<<Biblioteca Digital del Portal<<INTERAMER<<Serie Educativa<<The Legal Framework of Education in the Organization of Eastern Caribbean States (OECS)
Autor: Kenny D. Anthony
Título: The Legal Framework of Education in the Organization of Eastern Caribbean States (OECS)
An examination of the laws governing education in the Organization of Eastern Caribbean States (OECS) is not only necessary but timely. In some countries, the existing laws are limited in their scope and application, and are of questionable legal relevance. In others, the laws are fairly recent but glaring in their omissions.
Increasingly, too, the decisions of functionaries within the educational systems are being challenged in the courts of the region. The challenges have come not only from dissatisfied teachers and principals, but ironically, in one instance, from a Barbadian Minister of Education against the decisions of two principals. In the Attorney General of Barbados v. Barker and Pilgrim,1 the Attorney-General sought declarations that the two principals had no authority, without the approval of or permission of the Minister, to admit and/or admit on transfer from other schools pupils who did not qualify for admission to the respective schools in accordance with the rules governing competition in the common entrance examination for Secondary Schools. The action failed. For reasons which are not material here, the Minister relied on a regulation which was thought to empower the Minister to determine the qualifying marks of students who sat for common entrance examinations. The regulation was found to be ultra vires its parent Act. The Court held that the Education Act empowered the Minister to make regulations respecting the qualifying examinations for admission to educational institutions [not] to determine the qualifying mark of a pupil in the Secondary Schools Entrance Examination for admission to a Secondary School. Interestingly, the Court declared that circulars from the Ministry dealing with common entrance examinations are mere administrative directions designed for the proper functioning of the Ministry of Education and its departments. They do not have the force of law. They do not create legal rights.
Further afield, two Belizean teachers questioned their purported transfers from posts within one educational institution to the other and succeeded.2 In another well known Saint Lucia case, two teachers sought to impugn the decision of the Teaching Service Commission to dismiss them in accordance with a regulation that allowed for the dismissal of unmarried teachers on becoming pregnant on a second occasion. They relied, inter alia, on a provision in a collective bargaining agreement committing the government to repealing the legislation. In the face of the extant regulation, the Court of Appeal declined to enforce the collective agreement.3 In Antigua, the decision of the Public Service Commission to dismiss six teachers was nullified on the grounds that the commission had not observed certain rules of natural justice prescribed by regulations enacted for that purpose by the commission.4 In Trinidad and Tobago, teachers, through their union, questioned the constitutionality of an Act of Parliament authorizing the Government to reduce their salaries, but failed.5 In another case, the Privy Council told an aggrieved teacher that he had no constitutional right not to be transferred from his post, and that rather than approaching the Courts directly, he should first utilize the remedies available under the relevant regulations.6
The above cases dramatize the increasing use of the courts as the arena for the resolution of disputes in the education sector. While most of the cases dealt with disputes between teachers and their employers, there is every likelihood that the resort to the courts will find expression in other areas of law. The possibility that parents will bring civil suits against teachers personally or against their employers, or against both, may no longer be remote. It may well be that cases of this nature have not reached the courts because the parties to the disputes have settled the matters out of court. Already, in a bid to deal with escalating violence between and among students and between students and their teachers, the courts have evinced a willingness to impose criminal sanctions on the guilty offenders.
In a sense, the resort to the courts is consistent with the increasing disposition to turn to the law to resolve disputes. Of more concern to education, however, is the possibility that the traditional methods of control are unable to cope with the new problems. Twenty years ago, it would have been unthinkable for a teacher to take an employer to court. If corporal punishment bordered on assault, it was highly unlikely that the parents of the student would seek monetary compensation. Indeed, the community would frown on parents who sought monetary redress from teachers, ostensibly for doing their work. Such responses are no longer predictable.
In reviewing the law governing education in the OECS, it must be borne in mind that the source of the law is twofold, statutory and common law. Statute establishes, inter alia, the institutional framework, the powers of the leading functionaries, the rights and disabilities of teachers, the content of education, and the terms and conditions governing employment in the teaching service. On the other hand, the law governing the civil liability of parents, teachers, administrators and the state is largely common law. The applicable law must, therefore, be discovered through decided cases.
This book is essentially an exposition on the statutory framework governing the organization and delivery of education services in the independent states of Antigua and Barbuda, the Commonwealth of Dominica, Grenada, Saint Christopher (Saint Kitts) and Nevis, Saint Lucia, Saint Vincent and the Grenadines as well as the dependent territory of Montserrat. The paper commences with an examination of the constitutional framework governing education and an overview of the legislation presently in force in each state. Thereafter, it describes the legislation governing pre-school education, primary and secondary education, tertiary education, nonformal education, the financing of education, the management of the educational enterprise, the status of private schools, the scope for judicial review of discretionary powers in education, and the question of accountability for the management of education. The book concludes that a basis exists for the enactment of new and common legislation for the member states of the OECS.
Kenny D. Anthony