Section 19 of the Cayman Islands constitutional Bill of Rights, dealing with lawful administrative action, is the one area where the human rights officials expect to see the most complaints when the bill takes effect on 6 November.
Section 19 of the bill states that all actions of public officials must be “lawful, rational, proportionate and procedurally fair”.
“Every person whose interests have been adversely affected by such a decision or act has the right to request and be given written reasons for that decision or act,” Section 19 of the Bill of Rights goes on to state.
For example, in late 2010, three separate applications requesting judicial reviews following decisions of the Cayman Islands Work Permit Board to deny key employee status were filed, according to court records in a story previously reported by the Caymanian Compass.
The particulars of each claim – which involved foreign nationals who worked here as a carpenter, insurance agent and a real estate agent – all contain different sets of facts. In two of the cases, the applications claimed the decisions by the board were either “procedurally irregular or irrational” simply because no “adequate reason” was provided for the board decision to deny key employee status applications.
Those cases – had they occurred after 6 November, 2012 – would potentially be subject to claims under the Bill of Rights, according to the Human Rights Commission. However, the protections of the bill are not retroactive. It’s not just the work permit board that maintains that requirement. Every single government body, board, commission and committee fall under the legislation as of 6 November.
“That is going to create quite a sea change in the courts,” Human Rights Commission Chairman Richard Coles said. “In many, many cases you will find advocates will bring that right up before the Grand Court judge. From what I understand, from other jurisdictions that have had these rights in place for a number of years, this particular point is raised before the judge frequently. “It’s such an all-encompassing right that advocates just bring it in as part of their argument. It will almost get to the point where it will be unusual for it not to the be raised by an advocate.”
“If you make a decision … you must be prepared to give somebody the written reasons for why,” said Commissions Secretariat director Deborah Bodden.
Cayman’s immigration boards have operated for years under sets of guidelines that have never been made available for public consumption.
One of the many immigration rules, made public during a 2010 meeting of the Legislative Assembly, was that only Caymanians could employ Jamaican nationals as domestic helpers. The policy was not known until it was discussed in the assembly. The Liquor Licensing Board of Grand Cayman has a detailed set of rules for hearing applications, which has also never been made public.
Although it doesn’t expressly require it, the territory’s new human rights regime will encourage all government boards to make public their policies and operating procedures, Ms Bodden said.
“One of the things that we’ve said to them is that written policies and procedures should be available,” she said. “There is no reason, unless they can be exempted under FOI, there is no reason that the general public cannot understand what they need to do.”
The key for government departments looking to defend themselves from such claims: Be sure and write everything down.
“So, you apply for a government scholarship, you can’t just write me a note that says ‘Ms Bodden, [I] didn’t get the scholarship’, Why did [I] not get the scholarship?’ she said, giving a theoretical example.
“Obviously, they have to match up,” Ms Bodden continued. “They can’t come back and say to me ‘well, [I] have a criminal record’, but the policy didn’t say anything about me having a criminal record.”
Ms Bodden said the advent of the Bill of Rights means it is absolutely crucial for coherent policies to be in place before government bodies make decisions and that those policies are followed.
“We’ve been encouraging policies and procedures to be written, rather than just spoken about, which will change a lot of things for government,” she said.
Mr. Coles said he can’t stress the importance of documenting decisions enough under the new human rights’ regime.
“That way they can then show the decision was proportionate and it was in line with the policy. Without a reference point, then the whole thing becomes subjective and it must be objective,” he said. “It’s when the decision is irrational or it doesn’t follow the policy … many of those cases are likely to come before the Grand Court and this issue is likely to be raised.”