Barbados Court of Appeal Decision on CXC Accountability and Rights of Students: A Closer Look Amidst Legal Challenges

We have been awaiting the dissemination of the written opinion of the Barbados Court of Appeal (CoA), as advised by pro bono legal counsel Aegis Chambers. We therefore defer to Aegis for public communication on and assessment of the legal particulars.

But it remains our layperson, ‘valued’ education stakeholder view that the fundamental matter of accountability and the pursuit of natural justice and improving major challenges relating thereto, of CXC, are sufficiently central to the optimal development of CARICOM, our children and people, individually, nationally, and regionally, that it is worthy of CCJ consideration.

The Barbados lawsuit, at its core, speaks to the pursuit of accountability of and redress from CXC, as a CARICOM organisation, to CARICOM citizens. The Barbados CoA decision, as reported by Barbados TODAY on June 20, rejected the application to appeal the lower court’s ruling that the students did not have legal standing, due to CXC’s status as an inter-governmental organisation. In the 2023 Trinidad & Tobago Court of Appeal decision, which upheld the Ministry of Education (MoE) appeal of the prior T&T High Court decision that a T&T student had a right to her CAPE transcript in order to query her flawed grading, the T&T CoA held that any right to CAPE transcripts under the Freedom of Information Act (FOIA) would be unenforceable due to the absence of an arbitration clause, similar to the one in the SEA (BSSEE equivalent set and administered by CXC) agreement with CXC. It is noted that the T&T CoA did uphold the SEA students’ right to their transcripts, and chastised and were heavily critical of the Ministry of Education for its delayed response which allowed the students’ SEA transcripts to be destroyed. It said

permitting those transcripts to be destroyed was inexplicable, “inexcusable and… irrational”… and amounted to a breach of the FOIA”.

The foregoing speaks to a prevailing CARICOM environment where it seems more important to protect the CARICOM entities such as CXC than it is important to protect CARICOM citizens’ rights to fairness from the very entities supposedly created to serve us.

We note the Barbados TODAY report is silent on the legal action against the Barbados MoE which was part of the court case; we also note our understanding, subject to correction as needed, that the certificate of immunity given by Barbados to CXC was issued on a date after the commencement of the Barbados legal action, which might call the validity and relevance of such immunity in this legal matter into question.

If CARICOM governments do not see this glaring problem of lack of accountability of CXC – and other CARICOM entities – and do not seek to address it for their citizens’ benefit by ensuring there are proper Freedom of Information Acts and concomitant dispute resolution mechanisms, we are in a disturbing period in our regional development. By the way, where is Barbados’ long-promised FOIA? Jamaica, T&T, Guyana, Belize, Antigua and Barbuda, and Belize all have FOIAs, which are the hallmarks of modern democracies. Some would say CARICOM governments have too long been derelict in their duty to ensure accountability, fairness and redress for their electorate, the people they serve.

We have long called for CARICOM to implement an enhanced governance process inclusive of an expert external independent regulator of CXC, as endorsed in 2021 by Santia Bradshaw, then Barbados’ Minister of Education. We note the headline in the June 20 edition of the Nation newspaper, where the Italian temporary alternate governor of the CDB is calling for CDB to improve governance, which echoes our similar concerns re CXC. Perhaps it will take a change agent external to the CARICOM management to see what is clear to the rest of us.

It is noted in BT’s exclusive reporting on the court case that the Barbados CoA decision is referenced as ‘legal victory’ of CXC. I frankly would be embarrassed as a public service organisation to hide behind a legal cloak of protection from moral and ethical justice to which children are naturally entitled. When legal status quo results in outcomes which perpetuate injustice, do not promote justice, and, instead, reinforce and confirm the lack of redress for citizens – in this case our most vulnerable, our children –, ‘Houston, we have a problem’.

A marathon race is not for the swift; this quest for accountability requires the dedicated, tireless, relentless endurance we have demonstrated for nearly five years.

We declare victory, ourselves, in major areas relating to our education advocacy for justice:

We are proudest of our CARICOM children, who demonstrated the resilience to persevere in their life goals despite the injustice of CXC’s exam admin in 2020 and subsequently. We are proud that we awakened in many children an awareness that they have the same right to advocate for themselves that they see other students do abroad.

We are proud that, for nearly five years, we have launched and initiated in Barbados and maintained an unprecedented pan-CARICOM movement of education advocacy by education stakeholders, of students, parents, teachers, teachers’ unions, and principals, for accountability, and education reform, inclusive of the improvement of exam and other education standards. The launch last week of the National PTA of Guyana is a testimony to the inspiration of our advocacy. I was saluted by their new president as ‘the star who guides us’.

We are proud of the parents in Barbados (and Trinidad & Tobago utilising their Freedom of Information Act), who had the courage, despite the naysayers, to say ‘enuff is enuff’, and utilised all tools available to pursue redress, including the judicial system.

We are proud of the dedicated, caring teachers who have expressed concern, as best they can, either privately or via their union representatives, regarding increasing challenges with CXC’s quality assurance and communication.

We are proud that not one but two prestigious law practices – Lex Caribbean in 2020, and particularly Aegis Chambers – were mobilised as accountability was sought for our children. Aegis was indefatigable and relentless from 2021. Heartfelt and profound gratitude goes out to Lex Caribbean and especially Aegis Chambers, the latter which represented the plaintiffs in this case pro bono. Aegis as expert legal counsel see the merits of the legal case, contrary to popular legal opinion.

We are proud that we tenaciously advocated, through the worst of the COVID pandemic to date, and represented not only our Bajan children but the children of CARICOM, and showed them that we valued them, we valued their voices, and we heard them – their shock, their pain, their disillusionment at the callous cruelty meted out on them too often via unjust exams and/or flawed grades, by education authorities. We ‘heard their prayer’. One of the core principles of the UN Convention for the Rights of the Child is that a child has a right to be heard.

We remain deeply disappointed in our CARICOM governments regarding their governance of CXC.

Where is the will for a political remedy to the well-documented challenges plaguing CXC’s deficiencies in governance and exam administration quality control? There appears to be little CARICOM-level political will to address these well-documented and increasing wrongs done to too many of our children at a mass scale in 2020, and annually thereafter. There are also systemic challenges within CARICOM’s ‘education ecosystem’ where ministries of education interlink with CXC to administer these exams which remain

unresolved.

There is a growing call from certain key influential regional education stakeholders with wide public reach, advocating for a political reckoning, resulting from years of CARICOM governments’ collectively apparently being either unable, or unwilling, to address the concerns of their citizens relating to CXC’s suboptimal systemic performance, especially since 2020.

We will ponder all of our options – legal, political, and otherwise – as we proceed to the next phase of our advocacy for student justice in CARICOM.

If making the issue of CXC governance and needed improvement in examination administration an election issue is what is needed to ensure lasting change for the benefit of our region’s children, before it’s too late, so be it.

We’ve only just begun.

Paula-Anne Moore is a parent and students rights advocate and coordinator and spokesperson of the Group of Concerned Parents of Barbados and the Caribbean Coalition for Exam Redress.