EVERYDAY LAW: Principal of the matter
By Cecil McCarthy | Wed, April 25, 2012 - 12:00 AM
Governments in Barbados do not have a particularly good record when they have taken action against principals of schools.
One such case was that of “the Attorney General and Another vs Smith” reported at Page 33 of the West Indian Law Reports for 1986.
In that case Mr (C. Aurelius) Smith, the then headmaster of The Lodge School, who was appointed to the school in 1972, had asked for the removal of a pupil from the school following unsatisfactory work by the student.
The board of management of the school instructed the headmaster to readmit the pupil but the headmaster prevented the pupil from returning.
As a result, the board of management recommended the suspension of the headmaster, and in March, 1984, the permanent secretary of the Ministry of Education wrote to Mr Smith, informing him that he was interdicted from performance of his duties “as headmaster of The Lodge School with immediate effect in accordance with Regulation 27(1)and (2) of the Service Commissions (Public Service) Regulations 1978”.
A few days later the Governor General, acting in accordance with Regulation 27 of the Service Commissions (Public Service) Regulations 1978, confirmed the interdiction from the performance of his duties as the headteacher of The Lodge School.
On each occasion that the headmaster was asked to leave his duty he refused and wrote the permanent secretary and the Chief Personnel Officer respectively to the effect that he was advised that the purported interdiction was unconstitutional and unlawful and that he was continuing to perform all his duties as the headmaster of The Lodge School.
The Attorney General and the board of management of The Lodge School applied to the High Court for an injunction to restrain Mr Smith from continuing to perform the duties of the headteacher of the school and/or interfering in the management, control, operation and maintenance of the school until trial or further order.
Mr Smith was appointed to the school by the governing body. But under Section 65(1) of the Education Act 1981 (which was passed by Parliament in the ordinary way) teachers at The Lodge School (and other specified schools) were deemed to have been appointed in accordance with the provisions of the Constitution relating to the appointment of public officers.
A board of management was appointed for the school to replace the governing body and the teaching staff were notified that they had become public officers.
The application by the Attorney General and the board of management was refused on the basis that Section 65 of the Education Act which purported to deem teachers to be public officers was nconstitutional on two grounds.
Those grounds are reflected in the head note of the case which reads as follows:
“(1) That as Members of Parliament were constitutionally incapable of being members of the Public Service Commission (see Section 90(2) of the Constitution of Barbados) which was charged with advising the Governor General on making appointments to public offices (see Section 94) and Parliament had no constitutional power to make such appointments, Parliament had no power to deem persons to have been appointed to the public service; accordingly, Section 65 of the Education Act 1981 which purported to deem teachers to be public officers but had not been made by the process prescribed by section 49 of the Constitution for altering the Constitution was invalid.
“(2) That the freedom of association guaranteed by Section 21(1) of the Constitution applied to individuals as well as to groups and a person was entitled to reject relationships forced on him against his will; this was especially true in relation to the public service because of the restrictions to which such officers were subject in relation to the freedom of expression, the freedom of assembly and association, and the freedom of movement; accordingly, section 65 of Education Act 1981 was also invalid by reason of its incompatibility with Section 21(1) of the Constitution.”
Although the facts of this case are different from those relating to The Alexandra School, it has powerful lessons that can guide decision making in that case.
Perhaps the most powerful of those lessons is that unless political action is buttressed by law it can be immediately overturned by the courts. In this regard, it may well be easier, as a matter of law, to transfer 20-odd teachers than a principal!
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