A Supreme Court judge has blown the whistle on ?serious? flaws in the Human Rights Act which have prevented at least one complaint of discrimination being heard for over five years.

Justice Ian Kawaley made the damning comments in reference to a recent case involving a former female employee of the Salvation Army, who claims she was unfairly fired from her post as an addictions councillor in 1998 on the basis of her sex. Stephanie Burrows was abruptly let go by the Army after it was discovered she was having an ?inappropriate relationship? with one of her clients.

However, Ms Burrows subsequently forced the Army into an out-of-court financial settlement totalling $5,100 after claiming that a male colleague was only suspended and then reinstated for committing a similar offence.

She also filed a complaint of sexual discrimination with the Human Rights Commission on June 16, 1998 ? although the HRC?s eventual decision in favour of Ms Burrows was not accepted by her former employers.

Under the Act, if a decision by the HRC is not agreeable to both parties in a dispute, it is then up to the Minister of Labour to appoint a separate board of inquiry to adjudicate. In this particular case, this was in fact done in September 1999, but to this day that board has not met ? a delay of around five and half years.

In the recently concluded Supreme Court proceedings before Justice Kawaley, attorneys acting on behalf of the Government admitted there is currently a severe backlog ? 14 in total ? of human rights complaints dating back several years in some cases that have yet to be heard because of ?a number of logistical, staffing and financial considerations?.

However, attempts to resuscitate Ms Burrows? complaint earlier this year met with staunch opposition from the Army, with their lawyer John Cooper arguing that his client?s constitutional right to a fair hearing had been compromised by the lengthy delay in having the complaint heard. Mr. Cooper also termed Government?s excuse for the delays as ?mumbo jumbo?.

And in a highly detailed ruling, Justice Kawaley upheld the claim of the Army while pointing to major weaknesses in current human rights legislation which are preventing disputes from being dealt with in a ?timely manner? ? though the judge was quick to make clear that in his opinion it is entirely the system?s fault and not that of any one individual.

?This case serves to highlight serious institutional weaknesses in the administrative and adjudicative structure for managing human rights complaints which have been referred to a board of enquiry,? he wrote.

?These institutional weaknesses explain, but do not justify, the specific delay complained of by the Applicant (the Army) in the present case. The key institutional deficiencies cannot be cured without legislative action.?

It is ironic, Justice Kawaley went on, that the introduction of the Human Rights Act is quick to ?trumpet? the rights and freedoms guaranteed under the Bermuda constitution while the infrastructure is simply not in place to ensure these rights are always protected.

In comparison to other countries, most notably Canada, Justice Kawaley argued that there are a number of impediments ? written into the Act itself ? which undermine efforts to swiftly resolve complaints referred to boards of enquiry. These include:

l, which according to Mr. Justice Kawaley, could result in dangerous political interference in matters which should be dealt with by independent tribunals.

l. One independent human rights tribunal, admittedly with a flexible membership, would ?surely be an improvement on the existing regime? said Mr. Justice Kawaley.

?Conceptually, one human rights tribunal dealing with several cases would seem more manageable... It would also manifest a commitment on the part of the Government to establishing a permanent administrative structure to support the timely adjudication of human rights complaints which the Commission has not been able to settle.?

l. Under the current law, Mr. Justice Kawaley intimated, the two sides have no way of forcing the board of inquiry to proceed expeditiously and must instead wait indefinitely until the Ministry sets the wheels in motion.

?It is this flawed legislative structure, rather than individual inefficiency, which lies beneath the tepid explanation proffered on behalf of the Minister for the delays,? concluded Mr. Justice Kawaley.

?...(Government?s explanation) amounts to an admission that the Government has not made available sufficient resources to deal with board of enquiry proceedings in a timely manner, because conducting one proceeding at a time is, in my view, an inadequate response to the legislative and constitutional obligation to afford human rights complaints referred for adjudication to a fair hearing within a reasonable time.?

Minister of Labour Randy Horton could not be reached for comment last night.