Gov’t argues bad law still lawful

| 24/01/2020 | 54 Comments
Cruise port protester

(CNS): The Cayman Islands Government has argued that, regardless of the criticisms and problems with its port referendum law, it is still lawful and constitutional. Mark Shaw, QC, who is representing the CIG in the judicial review brought by Shirley Roulstone, a member of the Cruise Port Referendum campaign, said the Constitution does not compel the government to pass a general law for referendums before passing a specific bill to provide for a specific vote.

Despite all of the issues and inequities that the missing framework law has created for this particular referendum, as argued by Roulstone’s legal team, Shaw said that in order to persuade the judge that they were right, they had to demonstrate that section 70 compelled government to pass the framework legislation.

Roulstone is challenging the cruise vote law as being unconstitutional, largely because the question is flawed and that it is done without a framework law that would provide some impartial guidelines. But Shaw said the words in the Constitution “do not support their ambition”.

Shaw argued the same point in a multitude of ways for the best part of the second dayof the hearing. He said that having a general law would not necessarily solve all of the issues created by its absence, and in any event it simply was not a constitutional requirement in order to make the existing port law legal.

He pressed home the point that the government was perfectly entitled, within the boundaries of the Constitution, to pass specific laws for every single referendum if it chose, as he noted they were very rare things.

He conceded that government is drafting the framework law because there was room for such a piece of legislation, but made it clear that if the government wins this case, then it will not enact this law before it calls a new vote.

Accusing Chris Butler, the lawyer leading Roulstone’s legal team for the hearing, of “pleading for an ideal standard”, Shaw implied that the less than perfect law was still lawful and constitutional.

However, Justice Tim Owen noted that from the very beginning, government had made major errors in the drafting of the referendum law for the port, even setting the date and question before passing any legislation, and was then forced to re-do the law and rewrite the question. Pressing Shaw to defend his client’s position, he said the “government had hardly covered itself in glory” as it paved the way for the vote.

Responding to the judge’s queries, Shaw referred to the problems in the early stages as a “false start”, but did not accept that they had done anything wrong, in contrast to the judge’s position.

But Shaw urged Justice Owen not to strike down the port law “because it does not meet some ideal standard”, as he hammered home the government’s position that none of Butler’s arguments about the missing general law, leading to a very bad specific law, mattered because what the government did was not unconstitutional.

Addressing only some of the major problems that the state of the current referendum law has created, Shaw argued that many of them were policy matters. He contended that these things could not be managed through legislation, in any event, and saw nothing wrong with the massive inequities regarding campaign finance, the government using the people’s money to argue against a people’s vote and their unfair access to state-owned media advertising.

The QC also implied that the lack of any provision for voter registration was not important and was merely tough luck. There is always a certain level of disenfranchisement at any election, Shaw pointed out, because of the need for a cut-off point. He urged the judge not to tread on the toes of parliament and show deference to the democratically elected legislators.

Shaw persisted with the position that all of the alleged problems created by the missing framework law could be dealt with through a combination of common sense, administration and policy direction. He gave no real response to Butler’s position that, as a key player in the game, it was absurd to suggest government should also be allowed to set all of the rules if a vote was to be free, fair and effective.

In his response to the government’s submission, Butler pointed out that without a framework law, the very beginning of the process provided for in section 70 of the Constitution is troublesome because there needs to be legislation or regulations in place setting the parameters of how signatures are collected and verified. Doing that by passing a new law for each referendum or through policy and administration was impossible, he said, not least because government would not know that a people’s petition was underway before the fact.

He challenged much of what Shaw said and underscored, once again, that the existing port law was exceptionally flawed and did not provide for a fair or efficient vote. That, Butler added, was largely because there was no overarching guiding legislation to create the necessary level playing field to make government act in the people’s interests rather than its own.

“A general law would support section 70 of the Constitution but the current law does not,” Butler stated.

