REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT
ON THE

discriminatory criteria of the vanuatu national examinations board for admission to year 7

13 August 1999

7156/9/13

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PUBLIC REPORT ON THE
DISCRIMINATORY CRITERIA OF THE
VANUATU NATIONAL EXAMINATIONS BOARD FOR
ADMISSION TO YEAR 7.

'Know ye not that they which run in a race run all, but one receiveth the prize? So run, that ye may obtain'.

Corinthians 9 v 24

In circumstances which as in Vanuatu, educational facilities do not exist in sufficient quantity to enable every one, regardless of ability to continue an extended schooling program, painful decisions have to be made as to who shall be selected to qualify. Whatever method of selection is used, there will inevitably be those who are hurt and feel ill treated.

Some children develop and mature at an earlier stage than others because of genetic and other factors in their growth patterns. In a situation of shortage of opportunity, it is obvious that the size of a pupil should not be the criterion.

The opportunity should be given first to those who are likely to benefit most – namely those whose academic performance has indicated that they are the most promising student.

Therefore, although all children may begin the 'race' in the early stages, not all will find it possible to be allocated a place in the later stages. This is the inescapable fact of educational opportunity in Vanuatu today. Therefore it is absolutely essential that the process of selection must be seen to be open and free of inappropriate favouritism, and as fair as possible.

SUMMARY

Due to the limited places available for students in Year 7, the Vanuatu National Examinations Board uses a selection criteria ('criteria') to choose which students will pass from Year 6 to Year 7. The current criteria is as follows:

∑	Age (up to 14)
∑	Number of repetitions
∑	Marks in the National Primary Examination
∑	Number of places available

Vanuatu does not presently have the financial resources to make secondary education available and accessible to all children. However, until there are places available for every capable student, the Convention on the Rights of the Child (which is binding in Vanuatu) and our Constitution require that children be given the available places on the basis of equal opportunity.

This means that every child should have the same opportunity to earn a place in Year 7, with the only distinctions being based on merit or ability. The number of repetitions and marks received in the National Primary Examinations are indicators of a student’s ability; age is not. Restrictions based on age are unjustly discriminatory, and may prevent highly capable 'older' students from continuing their education simply because they started school later or missed some years of schooling when younger. The Government of Vanuatu must treat a 15 year old student (for example) the same as a 13 year old student – both can be assessed on their marks or other measure of ability to succeed in Year 7, but not on the basis of age.

The Ombudsman therefore after due enquiry concludes that: The Vanuatu National Examinations Board criteria for the admission of students from year 6 to Year 7 discriminates on the basis of age. This is unjust, contrary to our Constitution, and contrary to the Convention on the Rights of the Child which is binding in Vanuatu. 

The Ombudsman recommends that the Minister of Education and the Vanuatu National Examinations Board ensure that the criteria for entry to Year 7 be changed so that the limited number of places are distributed based only on students’ merit and ability, and not on age.

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TABLE OF CONTENTS

SUMMARY
1.	JURISDICTION
2.	PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3.	RELEVANT LAWS, REGULATIONS AND RULES
4.	OUTLINE OF EVENTS
5.	RESPONSES BY THOSE INVOLVED
6.	FINDINGS
7.	RECOMMENDATIONS
8.	INDEX OF APPENDICES

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1.	JURISDICTION

1.1	The Constitution and the Ombudsman Act allow me to look into the conduct of government, related bodies, and Leaders. I can also look into allegedly discriminatory or defective administrative practices, including those of the Vanuatu National Examinations Board.

2.	PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1	The purpose of this report is to present my findings as required by the Constitution and the Ombudsman Act.

2.2	The scope of this investigation is to establish the facts about the criteria used by the Vanuatu National Examinations Board ('VNEB') in selecting students from year 6 to year 7 and to determine whether this administrative practice is proper and just. 

2.3	This Office collects information and documents by informal request, summons, letters, interviews and research.

3.	RELEVANT LAWS, REGULATIONS AND RULES

3.1	CONVENTION ON THE RIGHTS OF THE CHILD (RATIFICATION) ACT 
No 26 of 1992

RATIFICATION

1. (2)	The Convention… shall be binding on the Republic of Vanuatu in accordance with the terms thereof.

CONVENTION ON THE RIGHTS OF THE CHILD

Article 1

For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 28

1. States Parties recognize the rights of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

(b)	Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need.

3.1	CONSTITUTION OF THE REPUBLIC OF VANUATU 

FUNDAMENTAL RIGHTS AND FREEDOMS

5.(1)	The Republic of Vanuatu recognises, that, subject to any restrictions imposed by law on non-citizens, all person are entitled to the following fundamental rights and freedoms of the individual… subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health –

(k) equal treatment under the law or administrative action…

4.	OUTLINE OF EVENTS

4.1	The structure of the Education System in Vanuatu includes two or three years of pre-school (kindergarten) education, followed by 6 years of primary level with four years of lower secondary education and ending with three or four years of upper education. Most children attend Primary School, and there are enough spaces and adequate numbers of schools for most children to attend. However, according to the Education Master Plan, only about 32% of children attend Lower Secondary, and 6.5% attend Upper Secondary.

