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The Fundamental Right to EDUCATION

The Fundamental Right to EDUCATION

By: Muhammad Usama

Is the state fulfilling its responsibility?

Ever since the dawn of modern civilization, education has played a pivotal role in building, nourishing and sustaining societies. It is only after the Renaissance, Rebirth and Reformation, egged on by printing of books (Bible was one of them) that Europe was saved from the Dark Ages and it ushered in an era of modernization and reform which continued to become the benchmark for the whole world. The role of education in any context is as important as life itself. In today’s world, it has enhanced manifolds and has, thus, become a necessary condition for a society or a country that looks forward to progress, build and sustain its polity and ideology.

Around the globe, people, organizations and institutions work and strive to unlock the enormous potential of their youth. Pakistan abounds with this precious asset. It is the second largest country in terms of young population. However, with political, social and economic quagmires, the views of our politicos have become myopic. There is an urgent need to resurrect the institutions of our country and make them assume their responsibility and the role which they ought to play for the dissemination of knowledge and education.

Being a lawyer, I would like to touch upon the legal dimension through this research article to prove that it is not only our moral duty but a legal obligation as well.

With the 18th Constitutional Amendment, the subject of education has fallen into the exclusive domain of the provinces. This is one of the reasons why the Eighteenth Amendment Act is popular for its element of provincial autonomy.

The federal legislature has the power to legislate on the subject of education to the extent of federal territory only. But as for provinces, it cannot enact legislation except in the matters pertaining to higher education and research, scientific and technical institutions which fall within Part II of Federal Legislative List.

In Rana Aamer Raza Ashfaq and another Vs. Dr. Minhaj Ahmad Khan and another [2012 SCMR 6] the abovementioned view was maintained as:

“Subject of Education [is] within the exclusive legislative domain of the Provinces.”

Right to Education was also added as a Fundamental Right through the Constitution (Eighteenth Amendment) Act, 2010, under Article 25-A, which reads as follows:

“The State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law.”

And after the 18th Amendment, the prime responsibility of education lied on the shoulders of the provincial government.

Miss Tahira Bibi in her research ‘Article 25-A Implications of Free and Compulsory Secondary Education’ says:

“The implementation of this provision is on part of provincial government and there might be different levels of implications at different levels.”

Former Chief Justice, Iftikhar Muhammad Chaudhry, held in “Petition regarding Miserable Condition of the Schools” [2014 SCMR 396]:

“After devolution of the subject of education to the provinces (by way of 18th Amendment to the Constitution), it was obligatory on the provincial governments to ensure that children of respective areas received education as a fundamental right at all tiers of the education system.”

Education in pre- and post-18th-Amendment scenario

  • Before the 18th Amendment, education as a subject was placed at Entry 32, under Part I of the Federal List which was moved to the Federal Legislative List (FLL) Part II, as entry 7 through the 18th Amendment.
  • Part II of the FLL had no entry relating to education prior to the Eighteenth Amendment.
  • Entry 38 of the Concurrent List contained provisions related to education as “curriculum, syllabus, planning, policy, centres of excellence and standards of education.”
  • With the abolition of the Concurrent List after the 18th amendment, all of these functions except standards of higher education got transferred to provinces.
  • A new entry, number 12, “Standards in institutions for higher education and research, scientific and technical institutions” has been placed in Part II of the FLL; thus, establishing a joint jurisdiction of both provinces and federation over this matter.

Pre-18th-Amendment Education

Before the 18th Amendment, education was acknowledged as a right in all prior Constitutions of Pakistan but was not justiciable. The 18th Amendment Act of 2010 has made this right justiciable. Moreover, education was a joint subject of federation as well as provinces (as discussed above), but after the 18th Amendment, education fell within the exclusive jurisdiction of the provinces.

Post-18th Amendment

Constitution (Eighteenth Amendment) Act, 2010, inserted following entries to the Federal Legislative List Part II which pertains to education:

(a) Entry 6: All regulatory authorities established under federal law

(b) Entry 12: Standards in institutions of higher education and research, scientific and technical institutions

(c) Entry 13: Interprovincial matters and coordination

The following table shall lead to a clear idea about how the Constitution (Eighteenth Amendment) Act, 2010, resulted in jurisdictional shift of the subject of Education.

