Lack of proper administrative action a concern
The Cayman Islands government watchdog issued a warning last week about the perils of public sector agencies failing to follow recommendations set out by her office.
Those failures, Complaints Commissioner Nicola Williams said, could end up drowning the local government in litigation for years.
Ms Williams said that while one of her recommendations has never been completely ignored by government, there have been recent reports to her office – which acts as the Cayman Islands ombudsman – that certain public agencies don’t have the money to fix the problems the Office of the Complaints Commissioner has identified.
“People cannot use [lack of] resources as an excuse not to do something,” Ms Williams said.
In the past, government may have been able to look the other way, she said. However, with the advent of the bill of rights in the 2009 Constitution Order, particularly Section 19 of the bill, the complaints commissioner said turning a blind eye may be a dangerous gamble.
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 states.
With regard to concerns over lawful administrative action in the current government context, Ms Williams said she could think of one example where government is running the risk of legal action by not following her office’s recommendations.
“If our recommendations aren’t implemented, one [case] I can definitely see, will lead to a lawsuit,” she said. “And it will probably be a class action lawsuit [referring to a case where many plaintiffs with a similar claim join together to sue government].
“If you think [government] doesn’t have the resources now to set it right, wait and see what happens when it goes to court,” she said.
One recent special report to the Legislative Assembly from the complaints commissioner’s office in which government was cited for failing to follow the ombudsman’s recommendations dealt with the lack of operational cellphone jamming equipment in Her Majesty’s Prison, Northward. However, Ms Williams did not specify if that was the case she had referenced in her remarks.
Ms Williams recommended that the prisons system install phone jamming equipment at both Northward and Fairbanks prisons “since, realistically, it is virtually impossible to stop cellphone and BlackBerry use in prisons….”
“[It] would avoid regular and repeated use of strip-searching as a means of retrieval, which could not only put both the prison and the Cayman Islands government in violation of human rights protections, but also leave both entities open to lawsuits,” the complaints commissioner reported.
The prisons service installed a cellphone jamming device at Northward in December 2009, but the equipment has never worked properly. A large communications tower next to the prison complex, which operates most of the radio station signals in the Cayman Islands, causes signal “bleed over” that interferes with the cell phone jamming device.
Officials with Cayman’s prisons service recently said they have tried their best to implement cellphone jamming technology at Her Majesty’s Prison, Northward, but funding concerns have blocked their efforts.
Human Rights Commission chairman Richard Coles said the new bill of rights means government entities must explain themselves regarding decisions that are made and that those entities should also be prepared to document how they arrived at those decisions.
“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,” Mr. Coles said in an earlier interview with the Caymanian Compass. “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.”
“That is going to create quite a sea change in the courts,” Mr. Coles said. “In many, many cases you will find advocates will bring that right [under section 19] 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.”