Examining Legal Protections: The Immunities Afforded to the Caribbean Examination Council in Educational Pursuits

BY:NIKEIYA HENVILLE

Nikeiya Henville

Attorney-at-Law

Martin Anthony George & Company

The Caribbean Examinations Council (hereinafter referred to as “CXC”) is a regional examining body which provides examinations for secondary and post-secondary candidates in Caribbean countries. Established in 1972 under the Agreement Establishing the Caribbean Examinations Council, CXC plays a significant role in shaping the academic landscape in the Caribbean. CXC notably offers a wide range of subjects in academic, technical, and vocational areas for candidates of varying ages, abilities, and interests, and comprises sixteen (16) Participating Countries namely; Anguilla, Antigua and Barbuda, Barbados, Belize, British Virgin Islands, Cayman Islands, Dominica, Grenada, Guyana, Jamaica, Montserrat, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago and Turks and Caicos Islands.[1]

Given the crucial role that CXC plays in Caribbean education, the organization is granted specific immunities to safeguard its ability to operate effectively and contribute to its operational independence. These immunities shield CXC from legal action and are crucial for the smooth operations of CXC, allowing them to uphold academic standards without constant legal challenges. This article therefore explores the legislative measures that support these immunities.

LEGISLATION: –

The specific legislation granting immunity to CXC varies with each country in the Caribbean region. However, it generally falls under the legal framework which establishes and governs the operations of CXC.

The Agreement Establishing the Caribbean Examinations Council 1972

The Agreement Establishing the Caribbean Examinations Council (hereinafter referred to as “the Agreement”) is a document that was signed in 1972 by the said participating countries, formalizing the creation of CXC as a regional institution dedicated to the development of educational assessment in the Caribbean. This document outlines the legal framework, objectives, and operational structure of CXC. This Agreement also makes provision for participating countries to incorporate Protocols related to immunities granted to CXC where it states:

“Article VIII

Legal Capacity

2. The legal capacity, privileges, and immunities to be recognized and granted by Participating Governments in connection with the Council shall be laid down in a Protocol to this Agreement.”

This Agreement and its provisions specifically relating to the immunities and privileges afforded to CXC have been incorporated into the domestic laws of the participating Caribbean countries through the local legislative architecture which gives full effect to the provisions outlined in the said Agreement.

These Legislative Provisions are identified as follows: –

TRINIDAD AND TOBAGO:

Caribbean Examinations Council Act Chapter 39:01 Trinidad and Tobago

The Caribbean Examinations Council Act Chapter 39:01 of Trinidad and Tobago provided for the implementation of the said Agreement within Trinidad and Tobago.  Section 3 of the said Act incorporates Article VIII as hereinabove stated, which provides for the privileges, and immunities of CXC to be laid down in a Protocol to the said Agreement.

Trinidad and Tobago by virtue of the Caribbean Examinations Council (Privileges and Immunities) Act Chapter 17:07, an Act which gives effect to the said Protocol on Privileges and Immunities of the Caribbean Examination Council, in Part II, delineates specific Immunities granted to the CXC within Trinidad and Tobago. The outlined immunities and privileges are expressed as follows:

“3. (1) The Caribbean Examinations Council shall enjoy the following privileges:

1. the inviolability of the premises of the Council;
2.  the inviolability of the archives of the Council;
3. exemption from foreign exchange controls;
4.  exemption from taxes, customs duties, and import or export duties; and
5.  facilitation in respect of its communications and the right to dispatch or receive papers and correspondence by courier in sealed bags.”

The section further states in section 3(2) that CXC shall enjoy most notably, immunity from legal process and from search acquisition, confiscations, expropriation, and any other forms of interference whether legislative, administrative, or judicial in respect of property, funds, and assets.

These immunities and privileges are not only afforded to CXC as a body but also to members of the council specifically wherein it states:

“4. (1) Members of the Council shall enjoy the following privileges:

1. inviolability of all papers, documents, and materials related to the work of the Council;
2. exemption from immigration restrictions, alien registration requirements, and national service obligations;
3.  the same protection and repatriation facilities in times of international crisis as are afforded representatives of foreign Governments on temporary official missions; and
4.  the same privileges and facilities in respect of currency and exchange restrictions as are accorded to representatives of foreign Governments on temporary official missions.

