Human Right to Education | Daily News

Human Right to Education

Education, vital for children’s future.
Education, vital for children’s future.

Part 1

Judicial Activism is a device to accomplish the cherished goal of social justice. Social justice is achieved not by lawlessness process, but through legally turned affirmative action, activist justicing and benign interpretation within the parameters of law. It suggests that the process to secure social justice needs adherence to the discipline of law and to operate within the circumference of the body of laws. It emphasizes for positive action under law.

The concept of Human Rights gathers strength from year to year, takes root in the consciousness of people of the most diverse cultural and ethnic backgrounds and reflects itself increasingly in the legal systems of many nations. Human rights epitomize a complex, interactive, dialectical and yet unfortunately volatile relationship between people and their States. Both the Universal Declaration of Human Rights of 1948 and the Vienna Declaration of 1993 have reaffirmed indivisibility of human rights.

A Bill of Rights which is a fundamental feature of the modern written constitutions is not a self-executing instrument thereby requiring judicial activism for its reality. The ideological scheme involving justiciable issues to which many post colonial constitutions including Sri Lanka and India were victims led to the recognition of civil and political rights as justiciable rights over the Economic, Social and Cultural Rights (ESCR). The judicial creativity pioneered by the Indian Supreme Court and followed by Sri Lankan Supreme Court facilitated the transition of the right to education and some of the ESC Rights from their non-justiciable constitutional status of the Directive Principles of State Policy (DPSP) to that of justiciable rights. Equality provisions of the Constitution also served as a source of judicial activism for this transition.

In Sri Lanka a number of education reforms have been introduced with a view to increasing the volume of output and improving the quality of the output of the educational system. However, there exists an inequality of educational opportunity available to children from the rural area, the urban slums and disadvantaged regions.

There are serious disparities in terms of physical facilities between schools situated in rural, remote disadvantaged areas. This situation greatly affects the quality of education and the retention of students in schools. A related fact to notice that Grade One admissions have become a controversial issue and matters came to light in recent times with the interdiction of several school officials at popular national schools. It was noted in the media that there have been persistent allegations of malpractices and corruption in school admissions and the government has decided to investigate the process at several schools.

Therefore just providing for equality of opportunity for all students without rectifying disparities specially in terms of facilities in schools, in another words an objective of formal equality is totally inadequate in Sri Lanka. A concrete effort towards substantive equality in terms of affirmative action is therefore essential. Towards this end positive judicial approach, so-called judicial activism as far the role of the judiciary is concerned, specially in the absence of appropriate legislative measures in bridging the gap could also play a substantial role.

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), the Convention on the Elimination of All Forms of Racial Discrimination (1965), and the Convention on the Elimination of All Forms of Discrimination Against Women (1979).

The misconceptions about the enforcement and justiciability of economic, social and cultural rights have been out to rest now by the General Comments of the UN Committee on Economic, Social and Cultural Rights and the Limburg Principles on the Implementation of the ICESCR (Limburg Principles) (1986) and the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (Maastricht Guidelines) (1997).

The right to education is recognized 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 recognizes the parents’ prior right to choose the kind of education that shall be given to their children.

A similar provision is contained in the International Covenant on Economic, Social and Cultural Rights. This Covenant recognizes the right to education and stipulates that education should be purposive and ‘directed to the full development of the human personality and the sense of its dignity’. In order to realize this right, primary education should be free and compulsory; secondary education in its various forms should be made generally available and accessible to all by every appropriate means and by the progressive introduction of free education. Similarly, higher education should be made accessible to all on the basis of ability and by the progressive introduction of free education.

International Legal Regime on Human Right to Equality

With regard to equality, in the United Nations Charter of 1945, faith is affirmed in the equal rights of men and women (Preamble). Preamble of the UDHR also recalls the reference in the preamble of the UN Charter to the equal rights of men and women.

In the two Covenants namely, International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) the tradition of the UDHR is followed at least in the beginning. Part II of the two Covenants contains a rule of non-discrimination which largely follows Article 2 of the UDHR. Article 2 of the Convention on the Rights of the Child (CRC) embodies the principle of non-discrimination. Article 2(1) (d) of the Convention on Elimination of Racial Discrimination (CERD) and Article 2(b)(e) and (f) of Convention on Elimination of Discrimination against Women require the State to bring an end to discrimination by any person, group or organisation.

UNESCO and Principle of Equality

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.

US Constitution and the Right to Education

In America, where the origin of ‘equal protection’ can be traced, the 14th Amendment which became law in 1868, states in section I that ‘No State shall …… deny to any person within its jurisdiction the equal protection of the laws’. The Amendment was primarily motivated by the need to protect the Negroes from racial discrimination. But with the passage of time, the Amendment was used to protect any individual or class of persons from discrimination.

One important case in the field of admission to higher education decided by the US Supreme Court is Regents of University of California v Bakke. In this case the constitutionality of a special admissions programme of the Medical School Davis, which was designed to assure the admission of a specified number of students from certain minority groups, came out. The Justices were deeply divided on key issues. Five of the nine Judges held the programme was unconstitutional.

In the programmes at Davis sixteen places in each entering class of one hundred were reserved for minorities. There were two admission programmes - a regular programme and a special programme. Under the regular programme, candidates with undergraduate grade point averages below 2.5 were summarily rejected. This cut-off point did not apply to the special programme which was reserved for minorities. Bakke, a white applicant was rejected both in 1973 and 1974 although his achievements were significantly higher than some applicants who were admitted under the special programme. The Court dealt with the purposes that the special admission programme purported to serve and which the University claimed served an important governmental objective. It held that the Constitution forbade a purpose that sought to assure within the student body some specified percentage of a particular racial group.

A classification that aids persons of a relatively victimized group at the expense of other innocent individuals would not be approved unless there are judicial, legislative or administrative findings of such victimization and its extent and the remedial action proposed inflicts the least possible harm to such innocent persons competing for the benefit. In the instant case there were no such findings. With regard to another stated purpose, that of improving the delivery of health care services to communities currently underserved, the Court held that the preferential classification was not shown to have such effect. The Court held that the attainment of a diverse student body was a permissible goal and went on to examine the question whether the classification under test was necessary to promote that goal. The majority refused to accept the argument that a racial quota was the only effective means of serving the interest of diversity. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristic of which racial or ethnic origin is but a single though important element. However, the special programme at Davis focused solely on ethnic diversity and this would hinder rather than further the attainment of genuine of diversity.

(The writer is a retired Professor in Law in the University of Sri Jayawardenepura. He is an Attorney-at-Law and practiced in Courts with PhD in law)

To be continued

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