Appeal judges criticise gov’t on port vote law

| 02/07/2020 | 45 Comments
Cayman News Service
Premier Alden McLaughlin at a public meeting about the cruise port, Nov 2019

(CNS): The Cayman Islands Court of Appeal criticised the government’s false starts over the cruise port referendum law and for creating an uneven playing field, despite finding in its favour on Thursday. The senior justices said that, given the circumstances of the case, they understood why the judge in the judicial review, which was brought by Shirley Roulstone, had reached the decision that he did.

“These included what were from a legal point of view false starts by the Government in relation to settling the referendum question and date before enacting the Port Referendum Law, and evidence on the substantive matters relied on by the Respondent which the Judge considered provided considerable support for the argument that ‘an unequal playing field which was heavily stacked in favour of the Government side” had been created,” the appeal court judges wrote in their unanimous decision.

They appeal court also noted the government’s failure to consult the Constitutional Commission before deciding how to respond to this, the first people-initiated referendum, and a background of “very surprising” failings to respond to two significant and highly relevant documents prepared by the commission.

The Constitutional Commission noted its concerns about government’s decision to ignore their advice in a report also published Thursday. The three-member commission stated that it had published a research paper about people-initiated referendums in 2011 stating the need for legislation to support them.

Then again in 2014 the commission had pointed out that it was not clear if a law could be enacted for all people-initiated referendums or whether bespoke laws would be sufficient.

But regardless of the noted shortcomings in government’s approach to this referendum, the court nevertheless said it was driven to conclude that the appeal must be allowed because the judges found that section 70 “makes no express provision about the form of a law that must be enacted to provide for the holding of a people initiated referendum”.

The judges also found that the idea, as suggested by Chris Butler who represented Roulstone, that section 70 should be read to require one to ensure it was free and fair “may put the matter too highly”.

They found the lack of clarity would also lead the court to veer towards the idea that there is no requirement for a general law to avoid trespassing on the power of legislature and that the absence of a framework law does not prevent a voter from participating in a free and fair vote.

The judges noted, however, that while a specific referendum law “that is not substantively flawed” is sufficient to meet the constitutional provision for a people’s vote in section 70, they did not decide whether the law government made was flawed or not.

“It remains to consider… if the Port Referendum Law is substantively flawed and prevents or inhibits the right of every Caymanian who is a registered voter to participate in a fair people’s initiated referendum.”

Following the court’s decision, the premier’s office issued a statement in which Alden McLaughlin said, “Government’s decision to go forward with the appeal at this time was a matter of principle — judges should not have the right to overturn policies that have been made by elected officials as they see fit.”

He continued, “I have never been a populist leader, nor am I a good politician in the generally understood sense. I have always striven to do what I believe is in the best interest of my country and people, without concern of political consequences”

McLaughlin added that he believed “with all my core” that Cayman would “curse the day and damn the hour that the cruise and cargo port project was scuppered” but that was not why the government pursued the appeal.

“What was actually at stake was the right of the democratically elected Legislative Assembly to decide what legislation should be made and the content of those laws,” the premier said. “We appealed against the judgment of a temporary judge who we believe usurped the function and role of the LA and arrogated to himself an authority to which he was not entitled.”

McLaughlin said that if the judge had been correct, then the role and authority of the legislature would have been diminished, not just on the referendum law, but generally.

“I shudder at the implications for my country when unelected judges are able to dictate public policy,” the premier stated.

Tourism Minister Moses Kirkconnell welcomed the finding that the referendum law had been compatible with section 70 of the Constitution. He said he agreed with the premier regarding the power of the court versus parliament.

But he said that after a long and arduous journey, the COVID-19 pandemic had “recalibrated the country’s priorities” and for the time being the port project had been abandoned anyway.

“As a consequence, government has taken the difficult decision not to move forward with the cruise berthing and cargo port project,” he said, adding government’s priority was “putting the needs of our people first” and containing the virus.

