October 20, 2020

The Editor speaks: CPR Cayman now don’t want the Referendum (AS IS!!!)

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Colin Wilson

I’m sure you’ve read the Premier’s response to the Legal Opinion on the Cruise Berthing Referendum and what the Opinion concludes.

We have published both under Breaking News yesterday as soon as we received it. Other local media houses have done the same.

CPR Cayman engaged the local legal firm Broadhurst to seek an Opinion which they did. They obtained one from Helen Mountfield QC and Chris Buttler of Matrix Chambers, being specialist public law counsel.

The letter that was sent by Broadhust contains “aspects of the Bill that are of particular concern and which we consider to be amenable to judicial review if passed into law, include the following:

a. The setting of the Referendum question without first enacting a law that prescribes the manner in which the referendum question is to be set;

b. The setting of the Referendum date without first enacting a law that prescribes the manner in which the referendum date is to be scheduled;

c. The exclusion of the application of Part V of the Elections Law, 2017, which addresses campaign financing limits, without any separate campaign financing provisions being included in the Bill; and The exclusion of the application of section 91(1) of the Elections Law, 2017 which would otherwise ban the sale of intoxicating liquor on referendum day.”

It then adds:

The adverse consequences of setting the Referendum question and date before enacting legislation that prescribes the procedure for doing so, are already apparent. In particular, we note the following:

a. The proposed wording of the question is not neutral as the words “move forward” and “enhanced” both suggest that a yes vote is a step towards progress;

b. The inclusion of the cargo port, together with the Cruise Berthing Project, conflates two separate questions and makes the question confusing;

c. The proposed date of the Referendum, being 19 December 2019, unnecessarily disenfranchises approximately 220 people who registered as electors between July and October 2019 and who would be able to vote if the Referendum were held in 2020, being less than two weeks after the proposed date;

d. The extremely short period between the setting of the Referendum question and the proposed Referendum date means CPR Cayman will not have enough time to find and properly train Referendum observers;

e. The close proximity of the proposed Referendum date to Christmas is likely to discourage voter participation in the Referendum as it is one of the busiest times of year for many people and a much higher percentage of the population will be abroad or in transit than at any other time of year.

7. The consequences of failing to establish campaign financing limits are also apparent. The CIG has engaged in excessive, one sided campaigning intended to influence the outcome of the vote and has used public funds to do so. This is a clear breach of the Code of Good Practice on Referendums promulgated by the Venice Commission) and may also be unconstitutional.

8. We understand that the Bill will be debated in the Legislative Assembly on 28 October 2019. We ask that the content of this letter be brought to the attention of the Legislative Assembly in advance of that debate, together with our request that the Bill not be enacted as currently drafted. As an alternative, we request that the CIG consult with our client with a view to finding an accommodation that would:

a. Mitigate the consequences of the manner in which the executive branch of the CIG has managed its Referendum campaign to date, which we say has been incompatible with its obligations under the Constitution; and

b. Agree a procedure for the holding of the Referendum that would be compatible with the Constitution.

9. As set out in the Opinion, it seems likely that any legislation enacted in accordance with the Bill would be inconsistent with or serve to frustrate the purpose of the Constitution. The result of this is that the legislation could be successfully challenged through the Courts. If a judicial review application becomes necessary, our client will seek a stay preventing the Referendum going ahead until that application has been determined. This would cause delay and unnecessary expense. This can be avoided if the Bill is suitably amended.”

The Premier in his reply (you can read it in full on our website) said:

“Responding to this Legal Opinion Premier Hon. Alden McLaughlin said “The Government has taken legal advice on the conduct of this matter from our customary noted constitutional counsel in London and we are more than satisfied that the process being followed is fair and proper in every respect. What is becoming increasingly clear, however, is that CPR is not really interested in holding a referendum, presumably because they think they will likely lose, but are simply intent on derailing the cruise port and cargo port project by any means possible, including frustrating it by delay. The Government will not allow that to occur – we intend to provide the country with a referendum that is fair to all sides. If CPR really believes it has a legitimate challenge to the process being followed by the Government, it should immediately apply to the court for leave for judicial review and have the matter adjudicated by the court rather than debated in the media.”

I have to concur with what he said above, especially his last sentence.

However, I already gave my opinion in a previous Editorial that his remarks he made into his interview with the Cayman Compass seemed to me to be arrogant. This was picked on by Helen Mountfield QC and Chris Buttler.

46. “ We have watched the Premier’s interview with the Cayman Compass3 and note his statement that, in the event of a non-quorate majority of voters opposing the port project,

“We would proceed with the project because essentially people not turning out to vote is a clear indication they are not opposed to the project”.

47. In our view, the Premier is incorrect to state that people not turning out to vote is a clear indication that they are not opposed to the port project. People may not vote for a variety of reasons, including other commitments or feeling that they are insufficiently informed on the issues.

48. Although we do not consider that the Premier’s comments cross the line into unlawful conduct, he and the Cabinet do need to be careful not to create the impression that those turning out to vote oppose the port development because that would undermine the secrecy (or, at least, the perceived secrecy) of the ballot and would therefore be contrary to the purpose of s 70 of the Constitution.

49. Further, if the Government were to take more active steps to suppress turnout, for example by offering incentives to those staying at home or by actively discouraging civil servants from voting, then that would in our view be clearly unlawful. It would be plainly contrary to the purpose of s 70 of the Constitution and might well constitute electoral fraud.

There is a very wise phrase “Less is More” that was first found in print in a poem by Robert Browning.and is also associated with the architect and furniture designer Ludwig Mies Van Der Rohe (1886-1969), one of the founders of modern architecture and a proponent of simplicity of style.

There are many examples that relate to the phrase and the pertinent one as it related to our premier is “You will learn to say only what you need to when things are on ice.” – Steve Aitchison.

It also is also applicable to CPR Cayman. If they are that confident of the Opinion given to them why didn’t they wait until the Referendum was over?

They could have voiced their concerns without disclosing their whole hand.

Unfortunately, for them, the premier is absolutely right that CPR Cayman are doing everything they can to delay the Referendum.

He concludes correctly, “If CPR really believes it has a legitimate challenge to the process being followed by the Government, it should immediately apply to the court for leave for judicial review and have the matter adjudicated by the court rather than debated in the media.”

The CPR have also “shot themselves in the foot” by sending this out with a clear message to the premier that was not a good thing to indicate to all the “YES” voters they no need to vote as non voters are counted as FOR the project and therefore a “YES”. He now realises his mistake by the kind assistance of Helen Mountfield QC. In the Legislative Assembly today he has asked the public to go to the Polls in large numbers with a resounding “YES”!

I’m pleased CPR have done this, however. It is nice to have this ‘battle’ to write about for us media hounds. AS IS!!!

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