Maybe novel, but not dangerous
In the first of three articles exploring developments in judicial review with a particular relevance to the Cayman Islands, I began by highlighting the increasing propensity for administrative acts to be subjected to challenge in the Grand Court.
Rather than being a troubling trend, the first article concluded that there are potential benefits to be derived from this judicial scrutiny. Specifically, there is the prospect of greater accountability and transparency in government if lessons can be learnt in response to any administrative flaws exposed by these challenges.
1 Moreover, in the context of a jurisdiction anxious to protect its financial services industry, eager to encourage inward investment and sensitive to the need for efficiencies in government operations, improved administration ought to be a welcome proposition.
That said, the Cayman Islands is notable for the comprehensive range of laws and institutions that it has already established to promote and sustain good governance. Charged with investigating improper, unreasonable or inadequate government conduct, the Office of the Complaints Commissioner recently celebrated its tenth anniversary, during which time it has established a reputation for confronting the inequitable or unreasonable nature of any enactment or rule of law.
In addition, since the passage of the Freedom of Information Law 2007, an Information Commissioner has also operated to maximize access to government information and increase transparency as a critical component of Cayman’s democratic framework.
Both the complaints commissioner and freedom of information feature in Part VIII of the new Cayman Islands Constitution Order 2009 as “Institutions Supporting Democracy,” where they also joined by a Constitutional Commission, a Commission for Standards in Public Life and a Human Rights Commission.
In addition, the new Constitution also enshrines fundamental human rights for the first time. This is a belated, and all the more so significant, supplementary component in the overarching framework for good governance, not least because encompassed within the Bill of Rights, Freedoms and Responsibilities is a somewhat novel right to lawful administrative action.
Some commentators have been skeptical as to whether such a right adds anything meaningful to existing jurisprudence.2 However, the inclusion of this right, along with rights relating to the protection of children, the protection of the environment and enhanced provision in respect of education were conscious additions by the Cayman Islands over and above the baseline of the European Convention on Human Rights (ECHR) that it was obliged to incorporate.
Given the amount of time that was devoted to poring over the merits of these supplementary rights, it would be unfortunate if their potential were somehow not now realized. The right to lawful administrative action, in particular, should be embraced as an added boon to the various other institutions that support democracy, underscoring as it does the stated intention of the people of the Cayman Islands in the Constitution to be “a country with open, responsible and accountable government.”
As the first article concluded, it is these very virtues that may well hold the key to the future prosperity of the Cayman Islands. If this contention is correct, it would be useful to better understand what the right to lawful administrative action might actually entail. Unlike most of the rights in the new Constitution, there is little guidance to be drawn from the ECHR, or indeed from other Commonwealth Caribbean Constitutions. Instead, one must look elsewhere for instruction.
While the genesis of the right is often thought to be the constitutional turmoil of post-apartheid South Africa, the inclusion of a right to administrative justice in the 1993 Interim Constitution of the Republic of South Africa was preceded by a similarly termed, but less developed, right in the 1990 Constitution of the Republic of Namibia. These were closely followed by the adoption of a right to administrative justice in the 1994 Constitution of the Republic of Malawi, a right to just and fair treatment in administrative decisions in the 1995 Constitution of the Republic of Uganda and a right to just administrative action in the 1996 Final Constitution of the Republic of South Africa.
More recently, there has been renewed interest in the concept, with the right to lawful administrative action in the 2009 Cayman Islands Constitution sandwiched in between a right to fair administration in the 2008 Constitution of the Republic of Maldives and a right to fair administrative action in the 2010 Constitution of Kenya. Latterly, in the wake of the allegations of widespread corruption, a right to lawful administrative action, perhaps not coincidentally, found its way into a 2011 revision of the Turks and Caicos Islands Constitution.
All of these rights differ in their composition and content. Section 19 of the Cayman Islands Constitution provides that: (1) All decisions and acts of public officials must be lawful, rational, proportionate and procedurally fair; and (2) 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. This construction is distinguishable in a number of ways from the earliest articulation of the right in the Namibian Constitution, where Article 18 only requires that administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation; and that persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent court or tribunal.
The Namibian right is concerned, therefore, with the formation of an effective mechanism for challenging the actions of administrative officials and, like the 1996 South African Constitution and the 2010 Constitution of Kenya, it anticipates the enactment subsequent legislation in order to fully realize this goal. Pending any additional statutory direction, the Namibian right, however, is specifically limited to complying with the requirements of the common law and thus falls into the trap, which detractors have cautioned against, of merely codifying the common law. In contrast, notwithstanding that the Cayman Islands already has a mature system of judicial review, section 19 of the Cayman Islands Constitution potentially exceeds the parameters of common law protection.
