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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 136
September 19, 2009

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Reviewing the views

Addressing education agenda from rights perspective

Shazzad Khan

EDUCATION has been regarded in all societies and throughout human history both as an end in itself and as a means for the individual and society to grow. Its recognition as a human right is derived from the indispensability of education to the preservation and enhancement of the inherent dignity of the human person.

The Universal Declaration of Human Rights (UDHR) states, “Everyone has the right to education.” In addition, it says that it shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Higher education shall be equally accessible to all on the basis of merit, and technical and professional education shall be made generally available.

The UDHR also stipulates that education should be directed towards the full development of the human personality and strengthening respect for human rights. Finally, it acknowledges that parents have a prior right to choose the kind of education that shall be given to their children.

Articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) set out detailed formulations of the right to education. Article 13 contains a general statement that everyone has the right to education and that education should contribute to the full development of the human personality. It also specifically stipulates:
-Primary education shall be compulsory and available free to all.
-Secondary education, including technical and vocational education, shall be made generally available and accessible to all by every appropriate means, in particular by the progressive introduction of free education.
-Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, in particular by the progressive introduction of free education.
-Fundamental education shall be intensified for those persons who have not received or completed the whole period of their primary education.
-Systems of schools shall be established and the material condition of teaching staff shall be continuously improved.
-The liberty of parents or guardians to choose for their children schools other than those established by the public authorities which conform to minimum educational standards shall be respected. In addition, article 13 recognises the liberty of parents or guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Education as development goal
Achieving the right to education for all is one of the biggest challenges of our times. The second International Development Goal addresses this challenge: universalising primary education in all countries by 2015. This is also one of the main objectives set at the World Education Forum (April 2000), where the right to basic education for all was reaffirmed as a fundamental human right.

Education is both a human right in itself and an indispensable means of realising other human rights. Education has a vital role in empowering women, safeguarding children from exploitative and hazardous labour and sexual exploitation, promoting human rights and democracy, protecting the environment, and controlling population growth. Increasingly, education is recognised as one of the best financial investments states can make.

Essential features of quality education
It has already been mentioned that ICESCR has ensured the most wide-ranging and comprehensive article on the right to education in international human rights law. While the precise and appropriate application of the terms will depend upon the conditions prevailing in a particular state party, education in all its forms and at all levels shall exhibit the following interrelated and essential features:

Availability The functioning educational institutions and programmes have to be available in sufficient quantity within the jurisdiction of the state party. What they require to function depends upon numerous factors, including the developmental context within which they operate; for example, all institutions and programmes are likely to require buildings or other protection from the elements, sanitation facilities for both sexes, safe drinking water, trained teachers receiving domestically competitive salaries, teaching materials, and so on; while some will also require facilities such as a library, computer facilities and information technology.

Accessibility The educational institutions and programmes have to be accessible to everyone, without discrimination, within the jurisdiction of the state party. Accessibility has three overlapping dimensions, such as i) non-discrimination, meaning education must be accessible to all, especially to the most vulnerable groups, in law and fact; ii) physical accessibility, meaning education has to be within safe physical reach, either by attendance at some reasonably convenient geographic location (e.g. a neighbourhood school) or via modern technology (e.g. access to a “distance learning” programme); and iii) economic accessibility, meaning education has to be affordable to all.

Acceptability The form and substance of education, including curricula and teaching methods, have to be acceptable (e.g. relevant, culturally appropriate and of good quality) to students and, in appropriate cases, parents.

Adaptability Education has to be flexible so that it can be adapted to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings.

Right to education
The fundamental question is how the obligations relating to the right to education undertaken by Member States under international and regional instruments are incorporated into national legal systems? This is all the more important for achieving the Dakar goals, in keeping with the commitments made by Governments for providing education for all, especially free and compulsory quality basic education. But in spite of such legal obligations and political commitments, millions of children still remain deprived of educational opportunities, many of them on account of poverty. They must have access to basic education as of their right, in particular to primary education which must be free. Poverty must not be a hindrance and the claim by the poor to such education must be recognised and reinforced.

The responsibility devolves upon the governments to ensure that political commitments undertaken at the World Education Forum are translated into national laws and policies. As a result, the constitutional and legislative foundation of the right to education assumes added significance, taking fully into account the legal implications of the Dakar Framework for Action. The discussion on the Right to Education and follow-up to the World Education Forum (Dakar, April 2000) organised by the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR), in co-operation with UNESCO on 14 May 2002, clearly showed how crucial it was to introduce constitutional provisions on the right to education as well as appropriate enabling legislation so that the state obligations under the relevant international conventions are incorporated into the domestic legal order.

In a concerted effort directed to materialising rights of the people, the dynamics between right-holders and duty-bearers is a must through some process or approach. One such popularly used and effective approach having been adopted globally is rights-based approach (RBA). In Bangladesh situation the obligation of the state towards implementing the agenda of education as part of fundamental rights is totally absent. The constitution of Bangladesh does not recognise education as a fundamental right. Merely an obligation of education is articulated in article 15 as part of “provision of basic necessities” under the fundamental principles of state policy. Unless and until the term “education” is taken for granted as a fundamental right, the obligation of the state will remain unchallenged from the common people. Therefore, a people's movement though RBA facilitated by social actors and reformers is imperative in Bangladesh. In this regard, people's expectation from Sheikh Hasina's government to recognise education as a fundamental right, is very high.

Guiding Principles of RBA
A right-based approach to development including education has certain guiding principles. The most important and likewise implicit in the UN Charter, is that development has a responsibility in achieving the full realisation of human rights. Human rights cannot be realised without development. Development should seek empowerment both in the process and in the outcome of poverty eradication strategies.

Essentially, a rights-based approach integrates the norms, standards and principles of the international human rights system into the plans, policies and processes of development. The norms and standards are those contained in the wealth of international treaties and declarations. The principles include equality and equity, accountability, empowerment and participation. A rights-based approach to development includes the following elements: a) express linkage to rights, b) accountability c) empowerment d) participation, e) attention to vulnerable groups and f) equality and non-discrimination.

The current poverty discourse stresses the need to integrate governance issues into poverty reduction strategies because more attention needs to be paid to accountability, transparency, empowerment, responsiveness and participation of people in poverty programmes. Needless to say, without “education as fundamental right” the existing poverty cannot be eliminated. The human rights framework in this respect is of invaluable assistance.

Shazzad Khan is a development worker attached with Manusher Jonno Foundation (MJF).


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