Legal and Regulatory Framework

Term Report Article 25A of Pakistan Constitution of 1973 Right to Education

Prepared By

Aamir Ashiq Ali Lalani Registration # BD 1/2009

MBA - Evening Programme

Submitted to Ms Mehreen Nazar Dated: January 16, 2011

Institute of Business Administration, Karachi

Article 25A of Constitution - Right to Education

Introduction
Education is accepted as a basic right of everyone both at national and international level. Education is not only a basic human right, but also necessity for functional modern society. It is universally recognized as a fundamental building block for human development and one of the strongest instruments for reducing poverty. Education is also crucial to the survival of a healthy economy and society; in fact, it is engine of economic prosperity for the individual and the nation. Education is a major factor behind improved public health and high quality of life, and a tool of achieving great intellectual discoveries, democracy and world peace. It is universally true that no country can make significant economic progress if majority of its citizens are illiterate. Keeping in view the importance of Education United Nations adopted Universal Declaration of Human Rights (UDHR) on 10th December, 1998. The Preamble to the UDHR stated that: every individual and organ of society...., shall strive by teaching and education to promote respect for these rights and freedoms....". Article 26 of UDHR proclaims that: Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. Pakistan being a member of the UN adopted the said declaration. The Constitution of Islamic Republic of Pakistan framed in 1973 (also corresponds with Article 26 (1) of the UDHR) promised to its citizens in Article 37 (b) & (c) that "the State shall remove illiteracy and provide free and compulsory secondary education within the minimum possible period; make technical and professional education generally available and higher education equally accessible to all on the basis of merit". However a new Article 25A in the Pakistan Constitution, according to the 18th constitutional amendment, declares The state shall provide free and compulsory education to all children of the ages of five to sixteen years in such manner as may be determined by law. In accordance with this article, whoever stands in the way of the education of children will considered to be interfering with the fundamental rights of the citizens of Pakistan. Citizens can now invoke the courts to have their rights ensured. Earlier right to education was not recognized as the fundamental right and so far the courts have not taken the right to education as justifiable, therefore, no lawsuits or case references are available or documented with respect to right of education in Pakistan.

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Article 25A of Constitution - Right to Education

Interpretation of Article 25A

Article 25A in the Pakistan Constitution, according to the 18th constitutional amendment, declares The state shall provide free and compulsory education to all children of the ages of five to sixteen years in such manner as may be determined by law. The term compulsory education means obligation of the appropriate government to provide free elementary education4 to and ensure compulsory admission, attendance and completion of elementary education by every child of the age of five to sixteen5. According to Article 25A, the government and the society owe an obligation to the children of Pakistan i.e. children have a right to demand access to reasonable quality educational faculties, for themselves irrespective of their income, geographical location and other caveats. For the implementation of Article 25A, the federal and provincial governments have concurrent responsibility for providing funds. The federal government should prepare the estimates of capital and recurring expenditure and provide to provincial governments grants-in-aid from time to time in consultation with them. Moreover, the federal government should develop a framework of national curriculum with the help of academic authorities, develop and enforce standards for training of teachers and provide technical support and resources to provisional governments for promoting innovations, researches, planning and capacity building. The appropriate government and local authority should: y Ensure that children belonging to a weaker section or a disadvantaged group including children with disabilities1 are not discriminated against and prevented from pursuing and completing elementary education on any grounds; Provide infrastructure, including school building, teaching staff, learning equipments and other necessary facilities as deem fit2; Provide special training facility; Ensure availability of neighborhood schools3; Ensure and monitor admissions, attendance and completion of elementary education by every child; Ensure good quality elementary education conforming to the standards and norms; Ensure timely prescribing of curriculum and courses of study for elementary education; Maintain records up to the age of sixteen years residing within its jurisdiction in appropriate manner; Monitor functioning of schools within its jurisdiction.

y y y y y y y y

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Article 25A of Constitution - Right to Education

Rationale of the Right to Education

All fundamental rights beside right to education laid down in the Constitution are dependent upon the realization of the right to education. Equality of access to all levels of education is crucial to empowering women and girls to participate in the economic, social and political spheres of their lives. The rationale of the right to education is a system whereby education is free at the point of use, on the basis of entitlement rather than ability to pay. The human rights obligation of government to fund education adequately should ensure that parents would do not have to pay for their children s schooling nor have their children remain deprived of education when they cannot afford the cost. The human right to education can be characterized as an empowerment right . Such a right provides the individual with more control over the course of his or her life, and in particular, control over the effect of the state s actions on the individual. The enjoyment of many civil and political rights depends on at least a minimum level of education. Similarly, a number of economic, social and cultural rights can only be exercised in a meaningful way after a minimum level of education has been achieved. For ethnic and linguistic minorities, the right to education is an essential means to preserve and strengthen their cultural identity. Education can also promote understanding, tolerance, respect and friendship among nations, ethnic and religious groups and can help in creating a universal human rights culture. The denial as well as the violations of the right to education damage people s capacity to develop their own personalities, to sustain and protect themselves and their families and to take part adequately in social, political and economic life. On a society-wide scale, the denial of education harms the cause of democracy and social progress, and by extension international peace and human security. The right to know one s human rights through human rights education and learning can make a vital contribution to human security. Through education and learning about human rights and humanitarian law, violations of human rights and armed conflicts can be prevented or regulated and societal reconstruction after conflicts facilitated.