(2) Members of the Council shall enjoy the following immunities:

1. immunity from legal process in respect of words spoken or written and all acts performed by them in their official capacity;
2.  immunity from personal arrest or detention in relation to acts performed by them in their official capacity; and immunity from inspection and seizure of personal and official baggage”

Notably, Officials of CXC are similarly afforded the privileges and immunities afforded to CXC and its Members as provided in Section 5(1). Most notably, Section 5(1)(2) also affords Officials of the CXC the following immunities:

“(2) Officials of the Council shall enjoy the following immunities:

1. immunity from legal process in respect of words spoken or written and all acts done by them in the course of the performance of official duties; and

• immunity from personal arrest or detention in relation to acts performed by them in their official capacity.”

BARBADOS: –

Caribbean Examinations Council (Incorporation) Chapter 39B Barbados

Similar to the Caribbean Examinations Council Act Chapter 39:01 of Trinidad and Tobago, this Act provides for the implementation by Barbados of the Agreement establishing CXC, also incorporating Article VIII of the Agreement Establishing the Caribbean Examinations Council in the Schedule thereto.

GUYANA: –

Caribbean Examinations Council Act Chapter 39:12 Guyana

The proviso of section 4 (2) of Guyana’s Caribbean Examinations Council Act, Chapter 39:12 states that the CXC’s administrative and operational centres shall enjoy the privileges and immunities set out in Guyana’s Privileges and Immunities (Diplomatic, Consular, and International Organisations) Act. By section 1 of the Fifth Schedule of the said Privileges and Immunities (Diplomatic, Consular, and International Organisations) Act, CXC is “immune from suit and legal process”, and is therefore exempt from legal suits within the jurisdiction of Guyana.

JAMAICA: –

Diplomatic Immunities and Privileges (Caribbean Examinations Council) Order 1998

In Jamaica, Article III (I) of the Diplomatic Immunities and Privileges (Caribbean Examinations Council) Order 1998 (hereinafter referred to as “the Order”), made under the Diplomatic and Immunities Act, avails CXC with “immunity from every form of legal process…” unless it waives same so that the CXC is also immune from legal suit within the jurisdiction of Jamaica.

As recently as 2015, the Supreme Court of Jamaica reaffirmed this immunity afforded to CXC in the case of CXC v. The Industrial Disputes Tribunal [2015] JMSC Civ.44.  This case dealt with an application for judicial review of a decision by the Industrial Disputes Tribunal (hereinafter referred to as “IDT”) which arose from a referral to the IDT by the Minister of Labour pursuant to section 11 A (1)(a)(ii) of the Labour Relations and Industrial Disputes Act (LRIDA). CXC argued that it was entitled to immunity from legal process and that the IDT had no jurisdiction over the dispute. However, the Respondent argued that the term “legal process” did not include the IDT’s process for settling industrial disputes.

On a determination of the application, the Court considered various factors, including the issue of CXC’s immunity from legal action before the IDT. In examining this issue, the court took into account Part I of the Second Schedule to the Order which grants CXC the immunity from suit and legal process as well as the inviolability of their official archives and premises.

The Court further stated in paragraph 37:

“[37] The import and purpose of Article V (5) of the Agreement together with Article III (1) of the Order, are to ensure “the smooth and efficient performance of diplomatic duties”, consistent with the preamble to the Vienna Convention on Diplomatic Relations. In other words, the immunity is granted on the basis of functional necessity, in respect of the CXC’s Administrative and Operational Centre in Jamaica.”

In determining the meaning of ‘legal process’ and whether the IDT was considered a legal process within the meaning of the Act, the Court cited the following definition:

“[56] Borrowing from, and at the risk of over-simplifying what is referred to as the “legal process school”, I define “legal process” as a structure of decision-making processes, of which quasi-judicial decision-making is one form.”

The Court also considered the case of Amartunga v Northwest Atlantic Fisheries Organisation [2013] 3 S.C.R. 866, wherein it was stated as follows:

“As a legal term, process is a word of comprehensive signification. In its broadest sense, it is equivalent to ‘proceedings’ or ‘procedure’ and may be said to embrace all the steps and proceedings from its commencement to its conclusion. ‘Process’ may signify the means whereby a Court compels compliance with its demands. Every unit is of course, a process, and in the narrowest sense the term ‘process’ is limited to writs or writings issued or out of a Court under the seal of the Court and returnable to the Court.”