The Fundamental Right to EDUCATIONBased on this tabular status of education scenarios, it is quite clear that after the 18th Amendment, the federation has relinquished its control over the subject of education. It is only the higher education that the federal legislature still has power to legislate on but that too falls in the FLL Part II on which federation can enact but with the consultation of reconstituted and more empowered Council of Common Interests.

Role of Federation in Education

Although it is well settled that the subject of education has been completely devolved to the provinces, it does not, however, mean that the federation has nothing to do with education in Pakistan. Federal government cannot deny to enforce Article 25-A as a fundamental right of the citizens.

Article 25-A says that the state shall provide free and compulsory education. Now what constitutes the “state” or what falls within the definition of the state can be traced from Article 7 of the Constitution of Pakistan, 1973, which reads:

“In this part, unless the context otherwise requires the state means the Federal Government [Majlis-e-Shoora (Parliament)], a Provincial Government, a Provincial Assembly and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess”

This means that the term “state” in Article 25-A includes not only provincial and local authorities but also the Parliament.

The federation can also not deny regarding Article 2-A which accentuates the lifestyle in accordance with the teachings of Holy Quran and Sunnah which lay great emphasis on education and its importance.

A research paper published by Pakistan Institute of Legislative Development and Transparency (PILDAT) covering the Responsibilities of Federal Government as to the enforcement of Article 25-A of the Constitution says that the Federation is obligated to provide “special financial support, monitoring and harmonization and enabling environment.”

The legal status of education, barring higher education, is pretty much clear after the 18th Amendment but have we such clarity on our education policy also? Are we targeting the right areas or are we just creating a public discourse to highlight the need of education? Is the approach of the government rightly directed to achieve Sustainable Development Goals (SDGs) via connecting them to education or are we just allocating budget without any substantial target-oriented policies to attain the real objectives?

These are some of the questions – in fact, very relevant ones – that need to be logically and pragmatically addressed!

The road to achieving SDG 4

In September 2000, leaders from around the globe adopted the United Nations Millennium Declaration. Pakistan was among the 193 signatories that committed to help achieve the eight international development goals which included achieving universal primary education i.e. “ensuring that by 2015, children everywhere, boys and girls alike, will be able to complete a full course of primary schooling”. In parallel to the MDG commitment, Pakistan also pledged to achieve six education-related goals by 2015 set under Education For All (EFA), a global movement led by UNESCO.

Where we are

It is disheartening to learn that not only did Pakistan come up short in upholding its international commitment to ensure that all its citizens have access to primary education as prescribed under the Millennium Development Goal (MDG) 2 but it also failed to meet its constitutional obligation of providing all its children (between the ages of 5 and 16 years) the access to free and compulsory education.

Now the world is set to finalise the Education 2030 Agenda as a part of the 17 UN Sustainable Development Goals (SDGs). Education is represented by SDG 4 which aims to “ensure inclusive and equitable quality education and promote lifelong learning opportunities for all”. The goals set under SDG 4 are more comprehensive than the MDGs as they extend from primary to secondary and tertiary education and from access to the quality of learning. However, the progress on MDG 2 and MDG 3, and the EFA goals paints a grim picture. The potential for Pakistan to meet its SDG 4 obligations, therefore, needs to be examined carefully.

Despite a decrease in the out-of-school children population in 2017 (from 25 million to 24 million), 47 percent of all children between the ages of 5 and 16 in Pakistan remain out of school. Of the children who do get enrolled, 31 percent drop out before they finish primary school. While a significant reduction has been observed in gender disparity, 52 percent of all girls within the age bracket of 5 and 16 years in Pakistan are currently out of school compared to 43 percent of all boys. The aim of bringing to light the existing picture on the state of education in the country is to underscore the urgency of dealing with SDG 4 with greater seriousness and commitment than what was afforded to the MDGs. Without evidence-based policy decisions, adequate financial and human resource allocation, robust implementation and devout political will, the SDG 4 targets are on track to be missed, across the board.

Courtesy: Alif Ailaan



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