He said a range of strategic initiatives was being implemented to revive the economy and rekindle a domestic tourism industry, so that the Cayman Islands “can be as prepared as possible to welcome visitors back to our shores when it becomes safe to do so”.

See the ruling and the Constitutional Commission’s report in the CNS Library.


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Comments (45)

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  1. Pete says:

    so now we can have the referendum and neither CPR or the government will speak for us the people.

  2. Anonymous says:

    Well, the world has changed, and still changing doesn’t know where we go from here. Building the pier today is a gamble at best today. But the cruise lines would have had to pay for it not us. It wasn’t the same as building the school. We weren’t signing any loans and we didn’t need to write a check.
    But someone is going to have to help pay all the people who no longer have a cruise ship job.
    Rent or mortgage, food, medical insurance, water, electricity, cell phones, computers, broadband, etc. So any idea where the Government is getting the money from? I heard they were going to re-educate a lot of people? Since most of the jobs were tourism. Should be easy cause all those people were making $25 per hour with tip.

  3. Anonymous says:

    Whilst the CIG won the appeal, they really lost the battle and, ultimately, the war. The Court was very critical of the CIG stage the odds in their favour.

    More importantly, instead of holding that Owen Ag. J could not quash primary legislation, the Court of Appeal, after hearing full argument, did rule that, where a law was unconstitutional, it was invalid and could be quashed.

    This now makes clear that, where a legiskation (whether primary or subordinate) is unconstitutional, it is ultra vires, unlawful and void ab initio. Thus, where an act or decision is unlawful for being ia compatible with the Constitution, section 24 of the Bill of Rights dictates that it is unlawful and ultra vires, and may be quashed. That is a massive victory for the people of the Cayman Islands.

    There was so much legislation passed the term, but the CIG seemed more concerned with quantity over quality. We need elected members of parliament, who are immune from corruption, incompetence, laziness and do not yield only to special interests.

    In particular, we need to ensure that the fundamental constitutional rights and freedoms are Procter from infringement, and this means that the CIG must ensure that they comply with their governmental responsibilities. The CPR matter is only but one of the many failures of the Unity Government.

    The irony is that the Premier was so instrumental in getting this Constitution passed, but ironically it has been used against administration leaders by him. In some respects, it might be fit and proper to thank the Premier for passing such a great Constitution, which has been used to stop his Government from acting unconstitutionally.

    Thank you CPR and Ms. Roulstone for the beave stance taken, and God bless you for being brave in the face of adversity. You all are truly the real heroes here. We need to also not let this Government get away with all its other unlawful and unconstitutional pursuits, and there are far too many for comfort.

    I urge the voting public also to vote responsibly. Do not let the next election come around and put people who are up to no good back in. We the people do not need to be policing Government’s improper acts and decisions, but we need a Government that does what is right for the people.

    Please remember that the people are our most precious resources, but (as demonstrated here) we have to be wise stewards for the public finances and the environment. Together we stand, together we fall. Let’s make sure we work together to keep the government honest and productive.

    It’s far too long that we have needed this type of unity, so while the momentum is going on the right direction, let’s keep it full steam ahead.

    The most important thing is that we have seen what power the brace people, who take a stand for what is right, can do. This was indeed a victory and I am proud to be a Caymanian that supported keeping the Government honest.

    Now that the Court of Appeal has confirmed that primary legislation, which is unconstitutional is invalid and can be quashed, let’s look at what other legislation that is unconstitutional and requires being quashed. I know of quite a bit and it would be a good idea for us all to bring knowledge of it all into the light, so that we keep this Government honest.

    Principles of legality and constitutionality must prevail. Otherwise, as has been seen here, if you give this Government an inch, they will take more than a mile.

    God bless everyone CPR Cayman and Ms. Roulstone.

  4. Anonymous says:

    Really Moses , “ recalibrated the country’s priorities” . We are not fooled in election year.

    Suddenly this government is for Caymanians, what happened over the previous years?
    Unna sell us out, and we gonna stop that soon.

