By Ravi Nanga
LAST week we examined the immunity from legal proceedings that is enjoyed by the Caribbean Examinations Council (CXC) and the difficulties that can be faced in the event legal action is commenced against the body.
It has however been reported that the Caribbean Court of Justice (CCJ) may be approached in the search for a remedy against CXC.
Ignoring for a moment the immunity that CXC enjoys, it must be understood that the CCJ exercises two concurrent jurisdictions:
- The first is the appellate jurisdiction, where it is the final Court of Appeal for Barbados, Belize and Guyana, just as the Privy Council is the final Court of Appeal for Trinidad and Tobago.
- The second is what is known as the original jurisdiction, where the CCJ enforces the Revised Treaty of Chaguaramas, which treaty, broadly stated, defines the relationship between the member countries of CARICOM.
If there is a direct challenge to CXC it will be under the Original jurisdiction of the CCJ.
The question therefore is, whether CXC is subject to the original jurisdiction of the CCJ given that CXC is a regional body.
Unfortunately, it appears that CXC may not be subject to the jurisdiction of the CCJ, as it is not recognised as one of the regional bodies in the Revised Treaty of Chaguaramas.
As we saw last week CXC was established in 1972. Although the revised treaty was formulated in 2001, there was no mention of CXC as one of the regional bodies that falls within the jurisdiction of the CCJ.
While the CCJ’s jurisdiction over CXC has never been tested, in 2018 a law student sought to challenge the Council of Legal Education in the CCJ over the admission procedure to the Regional Law Schools.
In the case of Jones v Council of Legal Education, Council for Human and Social Development and Council for Trade and Economic Development;  CCJ 2 (OJ), the CCJ examined whether it had jurisdiction over the Council of Legal Education. The Council of Legal Education is the regional body that is responsible for the training of attorneys-at-law at the three regional law schools.
Like CXC, the Council of Legal Education was established by an agreement in 1971 between a number of regional countries. Like CXC, although the Council was established in 1971, when the revised treaty was formulated in 2001, no mention was made of the council or the agreement establishing the council in the revised treaty.
Although the applicant in Jones argued that the CCJ should find that it had jurisdiction over the council, the CCJ unfortunately declined jurisdiction and held that it could not grant relief against the council.
At paragraph 14 of the judgment the CCJ stated quite clearly that “The Court is satisfied, at this stage, that it has no jurisdiction over the Council and orders that the application for Special Leave to commence proceedings against the Council be dismissed…”
Accordingly, the CCJ found that the council was not subject to its jurisdiction, and the court could therefore not grant any relief against the council.
Given the similarity between the establishment of CXC and the Council of Legal Education, the further similarity between their respective functions, and the fact that CXC is not mentioned in the revised treaty, just as the council was not mentioned, suggests that should a person seek to challenge CXC in the CCJ, it is very possible that any such action may be met with a similar fate as the application in Jones.
As was seen last week, it is difficult to pursue a remedy against CXC in the courts, however, this is unchartered territory and it may be necessary to test the system.
While we are accustomed to pursuing our remedies in a court of law, it must be remembered that there are other avenues by which to seek a remedy, without having to resort to the courts.
One such avenue is protest action. Another avenue is writing to members in government. We have seen that there were widespread protests against CXC this year across the region and a number of ministers of education, including the minister of education from our country, being approached by citizens in relation to complaints against CXC, causing these minsters to contact CXC.
This protest action and the action of the various ministers have yielded some results in that CXC has agreed to, and has in fact set up an independent committee in order to look into their operations.
Therefore, while it may be difficult to proceed against CXC in the courts, it is possible to exert other forms of pressure on CXC in order to obtain relief where persons are of the view that they are entitled to relief. Such action, as we have seen, can yield some positive results.
[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]