Tuesday, 21 August 2012

law report - transfer of principals, legitimate expectation

Ming & anor. v the Minister for Education and anor. [2012] SC (Bda) 39 Civ (1 August 2012)

The Applicants were seeking judicial review of the Minister's decision to transfer two school principals. Kawaley CJ found that the school PTAs had a legitimate expectation of being consulted prior to such a transfer [34]. The court exercised its discretion to quash the Minister's decision in order to give effect to this finding [44], putting the transfer plans on hold for another school year. Kawaley CJ said that it was only by granting the relief that the Minister would be stirred to honour its commitments to involve the PTAs as partners. He cited the fact that half of the island's parents have abandoned the public school system for consumer-friendly private schools which are more respectful of the aspirations and needs of citizens served by those schools.

The judgment is notable for Kawaley CJ's discussion of the principles of legitimate expectation and judicial review in the context of Bermuda [25]-[26]. He starts by drawing on the English principles, going back to Magna Carta. He says that Bermudian public law canot ignore Bermuda's own distinctive legal roots in the historical context of slavery, post-emancipation, oligarchical government and racial segregation, through to a parliamentary democracy with a written constitution.

This gives rise to tensions between democratic aspirations from civil society and Executive institutions not yet fully purged of more authoritarian notions of power.

He cites Rose-Marie Belle Antoine, who suggested an activist approach for judges in societies similar to Bermuda.

The Caribbean man and judge has an active role to play in re-interpreting the legal framework to build a more just society. The judge and legislator must perform the role of social engineer.

Kawaley CJ includes this quote to illustrate the role of the Court when interpreting legislation designed to promote social change.

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