4.2	The major drop in attendance from Primary to Lower Secondary, or Year 6 to Year 7, is at least partially due to the limited places in the available Lower Secondary schools. Every student who passes the National Primary Examination does not necessarily get accepted to a Lower Secondary school.

4.3	As a result, the Vanuatu National Examinations Board has established a criteria. The VNEB uses the criteria to determine which students will be selected from year 6 to year 7.

4.4	This enquiry began on the basis of a complaint received about these criteria. In 1996 the VNEB criteria excluded children over 13 from entering Year 7. The policy was changed in 1997, and now excludes children over 14 from entering Year 7.

4.5	The current criteria used by VNEB for choosing which students go on to Grade 7 are based on:

∑	Age
∑	Number of repetitions
∑	Marks in the National Primary Examination
∑	Number of places available

See Appendix A.

4.6	At present Vanuatu does not presently have the financial resources to make secondary education available and accessible to all children. This is a goal which is required by the Convention on the Rights of the Child.

4.7	However, until there are places available for every capable student, the Convention and our Constitution require that children be given the available places on the basis of equal opportunity. This means that every child should have the same opportunity to earn a place in Year 7, and the only distinctions that can be made must be based on merit or ability. Only the number of repetitions and marks received in the National Primary Examinations are assessments of a student’s ability; age is not. 

5.	RESPONSES BY THOSE INVOLVED

5.1	The working paper for this report was issued twice, May 1998 and June 1999. Responses were received from the former Ministers of Education, Messrs Donald Kalpokas (see enclosed) and Louis Carlot, the current Minister of Education Honourable Joe Natuman, and the Director General of Education and at the same time the Chairman of Vanuatu National Examination Board (VNEB), Mr Georges Andrews. (Refer to appendices B, C, and D)

5.2	The successive Ministers acknowledge the age based -criteria and all defend it on the basis of necessity, limited funding and places and the need to accommodate the younger students in priority to the small number of older students affected by the policy.

5.3	In his reply Mr Natuman also adds that the Ministry is aware of this issue but has taken an adequate step to remedy it with the implementation of the Education Master Plan. He assures the Office of the Ombudsman that if the Ministry is given adequate resources, all children will have equal access to education and training. 

5.4	Mr Andrews, the Director General of the Ministry of Education, states in his response that the current criteria is not unfair and disagrees with the fact that the admission system discriminates against some children on the basis of age. He states that children are given the opportunity to repeat twice their year 6 class at the primary level.

5.5	Comment: The Ombudsman has considered these response and concluded that criteria of selecting students from year 6 to year 7 should not be based on the age as it discriminates children's right to education. The Vanuatu National Examination Board should allocate students based on merit and ability and not on age, taking into account their past schooling results.

6.	FINDINGS

6.1	Finding 1:	The Vanuatu National Examinations Board selecting criteria for students from year 6 to Year 7 discriminates on the basis of age. This is unjust, contrary to our Constitution, and contrary to the Convention on the Rights of the Child which is binding in Vanuatu.

6.1.1	The criteria for admission to Year 7 is based partially on merit and ability (examination marks and repetitions), and partially on age. Fairness, as well as the law and our Constitution, require that this criteria be based only on merit and ability. Restrictions based on age are unjustly discriminatory, and may prevent highly capable 'older' students from continuing their education simply because they started school later or missed some years of schooling when younger.

6.1.2	Equal treatment under administrative action is one of the fundamental rights in our Constitution. Decisions about who can and cannot enter Year 7 is an 'administrative action' by VNEB, and therefore these decisions must be made without undue discrimination. Similarly, the Convention on the Rights of the Child requires that education be available on the basis of equal opportunity. Therefore, both laws require the Government of Vanuatu to treat a 15 year old student (for example) the same as a 13 year old student – both can be assessed on their marks or other measure of ability to succeed in Year 7, but not on the basis of their age.

7.	RECOMMENDATIONS

Recommendation 1:

The Minister of Education and the Vanuatu National Examinations Board ensure that the criteria for entry to Year 7 be changed so that the limited number of places are distributed based only on students’ merit and ability, and not on age.

Dated the 13th day of August 1999

Marie-Noëlle FERRIEUX PATTERSON
ACTING OMBUDSMAN
OF THE REPUBLIC OF VANUATU

8.	INDEX OF APPENDICES

A	Criteria of Selection (September 1997)

B	Extract of Mr Kalpokas’ letter

C	Extract of Mr Carlot’s letter

D	Extract of Mr Natuman’s letter

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