    • Anonymous says:

      What’s plié a gunk you talking

    • Anonymous says:

      Which politicians was reported as saying (opening ceremony for New airport terminal?) that the economy was More important than the environment. Regardless of who said all of them have demonstrated it.

  5. Anonymous says:

    can’t we see the turmoil that the world is in now. God is is speaking and we need to be listening.
    What makes anyone think that we are going back to ‘the normal’ any time soon?

  6. Pull My Finger👆🏾 says:

    2 things I ponder:

    Alden says:

    “What was actually at stake was the right of the democratically elected Legislative Assembly to decide what legislation should be made and the content of those laws,” the premier said. “We appealed against the judgment of a temporary judge who we believe usurped the function and role of the LA and arrogated to himself an authority to which he was not entitled.”

    McLaughlin said that if the judge had been correct, then the role and authority of the legislature would have been diminished, not just on the referendum law, but generally.

    “I shudder at the implications for my country when unelected judges are able to dictate public policy,” the premier stated.”

    -I agree with you on that for sure, Alden. But because of CPR’s very valiant efforts and great thanks to Sharon for bringing the judicial review (and first victory), the Cayman Islands got a 2 for 1.

    1. A ruling to make sure judges don’t easily interfere with public policy decisions.

    2. Atemporary, and now very uncertain future in the port ever being produced as big of a project as proposed initially. Number 2 mostly goes to the Covid-19 pandemic and the obliteration of the cruise ship industry as we knew it. The first court victory, this allowed a delay long enough for the world to experience many changes, all within in time frame of less than 6 months. Imagine had the port got underway in November/December 2019, it would currently be a modern white elephant. And let’s not forget the imported Chinese labour, where would that leave us? Holding an emptier purse.

    But Moses still sees light at the end of the pier…

    Moses states:

    “As a consequence, government has taken the difficult decision not to move forward with the cruise berthing and cargo port project,” he said, adding government’s priority was “putting the needs of our people first” and containing the virus.”

    -Really Moses? The ‘decision was difficult to make??’ Even after all what everyone knows about the cruise industry??? Where everyone can see why it’s a risk to invest any pennies in that market, you found it Difficult to not go ahead with purpose-built mega cruise ship facilities???? Genius, I say! But not really, more like Duh!!

  7. Anonymous says:

    Clearly there are no consequences for ignoring the three person Constitutional Commission, appointed by the Governor. The Commission itself has no sanctioning power, but the Governor certainly does. What is Roper’s comment to this?

  8. Anonymous says:

    So, Alden believes that we will regret that we did not put in the cruise port, but at the time he was the same one that was saying it was not a national issue so that we could not hold a Referendum on the matter. Which is it Alden??

    • Anonymous says:

      I remember when the current finger pier was proposed. There was a huge opposition to constructing it, led by a prominent sea captain businessman who claimed George Town would be flooded, the next Norwester would destroy it and the world would end.
      Glad the govt. of the day went ahead.

  9. Anonymous says:

    My poor people, If you can only see through all the bs you would have seen how important the dock was for us…

    • Anonymous says:

      by “us” do you mean all the politicians with financial self interests in the deal?

    • Anonymous says:

      Leaving out the (a) enviro offenses, (b) the fact that our population, GDP have shrunk, and (c) the liners are near bust: the Unity regime had generously agreed to pay the disposable liner proxy company the difference between arrival headcount and Verdant Isle’s targeted amortization rate for their model, wagering the arrivals numbers would surprise to the upside. We would have been bankrupted in months under hundreds of millions of dollars in subsidy costs, even as the broke liners didn’t even need to sail. Great deals made badly, brought to you (again) by the dream team of profligates past.

      • Anonymous says:

        Please give a reference to where the CIG had agreed to pay any difference between actual arrival headcount and targetted headcount.

        • Anonymous says:

          Sorry that is a commercially sensitive Secret.