As the arguments wrapped up, Justice Owen said he would require some time and that he hoped to deliver his ruling during the week of 10 February.

However, it became apparent throughout the case that, regardless of Owen’s ruling, the matter would not be settled. The judge and both parties appeared to expect that whichever side lost this judicial review would appeal the decision.

During his submissions to the judge on Wednesday, Tom Lowe QC revealed that as well as supporting this judicial review, the National Trust was pressing ahead with a full legal suit based on government’s proposed deliberate destruction of the reefs and wrecks in George Town Harbour to make way for the controversial piers.

And given that not all of the concerns that CPR have about how government handled this people’s referendum, the door appears open to further legal challenges from that campaign as well. However, at this stage no other suit has been filed in the Grand Court.


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Category: Politics

Comments (54)

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  1. Anonymous says:

    Class Action Lawsuit. It’s coming.

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  2. Anon says:

    “ He pressed home the point that the government was perfectly entitled, within the boundaries of the Constitution, to pass specific laws for every single referendum if it chose, as he noted they were very rare things” not for much longer. If this government continues the way they are going i can see more referenda coming – Smith’s Cove, 50 Story tower bloc to name some

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  3. Anonymous says:

    Can you imagine, had the dump been placed in Bodden Town the smoke would have travelled all the way from there to west Bay Beach. Now can you imagine the referendum power based on a group of people who would have the power to cripple three districts? Plus the fact that the majority are not from Cayman. That is why we ELECT a group of people who are looking out for us the “Caymanians.” We are already the minority in our own island. That poison air was there before you were born (most Likely) why didn’t you go East?

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    • Anonymous says:

      Think you will find the Born Caymanians, the paper Caymanians, the expats and the tourists are all breathing the toxic air – it doesnt discriminate based on birth and the location is just fine for the down wind area to take in plenty of all groups of people. That is one of the worst piece of “not in my back yard” small minded commentary I have seen in my life. Oh, and I think you may want to brush up on your geography. Downwind from the dump is South West – West bay beach is North East. But I guess the rest of your comment shows that geography is not your only challenge.

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    • Captain Kirk says:

      To dredge for a cruise ship type multi docking will create a silt impact from N.W. Point
      to S.W. Point. The breath taking snorkeling that the average tourist can afford within
      walking distance from the port would become a dead marine moonscape. You dont have anything else that you can offer that would even compare to this precious asset. Every time a ship docks the residual silt would be stirred up.
      Result? Perpetual silting.

  4. Anonymous says:

    Voters need to organize to formally reject this sleazes show. Enough is enough. Governance needs a major rehaul.

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  5. Kurt Christian says:

    Vote No

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  6. Anonymous says:

    Government needs to understand what the people already do. The Constitution, not politicians, civil servants, or silly little rules that they write and call Laws, is what holds the ultimate power, especially when wielded by the people.

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    • Anonymous says:

      The CIG are hiding behind the flaws they engineered into the Constitution…and blocking enactment of SIPL under section 119, which criminalizes much of what has become rote. Voters will need to force enactment of this law if they want to expect transparency, honesty, investigations, and prosecutions in the future. So far, not one voter has started any petition to the governor to compel the enactment of this law (amended and twice passed by the house)!

  7. BeaumontZodecloun says:

    It shouldn’t be this complicated. Use the same standards as are used when we vote in the general elections — the majority of those electors who actually vote carry the motion. Simple.

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    • Anonymous says:

      BeaumontZodecloun: . Its not that simple. First the Constitution would have to be changed as it states that a People Initiated Referendum requires the support ofa majority of registered voters for success.

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      • Anonymous says:

        A motion in the above context, if a neutral question, could be either yes or no. That’s how it should be, that’s how democracy is supposed to work. It’s not supposed to be a negative response affirmation, while asking two questions, campaigning against truth with false info, without required transparency/conflict disclosure, and with a complete departure from prescribed procedure.

