bill would
be inconsistent with or serve to frustrate the purpose of the
Constitution. The result of this is that the legislation could be
successfully challenged through the Courts. If a judicial review
application becomes necessary, our client will seek a stay preventing
the Referendum going ahead until that application has been
determined. This would cause delay and unnecessary expense. This can
be avoided if the Bill is suitably amended.”

The Premier in his reply (you can read
it in full on our website) said:

“Responding to this Legal Opinion
Premier Hon. Alden McLaughlin said “The Government has taken legal
advice on the conduct of this matter from our customary noted
constitutional counsel in London and we are more than satisfied that
the process being followed is fair and proper in every respect. What
is becoming increasingly clear, however, is that CPR is not really
interested in holding a referendum, presumably because they think
they will likely lose, but are simply intent on derailing the cruise
port and cargo port project by any means possible, including
frustrating it by delay. The Government will not allow that to occur
– we intend to provide the country with a referendum that is fair
to all sides. If CPR really believes it has a legitimate challenge to
the process being followed by the Government, it should immediately
apply to the court for leave for judicial review and have the matter
adjudicated by the court rather than debated in the media.”

I have to concur with what he said
above, especially his last sentence.

However, I already gave my opinion in a
previous Editorial that his remarks he made into his interview with
the Cayman Compass seemed to me to be arrogant. This was picked on by
Helen Mountfield QC and Chris Buttler.

46. “ We have watched the Premier’s
interview with the Cayman Compass3 and note his statement that, in
the event of a non-quorate majority of voters opposing the port
project,

“We would proceed with the project
because essentially people not turning out to vote is a clear
indication they are not opposed to the project”.

47. In our view, the Premier is
incorrect to state that people not turning out to vote is a clear
indication that they are not opposed to the port project. People may
not vote for a variety of reasons, including other commitments or
feeling that they are insufficiently informed on the issues.

48. Although we do not consider that
the Premier’s comments cross the line into unlawful conduct, he and
the Cabinet do need to be careful not to create the impression that
those turning out to vote oppose the port development because that
would undermine the secrecy (or, at least, the perceived secrecy) of
the ballot and would therefore be contrary to the purpose of s 70 of
the Constitution.

49. Further, if the Government were to
take more active steps to suppress turnout, for example by offering
incentives to those staying at home or by actively discouraging civil
servants from voting, then that would in our view be clearly
unlawful. It would be plainly contrary to the purpose of s 70 of the
Constitution and might well constitute electoral fraud.

There is a very wise phrase “Less is
More” that was first found in print in a poem by Robert
Browning.and is also associated with the architect and furniture
designer Ludwig Mies Van Der Rohe (1886-1969), one of the founders of
modern architecture and a proponent of simplicity of style.

There are many examples that relate to
the phrase and the pertinent one as it related to our premier is “You
will learn to say only what you need to when things are on ice.” -
Steve Aitchison.

It also is also applicable to CPR
Cayman. If they are that confident of the Opinion given to them why
didn't they wait until the Referendum was over?

They could have voiced their concerns
without disclosing their whole hand.

Unfortunately, for them, the premier is
absolutely right that CPR Cayman are doing everything they can to
delay the Referendum.

He concludes correctly, “If CPR really believes it has a legitimate challenge to the process being followed by the Government, it should immediately apply to the court for leave for judicial review and have the matter adjudicated by the court rather than debated in the media.”

The CPR have also "shot themselves in the foot" by sending this out with a clear message to the premier that was not a good thing to indicate to all the "YES" voters they no need to vote as non voters are counted as FOR the project and therefore a "YES". He now realises his mistake by the kind assistance of Helen Mountfield QC. In the Legislative Assembly today he has asked the public to go to the Polls in large numbers with a resounding "YES"!

I'm pleased CPR have done this, however. It is nice to have this 'battle' to write about for us media hounds. AS IS!!!