        • Anonymous says:

          CIBC First Caribbean had agreed to finance the (under) projected $200mln cost with implicit financial backstop from the Cayman Islands Government.

          From Stran Bodden and Moses Kirkconnell a year ago:

          “It is estimated that a minimum of around two million passengers annually will be needed to ensure that the consortium is paid back in full for the investment and is able to earn a return over and above the estimated $200 million costs over the 25-year period that it will be recouping the passenger taxes. However, government expects passenger numbers to grow to much more than two million, and as it does the $2 it is giving up per passenger will easily be covered by the increase in numbers.”

          https://caymannewsservice.com/2019/07/cruise-fees-fund-project/

  10. Anonymous says:

    Man, Alden you can’t just take your licks and go home..got to spout your mouth off again. Arrogance at its best!

    Only thing I hope for is that you and Moses are put in moth balls for good come 2021

  11. JTB says:

    If Mr McLaughlin’s explanation of the Government’s motives is correct, then he will be appealing this decision, since the Appeal Judges ruled the court has power to quash laws in cases like this, they just didn’t think it necessary in this particular instance.

    • Anonymous says:

      .???
      .

    • Anonymous says:

      Alden certainly did not get the full ruling he wanted in that respect. But I do not know that appealing will achieve that. They could ask the Privy Council to hear that point; it could be a companion decision to the Supreme Court one quashing the prorogation order.

  12. Anonymous says:

    This Govt is disconnected from reality and the needs of the people. The cruise port was never a priority for Cayman. Thank you CPR for exposing an ethically corrupt unity ship of fools and stopping their grand plans

  13. CPR Cayman says:

    CIG will still have to deal with the issue of conducting the Referendum before they can commit to any cruise berthing facility project.

    CPR is still alive and will continue our efforts.

    We are focused on having achieved the main objectives of the Judicial Review process, which were to prevent CIG getting an unfair advantage in the referendum by:

    (a) conducting it on a date shortly before Christmas, which would actively reduce voter turnout, something that is particularly grave where failure to vote acts as a vote in favour of the government position, and

    (b) using biased wording in the question to encourage a vote in favour of the government position.

    We hope that, having been faced with a formidable challenge this time round, when the referendum eventually takes place, the Cayman Islands Government will not make the same mistakes it made last time, such as:

    (1) providing the public with inaccurate information, using public funds, which nothing short of propaganda; and

    (2) completely dominating the information people heard about the project by spending millions of dollars of public money on campaigning while the anti-port lobby struggled to get information out to the people at anywhere near the same level due to financial constraints.

    CPR showed that the people do have a voice and will challenge decisions that lack transparency and accountability. The power rests in the people.

    • Anonymous says:

      Spoken like a sore loser.

      • Res Ipsa Loquitur says:

        Consider the facts and the goals as cpr set out on the people’s initiated referendum process and the application for judicial review which challenged the actions of the current administration. They effectively reached their goals. Perspective is everything.

    • Anonymous says:

      Let’s me honest, the only thing that saved your effort was the coronavirus.

    • Anonymous says:

      Your statement in (a) above is absolutely ridiculous. The date was NOT during Christmas holiday or even very shortly before Christmas. Is there a law that says you cannot hold a referendum before a public holiday? We have many public holidays all year long so dates for referendums would be greatly diminished according to your logic.

      Also, i would imagine that CPR supporters would never have missed their chance to vote in the referendum N O MATTER when it was held. That was just a delaying tactic from the start wasn’t it. A poor one at that.

  14. Anonymous says:

    I shudder to think what kind of economy-destroying deal Stalden and Moses might have committed us to if CPR and Ms. Roulstone hadn’t stepped up and blocked them from exercising their usual ineptitude.
    Imagine if they had gone ahead unhindered and we had paid a huge deposit to start what is now obviously a project that we may in short order want or need to abandon entirely, due to the drastic change in global economic conditions?? Not that Alden ever made viability get in the way of any of his pet projects…
    We may yet end up having to erect a statue of Shirley in the Hero’s Circle.