Pakistan s Commitment to Education

The Government of Pakistan has declared education its one of the top priorities. The new National Education Policy approved in September 2009 envisaged following key targets to be achieved by 2015:

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Article 25A of Constitution - Right to Education

y y y y y y y

Achieving universal and free primary education; All children, boys and girls, shall be brought inside the school; Achieving 86% literacy rate; Achieving universal and free secondary education by 2025; Increasing allocations for education by 7% of GDP; Minimum of 4% allocation for education budget in provincial and district governments; Food based incentives to be introduced for increasing enrollment especially for girls.

Almost 15 months had passed away and no substantial progress is evident on the targets listed above. Pakistan s commitment to universal primary education by 2015 appears subtle on current performance as participation is low and dropout rates continue to high. There are evident gender and rural-urban disparities. As per economic survey 2010 released by the Government of Pakistan, 43% people are illiterate and only 57% children of age 5-9 years are enrolled in primary education. Situation is alarming with respect to enrollment of females and literacy rate in rural areas. About 80% and 86% women are illiterate in Sindh and Baluchistan respectively.

Major Issues and Challenges of Education in Pakistan

Today Pakistan s Education System is among the most deficient and backward in Asia. Though 62 years have been passed and 23 policies and action plans have been introduced yet the educational sector is waiting for an arrival of a savior. The government of Pervaiz Musharraf invested heavily in education sector and that era saw a visible positive educational change in Pakistani society. Now days, the economic situation in Pakistan is under stress and education is the worst effected sector in Pakistan. Factors contributing to the non development of education system in Pakistan are growing exponentially. Dropout rate is significant coupled with poor quality of education in public and private schools. There has been commitment gap within political leadership and planners in Pakistan. The obvious reason being education is a long term investment and its benefit emerges over generations, whereas; parliamentarians and political parties focused their attention on projects with more visible and short term returns. The greatest barrier in the education system of Pakistan is the education of females. Most of Pakistani parents deprive their daughters of basic education due to traditions and religious customs, which oppress women. Without the opportunity to receive an education, women's chance for self-advancement is almost impossible.
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Article 25A of Constitution - Right to Education

Another major challenge which educational sector in Pakistan has been facing is shortage of financial resources. On average, not more than 2% of GDP during last 14 years was allocated for education sector out of which 90% amount was meant to meet the recurring expenditure of the existing schools, leaving only 10% budget for development of the sector. Where population of the country is growing exponentially, the lower budgetary allocation for the education sector is heading towards least growth. The condition of government schools all over the country and the quality of education being imparted there, are going from bad to worse. Even after allocating the 90% of the budget to meet the recurring expenditures of the existing schools; these schools are still missing the basic facilities: 67% of the government schools lack electricity, 39% are without drinking water and 41% are without toilet blocks. Thousands of government schools are "ghost schools," existing on paper only. School buildings are often used by feudal for housing farm workers or livestock, not for education. Thousands of "ghost" teachers have been drawing salaries from the education departments of the four provinces. They do not do any actual teaching since there are no functioning schools. They simply show up to collect their salaries on the appointed day. The feudal state of Pakistani society has prevented meaningful educational reforms from taking place. Consequently, literacy and enrolment rates have remained much lower than the desired level. They are even lower than the South Asian standards. It is generally noticed that decisions about appointments, transfers postings of teachers and education managers are made on political basis. This deteriorates educational governance and gives birth to corruption, teacher absenteeism, and slow pace of implementation of development schemes and consequently also affects quality of learning in classrooms. Furthermore, there exists parallel system of education consisting of high quality private sector English medium schools for the rich, Urdu medium government schools for children of ordinary citizens and Madrassahs for the poor. Students coming from government schools or Madrassahs can never compete with students from the private sector who are given better education due to resources made available to them. As a result, the deprived students end up doing tedious or semi-skilled jobs and are left behind in the economy. Regional disparity is also a major cause. The schools in Baluchistan (the largest province of Pakistan by area) are not that much groomed as that of Punjab (the largest Province of Pakistan by population). Extremism is also the result of this class-driven educational system as the under-privileged who have been neglected by the state are catered by the extremist outfits who then exploit them in the name of religion. Pakistan stand against war on terror along with USA has impacted the education system especially in the tribunal areas of FATA and KP. Educational institutions have been targets of terrorists in all tribal areas for long. Over the past two years, their anti-school drive has
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Article 25A of Constitution - Right to Education

gathered momentum. More than 100 schools were destroyed by terrorists in Bajaur Agency, Dara Adam Khel, Mohmond Agency, Khyber Agency, Swat, and Dera Ismail Khan. Tribesmen see it as a deep conspiracy against them to deprive their new generation of their right to education which will increase illiteracy that is conducive for more violence.

