Ombudsman finds against judicial commission

(CNS): The Judicial and Legal Services Commission‘s failure to update its outdated complaints procedure to bring it in line with the 2016 amendments to the Cayman Islands Constitution amounts to maladministration, Ombudsman Sharon Roulstone found in a ruling delivered last month. The ruling came out of a complaint filed by attorney Bilika Simamba, who has been locked in long-running legal disputes with the judiciary for almost a decade following allegations he made against judges in the wake of a personal civil case.

On 12 December 2022, Simamba lodged a complaint with the Office of the Ombudsman (OMB) alleging that the existing complaints policy of the Judicial and Legal Services Commission (JLSC) did not comply with the Cayman Islands Constitution.

After several months examining the case, the ombudsman notified the governor, who oversees the JLSC, in April last year that she was opening a formal investigation under section 18 of the Complaints (Maladministration) Act because of the apparent lack of an applicable complaints policy or procedure and the unreasonable delay in addressing the problem.

Roulstone steered well clear of the substance of the complaints that Simamba has made against members of the local judiciary, including the appeal court, which has previously accused him of launching an “ugly and abusive press campaign” against judges and issuing threats — see CICA (Civil) Appeal No 20 of 2021.

However, the ombudsman did find that maladministration had occurred in this case with the “extraordinary delay of some seven years” to bring the JLSC complaints policy in line with the Constitution.

In a summary of the OMB investigation, Roulstone referred to concerns that Simamba had raised about decisions made by former Chief Justice Anthony Smellie in 2019 and by the JLSC complaints committee in 2023, and stressed that the OMB had no jurisdiction to investigate that part of the complaint.

“You alleged that those decisions were ‘null and void’ for want of a lawful complaints policy, which may or may not be the case, but it is outside the authority for OMB to make a determination on that allegation,” she explained and said that the OMB investigation had focused on the complaints procedure issues.

Roulstone found that while there was a policy in place for making complaints against judges, it was both outdated and incompatible with the 2016 amendments to the Constitution. During the course of the investigation, the JLSC recognised that the complaints procedure on its website was deficient and in need of revision. However, the commission noted that Simamba was still able to make a complaint against a sitting judge.

“Although currently it may be argued there are no rules (something which is by no means certain), the President of the Court of Appeal has ultimate responsibility for adjudicating in respect of a complaint such as this… It is self-evident therefore that Mr Simamba has been able to make a complaint which has been considered,” the JLSC had stated to the OMB.

Roulstone pointed out that a deficient policy may still contain some applicable rules, and some of the JLSC’s policy remains active and relevant. She said government policies are living documents and may survive, at least in part, after legislative changes.

She told Simamba that his complaint “could still be (and was) heard under what was termed a deficient set of rules, and… whether that decision has now prejudiced your position is not for the OMB to review or investigate”.

Roulstone said that the JLSC had acknowledged that its procedure to make complaints against judges was deficient and needed to be updated to bring it in line with the amendments to the Constitution, but she noted that it was amended seven years ago.

“The CI Constitution indisputably makes it the JLSC’s responsibility for creating a relevant and effective policy for complaints handling. I found that maladministration occurred due to the failure of the JLSC to update its complaints policy for judges to bring it in line with the CI Constitution,” Roulstone stated.

The JLSC has now drafted a new complaints policy, which was posted on its website on 31 October 2023. However, the ombudsman concluded, “Given that the JLSC appears, at the very least, not to have acted with any urgency in complying with its constitutional responsibility to draft a complaints policy, I found that this extraordinary delay of some seven years amounts to maladministration.”

While the ombudsman has no power to take action in relation to the maladministration finding other than to make it public, the parliamentary committee that oversees the OMB can review its findings and make recommendations to parliament. However, since its creation, the meetings of this committee have never been made public, and none of its business has been published or commented on in parliament. The current chair is Bernie Bush MP (WBN).

See the ombudsman’s ruling in full below.