    • Anonymous says:

      If, if, if. Not good arguments.

    • Fly on the Wall says:

      Has Alden ever come up with any project of his own? No! He does what he is told to do by the people in charge. Isn’t that obvious?

    • Anonymous says:

      A rough sketch of the deal was here:

      https://caymannewsservice.com/2019/07/cruise-fees-fund-project/

      From the limited snippets available, of the undisclosed 9-phase construction plan (which seemed to abnormally focus on outset construction costs – disregarding the other typical project lifespan financial requirements for an infrastructure project of this scale, not least of which, failing to confer any expressed territorial CSR benefit), there was an initial 25 year $200 Mln loan at ___% agreed from CIBC-FCIB to Cayman shell company “Verdant Isle”(shareholders/controllers undisclosed, but presumably represented by McAlpine, RCL, CCL and many secret others – noting that even by last year, Disney and MSN had bailed from earlier tenuous financial commitment). The loan was evidently fully-backstopped by the Cayman Islands Government, for 25 years (a) roughly $8mln a year in principal, plus compounding interest on the principal, and (b) foregone head tax of $2 per passenger, and (c) the lost opportunity cost of impairing this much loan capacity (via Verdant Isle guarantee) on the limited balance sheet of the territory. Against those loan obligations, there was a substantial presumptive gamble being made of >2mln arriving cruise passengers a year (even while 10 year average hovered around 1.5mln – see arrival stats link below). The CIG was also hoping to save on tender per head subsidies, which would only be savings assumptions that would begin in the end phase of initial construction. I think we can all see how reckless that wager was – one which they didn’t have a mandate to enter in the first place.

      The CIG has already admitted to $9mln in unattributed “costs” in unwinding whatever wager phase we got to, and presumably retiring the loan early (and any financial penalties that came with that). No breakdown on that.

      In June 2020, the CIG sought a US$609,756,098 “security blanket” line of credit with the UK to help with “COVID-19”. We need to keep our eyes on that one.

      Cruise Arrivals Stats 2011-2020:
      https://www.caymanport.com/wp-content/uploads/passengers_stats.pdf

  15. Anonymous says:

    Alden’s amnd Moses’ arrogance continues unabated, both of them do not care about the Caymanian people, they only work to facilitate those to whom their soul has been sold.

    We need to ensure those elected in 2021 have a true commitment to only follow the wishes of the voters.

    • Anonymous says:

      You say “Alden’s amnd Moses’ arrogance continues unabated, both of them do not care about the Caymanian people”. Utter rubbish. If you have been living in Cayman or following Cayman news over the last three months then you know that what you say is untrue. Obviously you are politically opposed to their Government and let that bias into your comment.

      • Anonymous says:

        Would you like the 20 year refresher course, or does your memory recorder box only have room for the last 4 months?

      • Fly on the Wall says:

        Has Alden ever come up with any project of his own? No! He does what he is told to do by the people in charge. Isn’t that obvious?

      • Anonymous says:

        I’ve been here for forty years and I say the same thing. I think they are only interested in getting all they can for themselves.

  16. anonymous says:

    vote them all out in 2021. They work for special interests like cruise lines and wealthy developers they are not interested in what’s best for the people. Alden Moses Joey and this government work for them not us!

    • Anonymous says:

      They may have been elected as MLAs, but nobody voted for the government they formed. Nothing has changed to open the field of candidates, change the qualifications, or prevent a self-serving coalition from forming again.

      • Anonymous says:

        This, 10:27am, is my greatest concern. We tried to get Mac out but look where he sits today even with serious charges over his head. Continually…

        We will be stuck with the same ol’ same ol’ and the newbies they slipped in last election to learn dem ropes!

  17. Anonymous says:

    “I shudder at the implications for” Cayman when conflicted, greedy, and selfish politicians start implementing short sighted self-serving policies that make Caymanians second class citizens in their own country…oh that’s already here…nevermind

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