People-Initiated Referendums: Grand Court breathes life into direct democracy
In the recent constitutional case of Roulstone v The Cabinet of the Cayman Islands, the Grand Court ruled in favour of "the people" of the Cayman Islands and direct democracy when it found the Referendum (People-Initiated Referendum Regarding the Port) Law 2019 to be incompatible with the Cayman constitution.
Few issues in Cayman have been as hotly contested as the Government’s plan to build a cruise ship pier in George Town; so much so, that it has led to the only instance in Cayman’s history that a people-initiated referendum has been triggered. Section 70 of the Cayman constitution empowers citizens to force a referendum on matters of national importance provided 25 per cent of the electorate support a referendum; the result of any such referendum is then binding on the Government if assented to by more than 50 per cent of the electorate. After some initial toing and froing, it was confirmed that citizens’ interest group, Cruise Port Referendum Cayman (CPRC), had obtained the requisite support to trigger a referendum on the Government’s controversial plan.
The problem however was/is that such a referendum has never been held and there are no rules governing the process by which to do so. The Government sought to address this by introducing bespoke legislation specific to this referendum. CPRC objected to this approach in general, and specifically to the fact the proposed framework gave the Government a distinct advantage over those opposing the plan. Instead CPRC argued that section 70 required the Government to implement a general framework, applicable to all people-initiated referendums, that was both fair and transparent.
In siding with CPRC, the Grand Court held that the judiciary is the guardian of the constitution, and in situations such as the present case, where there is no available guidance as to how provisions of the constitution should be applied, the Courts should adopt a generous and purposive approach to ensure rights afforded by the constitution are guaranteed in practice. It went on to hold that the implementation of a general framework was the best way to guarantee the constitutional right afforded by section 70 as it would eliminate the uncertainty of a bespoke approach and the ability of elected officials exploit it to their advantage.
During the course of the proceedings, the Government confirmed that it was already in the process of drafting a general referendum law which it expects to be tabled in the second half of 2020.