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With the most powerful weapon

Education is a human right. It is the duty of the State to ensure that every child gets a sound education that is necessary to lead a good life. Whether it is funded by the State or not it is the responsibility of the State to ensure this right.

Historically speaking, education was a prerogative of the rich or the rulers in early stages of human society. It is only with the development of productive forces and with the blessings of religions, that education began to spread wider. Kannangara education reforms in modern times have been towards that direction. Although our country is approaching the 70th anniversary of Independence, we have failed to formulate a national education policy.

International Legal Regime on Human Right to Education.

Economic and social rights are found as part and parcel in many international instruments, universal and regional.

Among the universal instruments adopted by the United Nations are the following: the Universal Declaration of Human Rights (UDHR) (1948), International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966), the Convention on the Rights of the Child (1989), and UNESCO Convention on Education.

The right to education is recognised in Article 26 of the UDHR. This Article contains three paragraphs. In terms of Article 26 (1), everyone has the right to education which shall be free at least in the elementary and fundamental stages. Elementary education shall be compulsory. Article 26 (1) also provides that technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. Article 26 (2) of the UDHR prescribes the standards and objects for the content of education.

Firstly, education should reflect the development of the human personality and stresses the respect for human rights and fundamental freedoms. Secondly, it should promote understanding, tolerance and friendship among all nations racial or religious groups.

Thirdly, education should further the activities of the United Nations for the maintenance of peace. In terms of Article 26 (3), the UDHR recognises the parents’ prior right to choose the kind of education that shall be given to their children.

Definition of the Right to Education

Another important United Nations Covenant where education is also included in the International Covenant on Economic, Social and Cultural Rights. In terms of Article 13 of the ICESCR, there are four essential features of the right to education. Paragraph 6 of the General Comment issued by the Committee on Economic, Social and Cultural Rights set up under the United Nations, outlines four essential features of the right to education.

They are:

(a). Availability – Institutions and programmes must be available in sufficient quantity. All institutions will require buildings, sanitations, safe drinking water, trained teachers with domestically competitive salaries and teaching materials. Other elements may be required depending on the developmental context.

(b). Accessibility – This incorporates three main aspects: (i) non- discrimination (ii) physical accessibility/proximity and (iii) economic accessibility (which is defined in relation to each category of education.

(c). Acceptability – Form and substance, including curricula and teaching methods, must be acceptable to students in appropriate cases, parents. Given examples of ‘acceptable’ include (i) relevant, (ii) culturally appropriate and (iii) good quality. This is subject to the educational objectives set forth in Article 13(1).

(d). Adaptability - It must adapt to the changing needs of society and students and be capable of reflecting the diverse social and cultural settings.

Above elements should be present in all forms of education that are discussed under the Covenant. They are sometimes referred to as ‘the four As’.

Article 13 of the International Covenant on Economic, Social and Cultural Right (ICESCR), to which Sri Lanka is a party defines the right to education in great detail:

1. The State Parties to the present Covenant recognise the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all national and all racial, ethnic or religious groups and further the activities of the United Nations for the maintenance of peace.

2. The State parties to the present Covenant recognise that with a view to achieving the full realisation of this right:

a. Primary education shall be compulsory and available free to all.

b. Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, in particular by the progressive introduction of free education.

c. Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means and in particular by the progressive introduction of free education.

d. Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education.

e. The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established and the material conduction of teaching staff shall be continuously improved.

3. The State Parties to the present Covenant undertake to have respect for the delivery of parents and when applicable, legal guardians for their children's schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

4. No part of this Article shall be construed so as to interfere with the liberty of individuals or bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph 1 of this Article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

The right to Educational Freedom

As noted by Committee on Economic, Social and Cultural Rights, the right to education may only be properly fulfilled when both teachers and students enjoy academic freedom.

Also on the basis of that experience, the Committee noted that higher education is particularly susceptible ‘to political and other pressures which undermine academic freedom.

