Broadhurst LLC involved in landmark decision finding Port Referendum Law incompatible with Constitution
19 February, 2020
The Grand Court has today ruled that the Port Referendum Law is illegal on the ground that it is incompatible with the right conferred by s. 70(1) of the Constitution to a fair and effective referendum on a matter of national importance.
Broadhurst LLC acted on behalf of Ms Shirley Roulstone, the Plaintiff.
The Hon. Justice Timothy Owen QC held that s. 70 of the Constitution requires the legislature to enact of a framework or general law to govern all people-initiated referendums and not the bespoke Port Referendum Law because it was not a general law as required by the Constitution or made in accordance with such a law.
The Grand Court held that the Constitution required a general law because “Section 70 of the Constitution confers a direct democratic right on the people to veto the policy choices of their democratic representatives” and “allowing the democratic representatives to change the ground rules every time there is a referendum risks the rules being changed to promote their policy choice”.
The Judge held that the Port Referendum Law had created “an unequal playing field which was heavily stacked in favour of the Government side to an extent which endangered the right to a fair and effective vote”. He made particular reference to the absence of rules in the Port Referendum Law governing voter registration, campaign finance, political broadcasting or requiring voters to be provided with objective information on the referendum issue.
The Judge indicated that those matters will have to be addressed in the context of drafting a general law governing the conduct of people-initiated referenda and observed that the Legislature’s approach will be “no doubt informed by the advice of the Constitutional Commission in discharge of its s.118 Constitutional function to advise the Government on constitutional development in the Cayman Islands”. The Judge commented that: “It is, in my view, unfortunate that apparently no Government has seen fit since the Commission published its thoughtful and well-reasoned Research Paper in 2011 to respond to the Commission’s views on what it clearly felt was the obvious need for a general referendum law.”
Kate McClymont, Associate Partner, reflected on the Court’s decision as follows: “This decision is truly significant in that it will have impact not just on this referendum but on all referendums going forward. We are very pleased with the result and grateful to have had the opportunity to represent Ms. Roulstone in this important matter.”
Broadhurst LLC
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Contacts: |
Kate McClymont - +1 (345) 949-7237 |
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Richard Parrish - +1 (345) 745-8837 |