  8. Anonymous says:

    One gets the impression from reading comments on here that there is an organized group on here posting with the sole objective of disrediti?g the current admiistration. . Makes one wonder who they would like to see in power and why.

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  9. SMH says:

    So government’s QC admitted they know what they did was poor and incorrect so it was ok no matter the impact and costs to the people?

    Am I in dream land? They claimed to be above board now the trial is confirming what cpr have been saying from the very beginning.

    How can anyone be expected to trust their MLA’s if this is how they operate all the time on important tings? SMH

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    • Anonymous says:

      Most everyone knows that our MLA group is only interested in getting all they can while in office and playing musical chairs at election time stay in there at the trough. It is truly disgusting!

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  10. Anonymous says:

    Cayman cannot afford to re-elect any MLA that is in or associated with this Govt.

    They must all be voted out in 2021 starting with Alden McLaughlin Moses Kirkconnell McKeeva Bush Joey Hew Juliana Connolly Roy McTaggart Tara Rivers Dwayne Seymour David Wight Barbara Connolly Eugene Ebanks and Austin Harris.

    The future of Cayman and for the majority of Caymanians is bleek with them in leadership positions.

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    • Anonymous says:

      I wondered how they stayed in office after demonstrating that they were in there to feather their own nests, but after seeing what goes on around election time it is easier to understand.

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      • Anonymous says:

        Let’s be honest. That goes for all our current sad batch of politicians we have nobody decent to vote for. I think we the people should have a referendum to put them on performance related pay.

    • Anonymous says:

      I am sure 2.44 that you would like to replace them with people you can control. Not gonna happen.

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    • Anonymous says:

      To 2.44pm Lets hope that expats are not allowed to run or hold office then things would really get bleak for Caymanians.

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      • Anonymous says:

        Because you think this lot act with the best outcome for Caymanians in mind ( other than them and their friends and family!). I have a bridge to Little I would like to sell you.

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    • Anonymous says:

      2:44 But this is PARADISE!

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    • Anonymous says:

      2:44 Replacements will be the real problem!

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    • Anonymous says:

      We need new ppl to run then. The problem voters have is that there isn’t much of a choice. In my district GTS, I have to choose between two evils and I didn’t even know who Barbara was. I definitely didn’t vote for her. But there was little choice because everyone was for the port.

      • Anonymous says:

        To 8.35am In the last election you had 5 (five) candidates) to choose from…Mike Adam,Barbara Conolly, Paul Hurlston, Alric Lindsay, Catherine Tyson.Since you are unaware of this simple fact, I seriously doubt that you voted at all. You are just being mischievous.

    • Anonymous says:

      Wish I could give this comment 1000 likes

  11. Anonymous says:

    The time has come to drain the swamp in Cayman

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  12. Banana Republican says:

    This government is a complete joke and void of any integrity, ethics and sound morals.

    Where is the Auditor General’s office?

    What does the Governor’s office have to say about the clear breaches of good governance by the coalition government of national unity led by Alden McLaughlin McKeeva Bush and Moses Kirkconnell?

    It feels like we are living in a banana republic.

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  13. Anonymous says:

    Thank you CPR

    Thank you Alden Moses and the yes men in cabinet for rushing everything and making it easy to expose their plans. They are all compromised and have no respect for the positions they hold.

    Time to vote out this Unity Govt

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  14. Anonymous says:

    This government doesn’t understand that we will no longer eat the sandwiches they are passing off as “for our own good”. The voters have the power to dissolve the entire show, and rewrite all of the conditions of governance that they take for granted. Maybe that’s the next logical step.

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  15. Anonymous says:

    Establishing Standards in Public Life and creating the SIPL Committee to oversee compliance with the Law, was covered in section 119 of the Constitution, yet this government still refuses to enact it, despite it having been passed TWICE by the house!?!

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  16. Anonymous says:

    Meanwhile we are all dying from poisoned air. Dumps on fire dodo.

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