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Privatising free education

April 02, 2013

ARTICLE 25-A of the Constitution of Pakistan, 1973, declares that “the state shall provide free and compulsory education to all children of the age of five to 16 years in such manner as may be determined by law”.

The article further fortified the right to education as already enshrined in the constitution, and has been heralded by many as the basis of a new era of priority. Some of the recently dissolved legislatures had enacted legislation delineating the mechanisms for the enforcement of the right to free education.

As the salient features of the various legislation enacted/promulgated are largely similar, for the purposes of analysis, the implications of the Sindh Right of Children to Free and Compulsory Education Act, 2013, will be considered here.

The act contains various provisions delineating the responsibilities of the public and private sector in relation to the provision of free and compulsory education and the regulation thereof.

Although the act has unequivocally mandated that all children are to be admitted into schools for compulsory education, there remain various troubling aspects to this piece of legislation.

The act surprisingly forces the private sector, in addition to the public sector, to shoulder the responsibility of providing free and compulsory education to children under Article 25-A.

In fact, the object statement of the legislation states that the provision of such education is the responsibility not only of the government but also of the private sector. This is so despite Article 25-A only mandating the state to provide free and compulsory education.

Also, the fact that the legislature chose to phrase this right in terms of the state “providing” free and compulsory education as opposed to the state ensuring that the public and private sector both provide for it appears indicative of its intention to limit the obligation only to the state.

By roping in the private sector, the government has in fact relegated, in part, its responsibilities, and created an untenable situation for various private schools across the province.

However, it is uncertain whether this position will apply to those schools in the private sector which are given government aid or grants subject to preconditions allowing greater governmental supervision or control of the private schools’ affairs.

The reality is that, absent such preconditions, all private schools have seemingly been directed to fulfil the responsibilities of the state by not only being subjected to greater governmental oversight arguably in violation of their fundamental rights, but by also having to bear the costs of providing such education to at least 10 per cent of their student body strength. This could entail consequences such as significant fee increases or less funds for school facilities and infrastructure.

It was in light of these difficulties that when India enacted a similarly enabling legislation, an additional provision was inserted obligating the state to reimburse those private schools not receiving aid or grants from the government for the costs and expenses of enforcing the said right.

In Pakistan, additionally, no school can function without being afforded a certificate of registration from the government, which is itself subject to fulfilling the prescribed “norms and standards”. Therefore, the government achieves greater control over the activities of the private sector.

Greater intrusive oversight of private schools is also mandated by the creation of the school management committee constituted with equal representation of the government. The functions of the said committee include, amongst other things, the monitoring and general working of schools and preparing and implementing “school improvement plans”.

But this is not the end of the matter. Schools, including those in the private sector, may only appoint teachers who fulfil standards and qualifications as prescribed by the government. In addition to this, even curriculum preparation and evaluation of private schools has been brought more strictly within the ambit of the government.

It may also be noted that the government and local authority have been made responsible for allocating the requisite finances for carrying out the obligations of the act in the case of public schools and for those private schools that have been given government grants.

The obligations mentioned have apparently been assumed by the Sindh government and the local authority, if any, under the presumption that after the passage of the Eighteenth Amendment, education is singly the domain of the provincial government (with the exception of the federal capital).

However, as per a recent Supreme Court decision, the “state” in Article 25-A includes both the federal and provincial government. It is also true that other provisions of the Constitution of Pakistan allow the parliament and federal government to legislate and execute policies and directives in relation to the various aspects of education.

Hence, the constitution appears to obligate even the federal government to, amongst other things, assist and assign resources for the purposes of providing free and compulsory education.

And in light of the fact that approximately 43 per cent of the population of Pakistan, with similar statistics in Sindh, is between the ages of zero to 14 years, the involvement of the federal government becomes all the more imperative.

Otherwise, the Sindh Right of Children to Free and Compulsory Education Act, 2013, may meet the same fate as its predecessor, the Sindh Compulsory Primary Education Ordinance, 2001, and remain ineffective till its eventual demise.

Therefore, although the legislation has offered a welcome path towards free and compulsory education, it has raised several questions about the availability of finances for its implementation and also the constitutionality of the restrictions being imposed on the private education sector.

With such questions being of importance to the effective enforcement of Article 25-A, it appears that some prickly issues regarding education will take centre stage in the days to follow.

The writer is a lawyer.