One such example noted in the first article is the specific reference in section 19(1) to decisions and acts of public officials having to be proportionate, as well as lawful, rational and procedurally fair. This addition, it was suggested, ought to be interpreted as a response to the prolonged uncertainty surrounding the precise status of proportionality in the common law.
A similar explanation applies to the bespoke inclusion of reasonableness in the new constitutional arrangements in South Africa. As Bednar clarifies, in the pre-Constitutional era “review for unreasonableness was essentially regarded as not being a ground of review in itself,” and “would only be relevant if it was ‘so gross’ as to be ‘symptomatic’ of another ground of review.”3
Having been overlooked in the 1993 Interim Constitution, the addition of unreasonableness in section 33(1) of the Final Constitution was evidently an attempt to remedy this long-standing deficiency. Elsewhere, the Republic of the Maldives opted to omit reasonableness, but instead inserted, in Article 43 of its Constitution, the requirement that administrative action also be expeditious.
In Malawi, section 43 of the Constitution directs that administrative action be justifiable in relation to reasons given, thereby potentially broadening the common law protection afforded under the unreasonableness/irrationality ground of review; while in Kenya, Article 47 of its Constitution mandates that administrative action is not only lawful, reasonable and procedurally fair, but both expeditious and efficient as well. It is apparent therefore that each construction of the right has its peculiar nuances and that these variances generally reflect the particular needs of the jurisdiction.
The addition of proportionality in the Cayman Islands is not the only example where the right to lawful administrative action potentially departs from the existing common law. Another aspect of judicial review that the common law has grappled with is the notion that reasons should be provided for administrative decisions; yet despite advances in this area, Elliott has concluded that, “English law remains some distance from a general common law duty to give reasons.”4 Section 19(2) of the Cayman Islands Constitution, however, clearly articulates a general right to request and be given reasons for decisions or acts of public officials, albeit that this right is expressly limited to persons who have been adversely affected by such decisions or acts.
Having survived intensive scrutiny during the course of the modernization process, these distinctive features in the Caymanian exposition of the right were ultimately enshrined in the new Constitution. The question now is whether they will be allowed to flourish, or whether attempts will be made to read these provisions narrowly and to effectively water down their potential. Once again, experiences in other jurisdictions with similar rights may be instructive. In Malawi, for example, Chirwa has lamented the failure to liberate the new Constitutional right from its common law shackles.5 However, the Kenyan High Court at least appears to have grasped this nettle with its post-Constitutional affirmation that “relief for administrative grievances is no longer left to the realm of common law … but is to be measured against the standards established by the Constitution.”6
It remains to be seen how the courts in the Cayman Islands will approach this task. However, what is apparent is that the stakes are now higher than ever following the recent identification of the Cayman Islands as a high-risk country by the United Kingdom’s Financial Conduct Authority. Although the classification was subsequently withdrawn, the evaluation was not limited to the usual regulatory information pertaining to the financial services industry, but instead was also informed by, amongst other indicators, the Transparency International Corruption Perception Index and the Foreign and Commonwealth Office Human Rights Report.
This illustrates perfectly both the nexus between good governance and the future of the financial services industry in the Cayman Islands; and the importance of human rights, particularly where these hold out the promise of more accountable and transparent government. This is precisely what the right to lawful administrative action was intended to achieve, and while its incorporation in the Constitution may be somewhat “novel,” it is far from “dangerous.”7
Given recent developments, it may also prove to be most timely.
- Vaughan Carter, Friend or foe? The development of judicial review in the Cayman Islands, Cayman Financial Review, Third Quarter 2014, Issue 36
- M. Elliott and C. Forsyth, “A Right to Administrative Justice?” U.K. Const. L. Blog (10th October 2012) (http://ukconstitutionallaw.org).J. Bednar, “The Extent to which Review for Unreasonableness is Meaningfully Incorporated in the Promotion of the Administrative Justice Act No. 3 of 2000” (2006) (http://eprints.ru.ac.za/328/1/Bednar-MLaw.pdf).
- M. Elliott, “Has the Common Law Duty to Give Reasons Come of Age Yet?”  PL 56.
- D.M. Chirwa, “Liberating Malawi’s Administrative Justice Jurisprudence from its Common Law Shackles” (2011) 55(1) Journal of African Law 105.
- Geothermal Development Company Limited v. Attorney General & 3 others  eKLR (http://kenyalaw.org/caselaw/cases/view/87238).
- This terminology will be familiar to administrative lawyers. In Allied Dunbar (Frank Weisenger) Ltd. v. Frank Weisenger  IRLR 60, Millet J (as he then was) described proportionality as a “novel and dangerous doctrine”, which prompted Jowell and Lester to retort with: “Proportionality: Neither Novel nor Dangerous” in J. Jowell and D. Oliver (eds.), New Directions in Judicial Review (London, 1988).