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CXC may Enjoy Immunity from Legal Process

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By Ravi Nanga

LAST week the Caribbean Examinations Council (CXC) released the results of the 2020 Caribbean Advanced Proficiency Examination (CAPE) and Caribbean Secondary Education Certificate examinations.

Since the release of these results there have been a regional outcry from stakeholders questioning the veracity of the results on the basis that there appeared to be various issues involving these results. Trinidad and Tobago joined the chorus of those countries expressing concern about the results.

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Based on the outcry a number of ministries of education from the region have met with CXC with a view to addressing the issues identified.

Thus far however, CXC, based on a press conference held, is maintaining that there were no problems with the results. Given the public outcry, the various stakeholders continue to remain concerned about the results and have telegraphed an intention to legally challenge CXC in order to address their concerns.

CXC was established in 1972 by an agreement between various participating governments, including Trinidad and Tobago.

One of CXC’s functions was the administration of regional examinations at the ordinary and advanced levels at the secondary school level.

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This agreement was given legal force in Trinidad and Tobago pursuant to the Caribbean Examinations Council Act, which commenced on June 5, 1987. This Act provided for the implementation of the 1972 agreement that gave rise to the formation of CXC in Trinidad and Tobago.

Although there has been no challenge to CXC in this jurisdiction, the relationship between the Ministry of Education and CXC has in fact been tested in our local courts on at least two occasions.

These were in the cases of Simon v The Permanent Secretary of the Ministry of Education, decided in October 2017, and more recently in July of this year, Visser v The Permanent Secretary, Ministry of Education. Both cases involved questions surrounding the Secondary Entrance Assessment Examination (SEA).

The principles stated in these two cases will be equally applicable to the CAPE and CSEC exams.

Unfortunately, as is apparent from the names of these cases, is the fact that CXC was not a party to these proceedings and these proceedings were brought against the Ministry of Education under the Freedom of Information Act, seeking information in relation to the SEA exam.

Both decisions recognised that while the exam paper belonged to CXC, the exam script that was produced by the student during the examination also belonged to the student, the student had a right of access to the exam script and the ministry, given its relationship with CXC, was obligated to request the information sought and provide assistance to the students.

Because CXC was not a party to these proceedings, unfortunately the courts did not have the opportunity to, and did not fully examine CXC’s liability on this issue, and further, it is unclear what will be the position if the ministry requested information from CXC, but CXC refused to provide the information requested.

Although the courts took the opportunity to comment on the relationship between the ministry and CXC and the fact that the ministry pays for the services provided by CXC and in this regard should be considered as a consumer with certain rights, including the ability to re-negotiate the relationship, this relationship has not been legally tested in our courts.

It remains to be seen how CXC will respond to a request for information from the ministry and how the courts will treat with CXC in the event an action is commenced against it.

Although CXC is a legal entity, commencing and maintaining an action against it may not be an easy task. In 2006 Trinidad and Tobago enacted the Caribbean Examinations Council (Privileges and Immunities) Act, which came into force on September 28, 2006.

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Pursuant to section 3(2) of that Act, CXC enjoys immunity, inter alia, from legal process. In addition to this general immunity from suit in respect of CXC, members of the council also enjoy certain immunities. Therefore, given the provisions of this act, it will appear that CXC may enjoy immunity from being sued in a court of law, meaning that a person may not be able to pursue a legal remedy against CXC.

Notwithstanding the fact that there is such immunity, the law on the question of immunity from suit is not a simple one and although a body may enjoy immunity from suit, in certain limited circumstances it may be possible to go behind such an immunity.

However, this is a complex issue that goes beyond the parameters of this article, and which will have to be tested in a court of law. In the event a person decides that they want to legally challenge CXC, the first hurdle they will have to cross in the event CXC decides to invoke this immunity will be to satisfy the court that the claim they wish to bring justifies the court going behind the immunity that CXC enjoys.

As can be appreciated, pursuing a remedy against CXC is not a simple issue, and it will be interesting to see how the Courts interpret the extent of the immunity that CXC enjoys, and in what circumstances a Court will be prepared to go behind this immunity.

Ravi Nanga is an attorney at law

[Please note that this article is intended only to provide general information on the topic being addressed and should not be taken as providing legal advice. In order to be properly advised it will be necessary for an attorney to examine the relevant documents and obtain the necessary instructions before properly advising as to rights and obligations]                  

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