Gov’t QC argues judge was wrong in port JR

| 06/05/2020 | 23 Comments
Cayman News Service
The Cruise Port Referendum petition

(CNS): Judges on the the Court of Appeal panel put the government’s lawyer, Alan Maclean QC, through his paces on Wednesday, as he argued that Justice Tim Owen got it wrong when he found that lawmakers should have passed general legislation before creating a bespoke referendum law to provide for the people’s vote on the port. MacLean said the Constitution doesn’t specify a need for a framework law and the judge had stepped on “legislature’s territory”.

Government has filed five grounds of appeal in response to the judicial review it lost on the port referendum law earlier this year. The legal challenge to the law was filed by Shirley Roulstone from the campaign for a people’s referendum on the cruise port project.

Maclean spent more than three hours arguing the grounds on Wednesday morning at a hearing that took place via Zoom, which involved lawyers representing Roulstone and the National Trust, who were party to the original judicial review.

But MacLean was essentially making just one point in his submissions: that section 70 of the Cayman Islands Constitution, which provides for a people-initiated referendum triggered by a petition from 25% of the electorate, does not specify any requirement for a framework, or general, law to support individual referendum laws and the judge erred when he found that it did.

While it is clear that some form of guiding law is needed and government itself has admitted it would be helpful and intends to pass one, Maclean claimed that Justice Owen went too far by saying that without it there could not be a fair election, and so it would be unconstitutional to pass tailored referendum laws each time a petition reached the 25% target for a public vote.

The judge had found that the inference had to be that section 70 requires a basic supporting law that covers the general issues surrounding people-initiated referendums from the rules surrounding the collection of signatures and how they are to be verified, otherwise it could be a free for all, undermining the democratic principle it is supposed to support.

Maclean suggested that during the judicial review the judge had asked himself the wrong questions and so had ended up in the wrong place, “losing his way” in his judgement.

He said Justice Owen had come up with a “gold-plated solution” in a misguided interpretation of the Constitution, which says nothing about how the law should be constructed to provide for these types of referendums. The government’s lawyer argued that there is no consensus on the concept of what is a truly fair or effective vote.

Fair voting, he claimed, was open to interpretation and it was up to the legislature to decide how votes were conducted, but the judge had determined that without a framework law no vote would ever be fair. However, Maclean told the appeal judges as they grilled him on his arguments that there was more than one way to skin a cat and Justice Owen had completely chucked out one way, which was the bespoke legislation.

But Maclean accepted, when quizzed by the appeal judges, that his argument also meant that ‘anything goes’ provided you could get to the polls, no matter how unfair the bespoke law might be. And that was a real possibility without a guiding framework, a point made during judicial review.

With no new information in the arguments for the appeal, Maclean effectively re-presented the government’s original case, pointing out where he disagreed with the judge’s findings, and pressed the panel to allow the appeal.

He also asked them to address the issue of the judge ordering the law to be quashed. Maclean argued that there was no need for the judge to make such a direction to lawmakers and a direction was all that was required.

The appeal is, in many respects, now largely irrelevant as the premier has said that the port project will not be going ahead during the remainder of this term as a result of the COVID-19 pandemic.

But he had justified the time and public money being expended on the appeal over the need to address what he said was the major constitutional question of whether or not the courts should be allowed to override laws made by the legislature, even, it seems, when they may be unconstitutional.

The appeal continues on Thursday.

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Category: development, Local News, Politics

Comments (23)

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  1. John Harris says:

    Alden’s public statement was that the Government was no longer concerned about the specific issue of the Cruise referendum, but was proceeding with the appeal because of concern about the courts over-reaching themselves and setting aside democratically passed laws.

    And yet, Government’s QC Mr Mclean opened by saying it was common ground that the Cayman legislature is not sovereign, and then developed his arguments to the effect not that the courts cannot quash laws, merely that they shouldn’t have done so *in this case*.

    If, as Alden says, this particular case no longer matters, and his QC (and therefore presumably the government) accepts that in principle the Court can set aside unconstitutional laws, then why did Government pursue the appeal?

