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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)

Legal Implications of Discretionary Powers

The above discussion makes it clear that the powers of the administrative authorities in education are largely statutory. It does not, however, follow that other powers do not exist. In dealing with issues before them, the functionaries have both statutory and common law powers available to them. The Minister, the Chief Education Officer and even school principals can only do those things414 which the relevant statutes authorize them to do. If any of the named functionaries performs an unauthorized act, then the act in question may attract judicial scrutiny and may be declared to be ultra vires. Educational administrators “must confine their actions within the four corners of the empowering statutes.”415

Otherwise, the exercise of the powers may be challenged if the administrator fetters his discretion, acts at the dictation of another party, uses a discretionary power for an improper purpose, allows irrelevant considerations to determine decisions, acts so unreasonably that no reasonable authority could have done the act complained of, and improperly delegates powers conferred by statute.

It is not always easy to keep within the permissible boundaries of empowering statutes. Ministers must exercise particular care in enacting regulations permitted by Acts of Parliament. Their principal duty is to confine regulations to the prescribed purposes of the empowering statutes.

While the explanation of these various heads of ultra vires is beyond the scope of this paper, it would be wise if educational administrators familiarize themselves with the basic principles of judicial review.

Accountability for the Management of Education

Beyond the courts, there is a wider issue of accountability. The powers assigned to the Minister, the Chief Education Officer, and other functionaries are immense. The enactments do not, however, provide any mechanism to determine whether the powers have been utilized for the benefit of the educational enterprise. Education touches the community intimately. It is essentially a partnership between parents, ministries, teachers and interest groups. Accountability is, therefore, essential. A statutory review team should be appointed at intervals of five years to review the performance of the education system. The team should comprise persons external to the education system and could be mandated to:
(a) assess whether the education system is realizing the objectives set by national policies;
(b) identify weaknesses and make appropriate recommendations;
(c) consider the allocation of financial resources;
(d) identify weaknesses in individual schools and make recommendations;
(e) review scholastic performance; and
(f) recommend changes in policy if and where necessary;
(g) publish and distribute its report to the public.
Such reviews or reports would enhance accountability and give an independent judgment on the state of education.