The Cayman Government has now filed its appeal against Justice Tim Owen’s ruling last month in favour of Shirley Roulstone, which found that the referendum law that was rushed through the legislature for the cruise port vote was unconstitutional.
The appeal is largely based on the same arguments presented at trial, which all failed. Court documents lists five grounds of appeal, as the Cayman government persists in its costly fight against the wishes of its own people. Despite the Premier’s admission last Friday that the port project is more or less dead, the current deal is unlikely to last as a result of the court’s ruling and the ongoing delays.
However, the administration seems set on attempting to keep the project alive, regardless of the current set of circumstances aligning against the cruise sector in general. The appeal claims that because section 70 of the Constitution, which deals with people-initiated referendums (PIRs), does not say anything specific about the law needed to pave the way for a PIR, the judge was wrong when he described what sort of legislation should be passed.
Justice Owen ruled against government largely because he found that it had passed a law that would have prevented a fair democratic vote. As a result, he found the law was unconstitutional because it undermined the principle behind the provision for a people’s referendum, which was designed to give voters a chance to directly challenge very important and specific government policies.
But the government has again argued, in a nut shell, that it does not matter how bad the law is because the Constitution does not specifically require any law passed for a PIR to be good; it only says that there must be a law, good or bad, to support a specific vote. It is not clear who has written government’s appeal, since the document is not signed by any attorney but by the Attorney General’s Chambers.
The attorneys have, however, argued that the judge’s findings regarding the inherent bias that government is bound to have in any referendum is “illogical” because the parliament, not government, passes the legislation. This was one of many points the judge raised to highlight the need for framework legislation to support section 70 before a specific law for a vote is passed.
The method by which government moved to pass the referendum law was a clear act of bias; it was presented to the opposition only an hour before the vote, it had never gone through a public consultation process, and it was rushed through with the help of government’s majority at the eleventh hour. The government has also argued, again, that a judge should not offer any remedy to a constitutional breach, as happened in this case, which was the successful legal action, brought by Roulstone over the government’s clear attempts to scupper the people’s referendum.
The government continues to maintain the idea that, because of the separation of powers between the judiciary and the executive, fixing any flaws in the law is up to it the legislature, which it controls, and they can decide when and how, or even if, it does so. However, Justice Owen already addressed this issue in his latest ruling.
Having found against government on the referendum law on every point raised by Roulstone, he said it would be a “legal fiction” not to order the law quashed. No date has been set for the appeal hearing.