  2. Anonymous says:

    What seems the most unfair was the idea that if you did not vote at all it would count as a yes… where else in the world would that be the case? North Korea maybe.

    • Anonymous says:

      Actually that applies in every election. If you don’t vote you still impact the result. Simple.

      • Anonymous says:

        Totally diasgree Brexit referendem, Cayman is supposed to be based on UK law.
        51.9% Yes 48.1 %No
        72.2% turnout those who did not vote did not count as yes or no

        here if you did not vote you supportd the govermrnt…. Crazy

      • Anonymous says:

        Every election here perhaps, but that’s not to say that it is equitable or constitutional. Its just plain biased and wrong.

  3. Anonymous says:

    Any chance the Court of Appeal could remind the Government about their previous ruling on gay marriage?

  4. Anonymous says:

    As far as I can tell the Cayman Islands are a democracy. This means that the majority rules. The original ruling sustains that rule. Anything else negates it!

  5. Anonymous says:

    It’s the IUCN Red List Tom.

  6. Anonymous says:

    This is about the rights of the people, and whether Cabinet has the presumed ultimate authority to continue to suppress/disregard them…the outcome will have material affect on a variety of “repugnant” laws including Marriage Law. If so, they’ll need to be amended urgently, ie. put on LA schedule within remainder of Unity regime’s term.

  7. Anonymous says:

    I don’t think that the panel were all that impressed with the CIG argument that judge Owen asked the wrong question and got the wrong answer. Observation wad made quite early on that it was possible to assume the judge made a mistake but reached the right answer. CIG argued there is no ambiguity in section 70, and therefore they succeed on their ground 1. Contrast panel’s chivvying of MacLean to wind up his submission with the grilling Buttler is getting. Examining the purposive interpretation of intentions of the framers of the constitution regarding s70 Beatson said “but it would have been so simple to have made that [general framework law] clear. We are all driven by inferences, some attractive, some giving pause. If it is so blindingly obvious, there are so many direct ways of saying it.”

    • Anonymous says:

      Doesn’t make any difference as all the high priced lawyers/QC’s that the goverment has hired get paid either way it goes and they take the money and leave. Why didn’t the AG handle this with his own staff? He is a QC and choose his staff himself so is he saying that none of them are up to the job and we must spend more money hiring more foreign lawyers/QC’s? These people all are living in the bubble they can not see Rome is burning while they dance to the fiddle music of the Premier & Minister of Health. Absolutely disgusting and a flagrant abuse of supreme power.

  8. Anonymous says:

    Thank you CPR, Miss Roulstone and the National Trust from delaying what would have been a $250,000,000+++ mistake.
    The Cruise Industry has shown its true colours during recent months – and by the way whatever happened to the Verdant Isle people? What are they going to due for our local cruise tourism workers- any plans to assist them Verdant Isle?

  9. Anonymous says:

    Not for long. The only reason government has money is business fees, work permit fees, stamp duty, room taxes, etc. Can’t draw blood from a stone.

  10. Anonymous says:

    Why is this even an issue now? My lord, what a waste of time! If they have nothing better to do, I can suggest somethings. Like opening up retail for one.

    • Anonymous says:

      They don’t like the fact that a judge can tell them what they should do. It’s as simple as that really. We need the judiciary to ensure equity, balance out their powers, ensure that they don’t act ultra vires, abuse the public purse or their positions of privilege (as they often do).

      I hope the final decision is with the public and not CIG.

  11. Anonymous says:

    It has to be wondered what Aldarts motivation is for pursuing this unless it’s for establishing a corridor for other agendas to be pushed through.

    • Jotnar says:

      Simple. Doesn’t like MLAs actions to be subject to judicial review and reversal when in conflict with the Constitution.

    • Anonymous says:

      Perhaps the port deal and any previous expenditures by vendor(s) require he pursue any remedy in furtherance of satisfaction of contract..or perhaps those previous expenditures will be repayable to current and or prior contract vendors.

  12. Anonymous says:

    How dare that judge question & rule against the supreme leader Alden; shame on you and know we will not rest until we get the port rammed thru – cost is no object as the goverment has all the money!

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