Final Case Report — 4/06
Printable Version
Introductory Explanatory Note
At the time at which this complaint was accepted by the Cayman Islands Human Rights Committee (“HRC”), the HRC was still in the process of producing guidance for the public that establishes precisely what a complainant can expect of the HRC, whilst the HRC is investigating and reporting on a complaint.
Although a final report is clearly anticipated, as the culmination of the investigative process that is initiated when any complaint is accepted, the HRC was concerned that it had not adopted and articulated its policy on whether the name of the complainant would be included in the final report when it is published.
Without clearly establishing this in advance, the HRC was mindful that the complainant could assert that s/he had an expectation of privacy and that this would be breached if the complainant’s name was identified in the final report. Accordingly, the name of the complainant has not been included in this final report.
In this particular case, the government entity; against whom this complaint was made; responded positively to inquiries made on behalf of the HRC, which ultimately resulted in an amicable resolution being reached. Recognising the efforts made by the government entity to respect human rights; and in light of the fact that the complainant has not been identified in this final report; the HRC was of the opinion that it would be unfair to identify the government entity involved in this case. Accordingly, the name of the government entity has not been included in this final report.
Notwithstanding the absence of the names of the parties in this case, the HRC is convinced that there is still much to be gained by issuing a final report in this case. Indeed, the responsiveness of the government entity concerned and amicable resolution both provide valuable lessons on how human rights can be tangibly advanced in the Cayman Islands.
The HRC also acknowledges the need for a definitive operational document to augment its Terms of Reference and has undertaken to prioritise the production and publication of this guidance.
Reception of Complaint
On the 23rd February 2006, with the approval of the complainant, this matter was referred to the HRC from the Office of the Complaints Commissioner. Since this matter concerned a contract for services with a government entity, which is specifically exempted form the remit of the Office of the Complaints Commissioner in Schedule 2 to the Complaints Commissioner Law 2003, the Complaints Commissioner was precluded from investigating this matter.
This synergy between the Office of the Complaints Commissioner and the HRC is indicative of the fact that these two bodies perform differing but nevertheless complimentary functions. As the nature of the relationship between the Office of the Complaints Commissioner and the HRC is an issue that has been brought to the attention of the HRC, the HRC has decided to take this opportunity to identify, for the public, their different but complimentary functions, which are laid out at the end of this report.
Receipt of the complaint was recognised in writing by the HRC on the 14th March 2006 and the matter was tabled for initial consideration at the HRC’s next meeting on the 29th March 2006.
The matter was circulated to all HRC members in advance of the March meeting of the HRC, following which one of the members of the HRC, with an interest in the matter, requested permission to approach the government entity concerned, with a view to addressing the concerns of the complainant. This permission was granted and the government entity approached.
At its meeting on 29th March, the HRC formally accepted this complaint. In addition, it was reported that the government entity had agreed to meet with the complainant and that an acceptable outcome for all parties appeared possible. With this information at hand, the HRC agreed to pursue a friendly settlement of this dispute through on-going dialogue, rather than referring the case to its Procedural Sub-Committee for investigation.
Nature of Complaint
The reason for the complainant’s concern, first addressed to the Complaints Commissioner, and latterly referred to the HRC, was the proposed insertion of a clause in a contract of employment with a government entity, which expressly prohibited the complainant speaking about his religion.
The complainant, a Rastafarian, asserted that this action was discriminatory in that it singled out his particular religion for special disadvantageous treatment.
Although the HRC was never called upon to make a final determination as to whether this action did breach any of the international human rights treaties that have been extended to the Cayman Islands, the HRC was sufficiently concerned by the proposed action to admit the complaint and embark upon seeking a resolution that would remove the offending clause.
In order to admit the complaint and to take the course of action that it did, the HRC accepted that there was at least a prima facie case of religious discrimination, sufficient to engage Article 9, either on its own; or in conjunction with Article 14 of the European Convention on Human Rights.
The European Convention on Human Rights was extended to the Cayman Islands, via Jamaica, on the 23rd October 1953. Article 9 protects freedom of religion; Article 9(1) providing that:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
In addition, Article 14 of the European Convention on Human Rights provides in respect of the prohibition of discrimination:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political, or other opinion, national or social origin, association with a national minority, property, birth or other status.
The HRC is cognizant that there are limitations to most human rights and does accept that there is some scope for disagreement as to whether these facts would amount to a breach of the European Convention on Human Rights. However, as an amicable settlement was pursued, and ultimately reached in this case, the HRC was not required to investigate the legal aspects of this complaint further. Accordingly, this final report does not provide a detailed assessment of whether the European Convention on Human Rights was breached.
In settling this dispute through negotiation between the parties, the HRC was able to avoid legal complexities and to facilitate a position whereby the Cayman Islands was not just in compliance with international human rights standards; but, were these facts not to amount to a breach of the European Convention on Human Rights, the recognition of human rights in the Cayman Islands would exceed the minimum standards enshrined in the international treaties.
The Settlement of the Complaint
Following discussions involving the complainant, the government entity concerned and the HRC, the government entity agreed to remove the offending clause in the contract of employment.
The complainant confirmed with the Deputy Chair of the HRC that this addressed the concern that had led to the initial complaint to the Complaints Commissioner and the complainant’s consent for the matter to be referred to the HRC.
The resolution of this case was formally recorded and the complainant notified in writing on the 9th June 2006.
The HRC is thankful for the assistance that it received from the government entity concerned in this case and hopes that this will serve as model in future cases. Indeed, the HRC would be willing to publicly acknowledge this assistance if the government entity was amenable.
The Relationship between the HRC and the Office of the Complaints Commissioner
As a postscript to this final report, the HRC has decided to take the opportunity to identify and distinguish its role form that of the Office of the Complaints Commissioner.
The distinction between a Human Rights Committee or Human Rights Commission on the one hand, and an ombudsman’s office or Complaints Commissioner on the other, is well established. Professor John Hatchard, in his background paper for the conference on Commonwealth Human Rights Institutions in 1997, identified the following differences:
Human Rights Committees or Commissions are multi-member bodies whilst an office of the ombudsman is headed by a single individual.
Human Rights Committees or Commissions base their jurisdiction specifically on human rights norms whilst the prime concern for the ombudsman is the investigation of complaints from individual members of the public alleging “maladministration” by public officials.
An office of the ombudsman investigates complaints against public sector officials whilst the functions of Human Rights Committees or Commissions often extend to the private sector.
Unlike an ombudsman, a Human Rights Committees or Commissions has a specific mandate to promote human rights.
Human Rights Committees or Commissions undertake a variety of other human rights-related functions, such as reviewing proposed legislation for compliance with human rights.
If a complaint is upheld, an ombudsman has no enforcement powers and is generally restricted to making recommendations to resolve the matter. Human Rights Committees or Commissions enjoy wider powers, including in some cases, the power to enforce decisions.
In the context of the Cayman Islands, this last difference is not applicable. The Cayman Islands HRC enjoys no such enforcement powers and, by contrast, may only issue advisory reports and to encourage respect for these. This compares unfavourably with the Office of the Complaints Commissioner, which benefits not only from being a creation of the constitution, but also from the coercive force of its reports that are laid before the Legislative Assembly.
Nonetheless, even without a power of enforcement, the HRC does augment the Office of the Complaints Commissioner in the Cayman Islands. Without the HRC, there would be no domestic body in the Cayman Islands that specifically promotes the range of human rights which have been extended through international treaties to the Cayman Islands. The HRC and the Office of the Complaints Commissioner therefore compliment one-another; offering alternative avenues for addressing differing grievances.
Last Updated: 2007-01-11