Recommendations
Role of Parliamentarians: The whole society, various organs of the state including parliamentarians are responsible for ensuring the provision of right of free and compulsory elementary education for all children. Recently, parliamentarians have played a pivotal role by approving free and compulsory elementary education as a fundamental right. Insertion of Article 25A in Fundamental Rights has paved the way for a historic journey towards education for all. Now the next step is to pass the legislation for enforcement of Article 25A by setting standards and passing various Acts and laws to elaborate roles and responsibilities of various stakeholders including appropriate government, local authorities, parents and guardians, schools and teachers etc. Moreover, advocacy and resolution in the parliament for ensuring equitable distribution of financial resources to areas proportionate to the population of out of school children and illiterates. Public Private Partnership: For proper implementation of Article 25A, there must be public private partnership and the government should devise a strategy to subsidize private educational institutions, operating in the areas where the government-run institutions had either failed to deliver or are non-existent. The government should decide per child education budget and the private sector should be patronized in the far-flung areas of the country to enhance literacy rate in the light of National Education Policy. Fixing ghost schools and teachers: The Pakistan government s latest education policy calls for increasing the allocation to education sector from 2% to 7% of GDP. However, unless the core problem of corruption is addressed, pouring anymore funds into the system will have a marginal impact. The ghost schools may only exist on paper, but the money being spent on running these schools and paying their teachers is very real. Rectification measures taken by the provincial governments need to be verified and checked on an ongoing basis. Transparency and Monitoring: There should be proper monitoring mechanism in place for tracking the presence of students and teachers in the schools. There should be easy access to information regarding public schools for anyone who wants the information. Public access to this information would increase the likelihood of meaningful accountability. Community-based school monitoring and reporting systems should be instituted. Citizens should be able to file a complaint about the absence of teachers or of any other irregularity that is found. The education department s budget for placing political

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Article 25A of Constitution - Right to Education

advertisements should instead be spent on informing citizens on how they can monitor their local schools and make a complaint through an email, phone call, fax or letter. Promoting technical education: Technical education must be given to all the classes. The education board of Punjab has projected a plan to give tech- education to the children of industrial workers. Promotion of the primary education is the need of time. Teachers, professors and educationists should be consulted while devising any plan, syllabus or policy. The state seems to give up her responsibility and totally relying on private sector. The need of time is to bring education in its original form to masses. Burdening students with many books will not work as he will not understand what the world is going to do next moment. Education is the only cure of the de-stability in the state and can bring revolution through evolution, by eradicating the social evils. This is how to remove illiteracy in Pakistan.

References to lawsuits or case studies

Since, right to education was not recognized as the fundamental right and so far the courts have not taken the right to education as justifiable, therefore, no lawsuits or case references are available or documented with respect to right of education in Pakistan. However, case studies mentioned below pertains to lawsuits filed in other parts of the world.
1Mills

vs. Board of Education of District of Columbia was a case against the District of Columbia that declared that students with disabilities must be given a public education, and that financial limits were a moot point in providing education to these students. It set a precedent that educational services must be made based on children's needs, not on the schools fiscal capabilities to provide such services.
2Tribunal

of the State Minas Gerais (TMG) Apelao Civel No. 000.197.843-6/2000. Brazil - Free and compulsory education as an individual public right has been interpreted to include free transport if children cannot otherwise attend school. vs. Bogota District Education Secretary & Ors Columbia, Decision T-170/03 Colombian Constitutional Court, Decision February 28, 2003 A five year-old child of a low-income family was placed in a public school located in a neighborhood different to that in which her family lived due to quotas in the schools close to her home. Her family claimed a violation of the right to education. The Court ordered the Government to relocate the girl in a school close to her home, stating that if the right to education of the child is affected because of quota restrictions within the schools near her home, then the guarantee of this right is not effective. The quota system must take account of socio-economic factors. Quota assignments cannot be made in a
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3Mora

Article 25A of Constitution - Right to Education

mechanistic way just to "theoretically fulfill the obligation to provide education to the population but must permit effective access to education. In this instance, acknowledging the transport costs in getting the child to school, the Court held that the system did not take into account the mother s lack of income and the time required to bring her daughter to the assigned school.
4DeJusticia

vs. Government of Colombia File D-7933 Sentence C-376/10 - Colombia is one of the few Latin American countries where basic education is not fully free. Following the article 183 of Act 115 of 1994 the government may charge tuition fees to those families who are able to pay them. To this end the government defines scales that take into account the socioeconomic status of students, variations in the cost of living, family composition and the complementary services of the school.

The principles of compulsory and free education deny the possibility of charging tuition fees for primary education. The Court stated that public education should be free at all levels, to the extent that it is a mechanism to achieve accessibility to education for all. However, States must adopt different strategies based on the obligation of free and compulsory primary education and the progressive realisation of free secondary and tertiary levels of education. vs. State of Andhra Pradesh (Writ Petition No.607 of 1992) - Supreme Court held that citizens of this country have the fundamental right to education and the said right flows from Article 21 of the Constitution. This right is, however, not an absolute right. Every child/citizen of this country has the right to free education until he completes the age of fourteen years. Thereafter, his right to education is subject to limits of the economic capacity and development of the State.
5Unnikrishnan

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