Canute S. Thompson
The Government of Jamaica, through the Minister of Education, has tabled the gestationally-long “Jamaica Teaching Council Bill” whose purpose, among other things is to:
Recognize and promote teaching as a profession; to contribute to improving the quality of teaching and learning in Jamaica by regulating the entry and standing of members of the teaching profession; to establish and maintain the registers of teachers and the Roll of Instructors; (and) …; to regulate the professional conduct of teachers to ensure, in the public interest, that teachers are fit and proper persons to teach….
The Bill has been in the making for over a decade with extensive consultations having taken place between 2010 and 2012 and again between 2013 and 2015. The further consultations requested by then Minister of Education, Ronald Thwaites, came at the end of 2013, when the JTA was still violently opposed to the Bill. This followed a November 16, 2013, Jamaica Observer report entitled JTA President condemns proposed JTC Bill. In explaining the extension of the consultative period, (on December 2, 2013) the Minister stated that, “it is better to wait and get a good law than to hurry and have a bad law”.
While the Bill has been revised, it still has serious shortcomings and dangers and should it be passed into law, without removing (what I consider) the dangerous provisions then teachers will be at grave risk in terms of their rights to fair treatment being infringed. I set out below some of the features and provisions of the Bill which I contend require attention. I am not seeking to be exhaustive in this analysis, I am highlighting what I consider to be some of the major issues.
(The layout of the Bill is incomplete, given that it does not have a “Table of Contents” typically called “Arrangement of Sections”. It may be assumed that because it is a Bill and not yet an Act (Law) that critical navigational guide is omitted. However, that assumption would be unsafe as the recently passed Disaster Risk Management Act (DRMA) does not have the “Arrangement of Sections”. Its omission reflects either sloppy legislative drafting or a deliberate attempt to obfuscate and make the navigation of the document difficult. If it is the latter, which I suspect it is, the aim is to hide provisions which would be easily found if the details front section highlighting all that is in the Bill is provided.
(2) Composition of the Board (Council)
This issue is addressed in the First Schedule (pp 61 – 62) of the Bill. By my count, the total number of individuals identified to serve on the Council is twenty-two (22). If I am correct, apart from the total being an even number (which is not recommended for decision-making bodies), the scope of the representation places teachers in the minority. While there is a total of ten teachers, only six would be directly from the Jamaica Teachers’ Association (JTA), the other four would be persons drawn from various sectors who are also registered and licensed teachers.
An earlier version of the Bill proposed twenty-five (25) persons, with the same six (6) places going to the JTA. Thus, it appears that the number was cut from 25 to 22 to narrow the gap between teachers and non-teachers to appease the JTA. In my view this is ill-advised and the original proposal of a 25-member Council should obtain.
It is to be noted that the proposed composition of the Jamaica Teaching Council (JTC) with respect to the minority presence of teachers, is different from how other local Councils, such as the General Legal Council, the Medical Council, and the Nursing Council, are constructed. These other councils have majority representation from members of the profession. The proposed composition of the JTC also runs counter to other teaching councils globally. For example, the Irish Teaching Council which consists of 37 members, makes provision for teachers’ membership as follows:
- 11 primary teachers, nine of whom are elected and two of whom are teacher union nominees
- 11 post-primary teachers, seven of whom are elected and four of whom are teacher union nominees
- 2 nominated by colleges of education
Thus, no less than 65% of the membership of the Irish Council consists of teachers. The Scottish Teaching Council also consists of 37 members of which 51% (19) are teachers. The proposed composition of the JTC appears closest to that of the Teacher Registration Council of Nigeria (TRCN), which consists of at least 23 members, of whom 5 or about 22% are teachers.
While accepting that there is not necessarily any superiority in the Irish and Scottish models when compared to that of Nigeria, and the local Nursing, Medical, and Legal Councils, when compared to the proposed law for teachers, two questions arise, namely: (a) What is the thinking of the Ministry of Education in choosing the representational model for the teachers, that it differs so radically from the model used for other local professional bodies?, and (b) What is the logic for leaning to the Nigerian model as against the Irish and Scottish models in terms of teacher representation?
It is also noted that the current Bill contemplates including two representatives from universities in Jamaica, at least one of which would be from the UWI. The Bill also contemplates having two representatives from the Teachers’ Colleges which it references as Educational Training institutions. In both the case of the UWI and Teachers’ Colleges I think there should be one more representative.
The overall recommendation for a 25-member Council, as against 22 and the increasing of the number of teachers could be thus handled if:
- The number of teachers (members of the JTA) is increased from six (6) to seven (7);
- The representation from universities is moved from two (2) to three (3) persons;
- The representation from Teacher Training institutions (which should be referenced as such) also moves from two (2) to three (3) persons.
In both the case of the universities and Teachers’ Colleges, I propose that the additional named persons be teachers. Thus, teachers would now constitute 13 of the 25-member Council.
(3) The Appeals Tribunal
Thereare three major issues with the appeals process, two of which are highlighted in the Fifth Schedule and the other in Sec 71.
(a) Whereas the Bill makes provision for how members are appointed to the Tribunal, Para 2 of the Fifth Schedule states that the proceedings of the tribunal shall not be subject to challenge of there is a defect in the process of appointment, stating: “The validity of the proceedings of the Tribunal shall not be affected by any defect in the appointment of a member”.
This exception is prescription for abuse and builds in permissible departure from due process. Thus, a minister could appoint a tribunal, departing from the provisions, in order to secure an outcome in relation to a teacher whose matter is due to be heard. Good legislative practice suggests that prescribed procedure be observed.
(b) The freedom given to a minister to ignore the procedures for appointment are worsened in the final paragraph (Para 12) of the Fifth Schedule which states that the holder of the office of Chair shall not be a public office, viz: ” The office of chairman of the Tribunal or member of the Tribunal shall not be a public office for the purposes of Chapter V of the Constitution of Jamaica”
What this means is that the actions of the Chair, and by extension the Council, would not be subject to being reviewed judicially. So no teacher who wishes to contest a decision of the Council could take the matter to court for a judicial review. This in effect makes the Council a law unto itself.
(c) In the body of the Bill Sec 71 (page 53) provision is effectively made for the tribunal to take as long as it may determine it needs to render a decision. This provision states: “On hearing an appeal under this Part, the Tribunal shall give its decision, in writing, within twenty-eight days, or such longer period as the Tribunal may reasonably require ….”
The net effect of this is that a person whose professional future or reputation hangs in the balance, must wait for an indeterminate period to know his or her fate. This provision runs counter to the emerging acceptable of human rights and judicial practice (being championed by Jamaica’s Chief Justice as the Minister of Justice) of judicial certainty. The principle of judicial certainty means that when the court gives a date for a matter to be heard, it is heard on that date; when the court says it will hand down judgment in three months, it keeps its word. In the matter of a professional’s right to practice, judicial certainty is essential.