This freedom requires the institutional autonomy of higher educational institutions. A balance must, therefore, be struck between institutional autonomy and accountability to public needs as required by State set standards.

Articles 13(3) and (4) deal with the right to educational freedom. This has been further explained by General Comment No.13, paras 28-30. These Articles are concerned with the right to establish educational institutions outside those provided by the State. They are principally concerned with ensuring educational plurality, and with preserving educational institutions that conform with parents’ beliefs, particularly ‘……. to ensure the religious and moral education of their children in conformity with their own convictions. In practice, this would include methods such as homeschooling, Montessori schools, denominational schools and others. This freedom must be considered in tandem with the ‘minimal educational standards established by the State. The Committee clarifies that ‘……. these minimum standards may relate to issues such as admission, curricula and the recognition of certificates.

This condition on the exercise of this right must be read in light of the purpose of these articles, for if the State were capable of exercising unrestrained control over these factors, it could effectively eliminate the option of non-state schools. It is submitted that the State should regulate core standards in such subjects, ensure non-discrimination and non-violence within school systems and ensure curricular conforms with the educational objectives in Article 13 (i) of the ICESCR.

The Right to Higher Education

The right to higher education is found in Article 13(2)( c). General Comment No.13 paras 17-20 also deal with that right. The principal difference between the right to higher education and the other forms is that access to it is to be made on the basis of individual capacity. At paragraph 19, the committee writes that ‘…… capacity should be assessed by reference to all their relevant expertise and experience. It is clear that the Committee declares as violations any restrictions that are unrelated to capacity, such as gender, physical disability, etc. On the other, the Committee seems to imply that academic performance alone should not be the only criteria for determining the capacity of potential students.

The nature of State obligations

Article 2(1) of the ICESCR is the key to ICESCR. It sets forth the kinds of obligations the State parties undertake when they ratify the Covenant. It identifies the steps the government must make in order to realise each substantive rights.

Article 2.1 provides for the binding nature of the ICESCR rights:

Each State party to the Covenant undertakes to take steps individually and through international assistance and corporation and especially economic and technical, to the maximum of its available resources with a view to achieving progressively the realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

The Committee on ESC Rights identifies the following specific obligations to Article 13 as a whole.

1. To adopt a national educational strategy.

2. To adopt a fellowship programme

3. To establish minimum educational standards and an effective monitoring system

4. To ensure that communities are not dependent on child labour

5. To ensure that all international negotiations (regarding trade, loan etc) do not adversely impact the right to education

6. To ensure access to public educational institutions without discrimination

7. To ensure education conforms to the objectives in Article 13(1)

8. To provide primary education for all

9. To ensure free choice in education.

UNESCO Convention and Rights of the Child Convention

The General Conference of the UNESCO unanimously adopted the Convention on Discrimination in Education and a Recommendation in 1960.

This Convention which is comparatively short and simple contains undertakings to eliminate and prevent discrimination in education based on race, sex, language, religion and other grounds.

Article 2 of the Convention allowed for situations which when permitted in a State should not be deemed to constitute discrimination. Thus, the establishment and maintenance of ‘separate but equal’ educational systems for the two sexes were permitted provided that there really was equivalent access and equally well-qualified staff and the same or equivalent courses of study.

The Convention on the Rights of the child adopted in 1989 by the United Nations by Article 28 recognises the right of the child to education. It requires, primary education for them compulsory and available free to all, to make available secondary education, to make available higher education to all of them on the basis of capacity by every appropriate means, measures to reduce drop-out rates.

The principle of free education – or even the progressive attainment of free education – fails when the vast majority are denied higher education. The right to education coupled with the right to equal treatment also requires the State to take affirmative action to reduce disparities in education facilities.

The UGC introduced the quota system, recognising under- privileged districts, claiming that it was a temporary solution pending the elimination of those disparities. Nearly three decades later, disparities appear to continue in the educational sector in the country, due to spatial socio economic disparities.

However, it is urged to submit quota system to comprehensive review soon. 

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