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<\/figure><\/div>Nikeiya Henville<\/p>
Attorney-at-Law<\/p>
Martin Anthony George & Company<\/p>
<\/p>
<\/p>
The Caribbean Examinations Council (hereinafter referred to as \u201cCXC\u201d) 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]<\/a><\/p> 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.<\/p> LEGISLATION: –<\/u><\/strong><\/p> 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.<\/p> The Agreement Establishing the Caribbean Examinations Council 1972<\/p> The Agreement Establishing the Caribbean Examinations Council (hereinafter referred to as \u201cthe Agreement\u201d) 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:<\/p> \u201cArticle VIII<\/em><\/p> Legal Capacity<\/em><\/p> 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.\u201d<\/em><\/p> 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.<\/p> These Legislative Provisions are identified as follows: –<\/p> TRINIDAD AND TOBAGO:<\/strong><\/p> Caribbean Examinations Council Act Chapter 39:01 Trinidad and Tobago<\/p> 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.<\/p> 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:<\/p> \u201c3. (1) The Caribbean Examinations Council shall enjoy the following privileges:<\/em><\/p> 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.<\/p> These immunities and privileges are not only afforded to CXC as a body but also to members of the council specifically wherein it states:<\/p> \u201c4. (1) Members of the Council shall enjoy the following privileges:<\/em><\/p> (2) Members of the Council shall enjoy the following immunities:<\/em><\/p> 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:<\/p> \u201c(2) Officials of the Council shall enjoy the following immunities:<\/em><\/p> BARBADOS: –<\/strong><\/p> Caribbean Examinations Council (Incorporation) Chapter 39B Barbados<\/p> 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.<\/p> GUYANA: –<\/strong><\/p> Caribbean Examinations Council Act Chapter 39:12 Guyana<\/p> The proviso of section 4 (2) of Guyana\u2019s Caribbean Examinations Council Act, Chapter 39:12 states that the CXC\u2019s administrative and operational centres shall enjoy the privileges and immunities set out in Guyana\u2019s 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 \u201cimmune from suit and legal process\u201d, and is therefore exempt from legal suits within the jurisdiction of Guyana.<\/p> JAMAICA: –<\/strong><\/p> Diplomatic Immunities and Privileges (Caribbean Examinations Council) Order 1998<\/p> In Jamaica, Article III (I) of the Diplomatic Immunities and Privileges (Caribbean Examinations Council) Order 1998 (hereinafter referred to as \u201cthe Order\u201d), made under the Diplomatic and Immunities Act, avails CXC with \u201cimmunity from every form of legal process\u2026\u201d unless it waives same so that the CXC is also immune from legal suit within the jurisdiction of Jamaica.<\/p> 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.<\/u> <\/em> <\/strong>This case dealt with an application for judicial review of a decision by the Industrial Disputes Tribunal (hereinafter referred to as \u201cIDT\u201d) 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 \u201clegal process\u201d did not include the IDT\u2019s process for settling industrial disputes.<\/p> On a determination of the application, the Court considered various factors, including the issue of CXC\u2019s 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.<\/p> The Court further stated in paragraph 37:<\/p> \u201c[37] The import and purpose of Article V (5) of the Agreement together with Article III (1) of the Order, are to ensure \u201cthe smooth and efficient performance of diplomatic duties\u201d, 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\u2019s Administrative and Operational Centre in Jamaica.\u201d<\/em><\/p> In determining the meaning of \u2018legal process\u2019 and whether the IDT was considered a legal process within the meaning of the Act, the Court cited the following definition:<\/p> \u201c[56] Borrowing from, and at the risk of over-simplifying what is referred to as the \u201clegal process school\u201d, I define \u201clegal process\u201d as a structure of decision-making processes, of which quasi-judicial decision-making is one form.\u201d<\/em><\/p> The Court also considered the case of Amartunga v Northwest Atlantic Fisheries Organisation [2013] 3 S.C.R. 866<\/u><\/em><\/strong>, wherein it was stated as follows:<\/p> \u201cAs 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.\u201d<\/em><\/p> The Court determined that the IDT met the definition of \u2018legal process\u2019 as per the act, thereby exempting CXC from the decision of the IDT. The Court also addressed the argument that the scope of CXC\u2019s immunity from legal process was too broad, and in considering this argument the Court stated as follows:<\/p> \u201c[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 \u201c\u2026a combination of eccentric litigants and biased courts.\u201d 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.\u201d<\/em><\/p> 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)<\/u><\/em> <\/strong>wherein it was stated:<\/p> \u201c[43] International organization immunity from employment suits is an accepted doctrine of customary international law which, inter-alia, \u201c\u2026is 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\u201d and justified because \u201c [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.\u201d<\/em><\/p> 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\u2019s decision would be quashed for lack of jurisdiction, as the hearing of a dispute involving CXC violated the principle of \u201cinternational organization immunity\u201d.<\/p> Similarly, in the Barbadian case of CV0400\/2021 Chole Weekes, et al v. The Caribbean Examination Council, et al (unreported),<\/u> <\/em><\/strong>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:<\/p> 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\u2019s actions regarding its cross-jurisdictional obligations in administering the CXC examinations, and as such the claim was therefore dismissed.[2]<\/a><\/p> These cases are relevant to the Caribbean jurisprudence as they highlight the fundamental and extensive nature of CXC\u2019s immunity, emphasizing its crucial importance. They affirm the absolute nature of CXC\u2019s immunity, except in such situations where such immunities are explicitly waived.<\/p> CONCLUSION: –<\/strong><\/p> The immunities granted to CXC are vital and far-reaching, as evidenced by the legislation and cases. This underscores the organization\u2019s ability to operate independently in fulfilling its educational mandate across the Caribbean region. The absolute nature of CXC\u2019s 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\u2019s effectiveness and commitment to ensuring educational excellence within the said region.<\/p> [1]<\/a> About CXC | Caribbean Examinations Council<\/a><\/p> [2]<\/a> Court has no jurisdiction to review exam body\u2019s actions – Barbados Today<\/a><\/p> \u00a9 2024 MARTIN ANTHONY GEORGE & CO.<\/p> Examining Legal Protections: The Immunities Afforded to the Caribbean Examination Council in Educational Pursuits<\/p>","protected":false},"excerpt":{"rendered":" BY:NIKEIYA HENVILLE Nikeiya Henville Attorney-at-Law Martin Anthony George & Company The Caribbean Examinations Council (hereinafter referred to as \u201cCXC\u201d) 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,…<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_sitemap_exclude":false,"_sitemap_priority":"","_sitemap_frequency":"","footnotes":""},"categories":[40],"tags":[163,162],"class_list":["post-12136","post","type-post","status-publish","format-standard","hentry","category-magco-daily-legal-lessons","tag-cxc","tag-legalprotections"],"_links":{"self":[{"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/posts\/12136","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/comments?post=12136"}],"version-history":[{"count":2,"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/posts\/12136\/revisions"}],"predecessor-version":[{"id":12171,"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/posts\/12136\/revisions\/12171"}],"wp:attachment":[{"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/media?parent=12136"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/categories?post=12136"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/martingeorge.net\/v2\/index.php\/wp-json\/wp\/v2\/tags?post=12136"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}