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Colección: INTERAMER
Número: 35
Año: 1994
Autor: Kenny D. Anthony
Título: The Legal Framework of Education in the Organization of Eastern Caribbean States (OECS)

Constitutional Framework of Education

Consistent with the constitutions of other Commonwealth Caribbean States, none of the states of the OECS enshrine a fundamental right to education. Education is recognized only insofar that its activities should not infringe the exercise of other rights. Thus, in order to protect the freedom of conscience, a person attending, inter alia, any place of education “shall not be required to receive religious instruction or to take part in or attend any religious ceremony or observance if that instruction, ceremony or observance relates to a religion which is not his own.”7 This means that while Religious Education may be included in the curriculum of educational institutions, no child may be compelled to attend or to participate in activities or courses of a religious kind. Indeed, the constitutional prescription is fully obeyed in extant Education legislation, all of which make provision for “conscience clauses.” These provisions permit conscientious objectors to withdraw from religious education, instruction, school prayers, and other religious observations.8

With the exception of Antigua and Barbuda,9 the constitutions recognize the fundamental right of religious communities to establish and maintain places of education at their own expense and to manage any place of education which they maintain. Typically, the constitutions provide as follows:10
Every religious community shall be entitled, at its own expense, to establish and maintain places of education and to manage any place of education which it maintains; and no such community shall be prevented from providing religious instruction for persons of that community in the course of any education provided by that community whether or not it is in receipt of a government subsidy or other form of financial assistance designed to meet in whole or in part the cost of such course of education.
Though these provisions exist to protect the freedom of conscience, their ultimate effect is to compel the state to permit a mixed or dual system of education. Further, the provision denies the state absolute control of the school system and ensures that parents are offered alternative schools for the education of their children. It should be observed that the provisions do not protect the right of private entities other than religious bodies to establish schools. Arguably, therefore, subject to observing the fundamental rights of private schools in the same way that these rights apply to ordinary citizens, the state may control the establishment and regulation of private schools in the public interest.

However, in the case of Dominica, Saint Lucia, Saint Vincent and Saint Christopher, the state is empowered on two grounds to perform acts or to enact legislation which is inconsistent with the right of persons to refuse religious education and the right of religious communities to establish and maintain their schools. Firstly, any law which is enacted must be “reasonably required for the purpose of regulating educational institutions in the interest of the persons who receive or may receive instruction in them.”11 Secondly, the law or as the case may be, “the thing done under the authority [of the law in question],” must be reasonably justifiable in a democratic society.12

The fundamental rights and freedoms impact on education in other ways. Students, parents, teachers and other citizens are entitled to redress against the state and its public authorities for any infringement of their rights, inter alia, to secure the protection of the law, protection from deprivation of property, protection from discrimination on the grounds of race, sex, political affiliation or creed, and freedom of conscience, expression, movement, assembly and association.13 It is a matter of time before the constitutional waters are tested to determine the nature and extent of these rights on Education Law and practice.

Teachers who are employed by the state and are appointed in Saint Lucia by a Teaching Service Commission14 and elsewhere, except Montserrat, either by or on the advice of a Public Service Commission,15 are regarded as public officers. The commissions exist in the constitutions to insulate members of the teaching service and other public officers “from political influence exercised directly upon them by the government of the day.”16 The protection conferred by the constitutions means that teachers may only be removed for reasonable cause and after being given the opportunity to be heard.

Teachers suffer several constitutional disabilities. The constitutions, except that of Montserrat, permit the legislatures to impose restrictions on the freedom of movement, the freedom of expression, and freedom of assembly and association of public officers provided such restrictions “are reasonably required for the proper performance of their functions and except so far as [such restrictions] or, as the case may be the [things] done under the authority thereby [are] shown not to be reasonably justifiable in a democratic society.”17 In the case of Montserrat the legislature may enact laws that impose restrictions upon the freedom of expression of teachers,18 and the freedom of assembly and association of teachers who are public officers, provided that the provisions, or as the case may be, the thing done under the authority thereof, is reasonably justifiable in a democratic society.19 Unlike other Commonwealth Caribbean states, it is not necessary for the restrictions on the above freedoms of public officers to be reasonably required for the proper performance of their functions. However, it is a requirement that restrictions on the freedom of movement of teachers who are public officers be reasonably required “for the purpose of ensuring the proper performance of their functions.”20