The Court determined that the IDT met the definition of ‘legal process’ as per the act, thereby exempting CXC from the decision of the IDT. The Court also addressed the argument that the scope of CXC’s immunity from legal process was too broad, and in considering this argument the Court stated as follows:

“[67] In Akehurst’s Modern Introduction to International Law, 7th Ed., 129, it is reasoned that if there were no provision for immunity from all legal process then the international body would be at risk of having its functions interfered with by “…a combination of eccentric litigants and biased courts.” It is also for that reason that its premises, assets, archives, and documents are inviolable. The rationale encompasses the staff of an international body being exempt from income tax on their salaries.”

The Court further relied on the U.S Court of Appeal in the case Mendaro v. World Bank ((1983), 230 U.S. App. D.C. 33) wherein it was stated:

“[43] International organization immunity from employment suits is an accepted doctrine of customary international law which, inter-alia, “…is rooted in the need to protect international organizations from unilateral control by a member nation over the activities of the international organization within its territory” and justified because “ [the] sheer difficulty of administering multiple employment practices in each area in which an organization operates suggests that the purposes of an organization could be greatly hampered if it could be subjected to suit by its employees worldwide.”

The Court concluded that the boundaries of immunity granted to CXC were not and should not be restricted. The Court stated that the purpose of the Diplomatic Immunities and Privileges Act and the Order are to grant an absolute immunity to the CXC from legal processes including those that are pursuant to the LRIDA from which the Respondent derived its jurisdiction. The Court, therefore, determined that the IDT’s decision would be quashed for lack of jurisdiction, as the hearing of a dispute involving CXC violated the principle of “international organization immunity”.

Similarly, in the Barbadian case of CV0400/2021 Chole Weekes, et al v. The Caribbean Examination Council, et al (unreported), the Claimants, (a group of students) sought judicial review of the process of the 2020 Caribbean Examinations Council (CXC) examinations and the format of the examinations. The Claimants sought the following reliefs, inter alia:

1. A declaration that the examination process and means of assessment for the academic year 2020-2021 in relation to the Caribbean Advanced Proficiency Examination (CAPE) and Caribbean Secondary Education Certificate (CSEC) examinations implemented on May 26^th, 2021 and endorsed by the Ministry of Education is irrational, unreasonable and therefore unlawful;
2. A declaration that the examination and assessment process implemented in relation to the students by CXC for both CAPE and CSEC level tests for the 2019-2020 academic year was irrational and unreasonable and therefore unlawful;
3. A declaration that the Council’s decision in the prevailing circumstances to implement the examination and assessment process for the 2019-2020 and 2020-2021 academic years was, and is manifestly unreasonable and an abuse of discretion/authority;
4. An order quashing the final grades issued to the affected class of persons represented in this action by CXC for the June 2020 examination; and an order mandating that the regional body review the claimants’ submissions for the July/August 2020 examinations applying a methodology that is fair, transparent and reasonable in all of the prevailing circumstances.
5. An injunction restraining CXC, whether by itself and/or its agents or otherwise howsoever, from destroying all 2020 examination scripts until the final determination of this matter;
6. An injunction restraining CXC from administering the 2021 examinations as proposed and an order mandating that the CXC review and amend the assessment process for the 2021 examinations prior to administering them.

Following submissions from both sides, the Court ruled that CXC was recognized as an intergovernmental organization, possessing legal immunity against lawsuits and legal proceedings. Consequently, the Court held that it lacked jurisdiction to scrutinize the regional body’s actions regarding its cross-jurisdictional obligations in administering the CXC examinations, and as such the claim was therefore dismissed.[2]

These cases are relevant to the Caribbean jurisprudence as they highlight the fundamental and extensive nature of CXC’s immunity, emphasizing its crucial importance. They affirm the absolute nature of CXC’s immunity, except in such situations where such immunities are explicitly waived.

CONCLUSION: –

The immunities granted to CXC are vital and far-reaching, as evidenced by the legislation and cases. This underscores the organization’s ability to operate independently in fulfilling its educational mandate across the Caribbean region. The absolute nature of CXC’s immunity, save for instances of explicit waiver, reinforces its resilience in navigating diverse legal landscapes. As CXC continues to operate in the Caribbean region these immunities are paramount for CXC’s effectiveness and commitment to ensuring educational excellence within the said region.

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[1] About CXC | Caribbean Examinations Council

[2] Court has no jurisdiction to review exam body’s actions – Barbados Today

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Examining Legal Protections: The Immunities Afforded to the Caribbean Examination Council in Educational Pursuits