The ASJA Watershed
Posted: Friday, September 13, 2002
By Stephen Kangal
The crisis triggered at the ASJA Girls' College in San Fernando by the intransigence of the all-male ASJA Board has helped to establish a new pro- activist benchmark in the evolving parental role geared to reform and upgrade educational administration in T&T. Gone is the era when parental participation in the education process was constricted to manning PTA fund-raising bazaar stalls and passive attendance at PTA meetings. Parents have now rightfully assumed a more substantive role in shaping and driving the educational agenda.
May I congratulate TUTA as well as the parents/teachers/students of ASJA Girls' for establishing a new watershed in the much- vaunted tripartite approach to the education process. They have transcended the fund-raising remit and heroically defended and prosecuted the right of the duly appointed Principal, independent-minded Ms. Farial Ali, teachers and students of ASJA Girls' to be the best judges of those who are most qualified and equipped to educate our children. Students I know from my Hillview College teaching sojourn are inherently the best judges of good and effective teachers.
The symbolic gate crashing and dismantling of the ASJA (Berlin) Gates heroically defying the myopic ASJA Administration with their pettiness and parochialism must be instructive to all other denominational boards that administer education with funding derived from the public purse on behalf of the State.
In fact a very senior Judge at the Industrial Court expressed the view that there are underlying contractual obligations binding the ASJA Board to permit the agents of the Ministry of Education that is to say the teachers, Supervisors and by extension TUTA access during school hours to the premises albeit privately owned, in order to deliver the service of education to the children of tax-payers for which the ASJA Board has been compensated by Government. They accordingly cannot lawfully impede the Principal and other agents of the state from the right of access even though they may own the property.
Other Boards must now take judicious note of the maxim that when your neighbour's house is on fire, you must wet yours.
The unnecessary ASJA fracas introduces into the dialogue and appears to be premised on the provisions of the Concordat concluded between The Catholic Church (via the late Principal Father Pedro Valdes of St.Mary's) and the State (via Education Minister John S. Donaldson) on 12 December 1960 before our Independence.
It brings into sharp focus the issue of the legal status of the educational plant and machinery attached to and situated on private property vested in the ownership of the Churches. On this issue Education Minister Manning (H) stated that they were public places with the public enjoying unrestricted access. On the other hand Manning (P) was ambivalent on the scope and nature of the rights and jurisdiction that the State exercises over property and facilities acquired though grants from State funding (Newsday Sept. 6, p.6).
Under paragraph 1 of The 1960 Concordat the Government of former late Premier Williams provided an undertaking to denominational boards that their continuing private property rights and jurisdiction exercised over their school premises would be respected even though the Education Act may provide otherwise. Which takes legal precedence in the evolving scenario, the Education Act of Parliament or the uniform and consistent practice consummating the provisions of the 1960 Concordat? It appears however that there is no real conflict between the Concordat and the Education Act.
The private property rights of the respective Boards over the premises of the school are not in dispute. The situation which did not meet with the Board's approval however, does not confer a legal right on the ASJA Board or any other denominational board for that matter to lock out unilaterally or to deny access to the agents of the state (students, teachers, parents and even TUTA) in order to undertake legitimate activities related to the delivery of education. In this sense Minister Hazel Manning may be right in asserting that for the purposes of education the ASJA School is a public school with its attendant unrestricted right of access during specified hours for educational purposes. It is similar to paying for entry into a cinema and having the right to be in the cinema although it is owned by a private person or company.
The Concordat also provides for the transfer of teachers to other schools and not for revocation of the appointments of teachers such as Mrs Fariel Ali appointed to denominational schools. They can be transferred to other schools other than for disciplinary considerations. The Concordat states at paragraph 4 that:
"... if a teacher be found unsatisfactory on these very grounds, moral or religious, the denominational authority shall have the right to request his removal to another school after due investigation..."
Is the proposed three- month interregnum a cooling -off period to facilitate mediation/good offices to be undertaken by the Ministry of Labour as well as for the requisite investigation to be conducted by the Ministry of Education? But no infractions have been committed on moral, religious or disciplinary grounds by Mrs. Ali.
In this instance ASJA has accused Mrs. Ali of including some students of her own choice in the 20% entitlement of the ASJA Board. She cannot be transferred for her violation of internal (board) administrative procedures. The Concordat recognises the powers of The Principal in this regard. The Concordat states:
"The principals will be free to allocate up to 20 per centum, the remaining places, as they see fit provided normally that the pass list of the Common Entrance Examination serve to provide the pupils."
What then is the legal status of the 1960 Concordat? It was not incorporated into law by an Act of Parliament for reasons that escape me. Is it still a modus vivendi (private law contract) signed by the Catholic Church and the State?
The view has been expressed to me by a reputable advocate that because The Concordat has been applied in a uniform and consistent manner over a period of 42 years and other Boards not party to the 1960 Accord have acquiesced in this practice, The Concordat is opposable to and binding on all other Boards including the recent Education Board established by the Pentecostals to administer their Chase Village Secondary School. It has the force of law by practice. However, is it a superior law to the Education Act Chapter 39:01? Did the Education Act invalidate sections of the Concordat that are inconsistent with later amending legislation? In fact in the ASJA crisis ownership is not the real issue.
The uniform and consistent practice developed on the basis of the 1960 Concordat in my view has institutionalised the practice of widespread discrimination perpetrated by the denominational boards on the basis of religion and by extension aggravated racial polarisation in the society. Furthermore this discriminatory practice arbitrarily inflicted on the nationals of T&T has been funded by and sanctioned by the State against its own citizens in 21st Century T&T.
Can this affront to fundamental human rights, equality of educational and employment opportunities (Equal Opportunities Act) and where every creed and race must find an equal place (The National Anthem) stand the scrutiny of the judicial process vis-a vis the human rights and fundamental freedom standards enshrined in our 1976 Constitution which is the supreme law standard of the land any derogation from which will be considered null and void and of no effect?
My conclusion is that the ASJA Board is unlawfully basing its lockout of Principal Ali and even TUTA's Trevor Oliver on the paragraph 1 of the Concordat. This conduct is in clear violation of the Education Act, Section 11 (2) and (5) and the principles underlying the Laws of Contract. They can be held liable for breach of contract and acting in a most reprehensible and discriminatory manner because in the words of Mr. Yacoob Ali "… we wrote the Ministry telling them that we did not wish to recognise her as principal and as such she should not be there..." (Express Sept. 8, p.6)
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