Constitution of Pakistan

Right to Education: Where do we stand?

About five years ago it was a historic moment when Article 25-A was incorporated in the Constitution of Pakistan through 18th Amendment which affirms that “the State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law”. Article 25-A brought some hope to improve the grim situation of education in the country which hosts the second largest number of out of school children in the world after only Nigeria. However, today the state of education in Pakistan remains dismal. The 18th Amendment also devolved the subject of education from federal to provincial governments and now provinces have command to formulate their policies regarding education. Legislation for the right to education has been passed in Sindh, Balochistan, Punjab and Islamabad capital territory. The province of Khyber Pakhtunkhawa (KP), however, is still in process of drafting a bill.

About 17% children in Punjab have never been to school. This ratio is much higher in Sindh and KP where 37 percent and 25 percent children have never been to school respectively

After successful legislation at the federal level, there have not been very positive signs for the implementation of the Act at provincial level. The Punjab Free and Compulsory Education Act 2014 guarantees that the private schools will provide free education to 10 percent students. But how will private schools ensure this and what will be the mechanism or criteria of enrollment of those 10 percent students, especially in elite schools of urban areas? Though Punjab’s education indicators are better than other provinces but still there are myriad challenges of enrollment, retention and quality of education. ‘About 17% children in Punjab have never been to school. This ratio is much higher in Sindh and KP where 37 percent and 25 percent children have never been to school respectively,’ according to a UNESCO Report on Education in Pakistan.

Although in the previous budget almost all the provinces have increased their education budget but still Pakistan is lagging behind in the field of education both in terms of access and quality of education. The Annual Status of Education Report (ASER 2014) shows the decline in the learning levels of children by 5 percent in 2014. In the rural areas survey which was carried out across the country, only 46 percent children of class five can read story in Urdu, Sindhi or Pashto languages which was 50 percent in 2013. Similarly about 42 percent children of class 5 could read sentences in English and 40 percent children could do two digit division in Mathematics. In urban areas situation is comparatively better but not satisfactory. In assessment of the quality of learning in Urdu, English and Mathematics, the ratio was 60%, 56% and 53% respectively. The private schools have better performance in terms of learning levels as compared to government schools. On the other hand 21 percent children between the ages of 5 to 16 years are out of school, the same proportion as that of 2013. Another important aspect which was noticed in the report was the growing trend of paid private tuition, especially in private schools children of urban areas where 42 percent of surveyed students were taking tuition after school hours. The report highlights the positive trend in teachers and students attendance where government school teachers and students have almost equal ratio of attendance (about 90 %). The schools were lacking in a number of essential facilities and multi grade teaching is also a trend observed in the findings.

In a recent briefing session with parliamentarians which was organized by Pakistan Coalition of Education regarding the implementation of the Punjab Free & Compulsory Education Act 2014, the School Education Department’s Deputy Secretary Budget and Finance, Mr. Qaiser Rashid admitted that there are almost 6,000 schools in Punjab where multi grade teaching is being provided to students.

Education sector has never been the top priority of our successive regimes. As a result of this criminal negligence Pakistan will not be able to meet the Millennium Development Goals (MDG’s) on education by 2015.

The major issues confronting the implementation of free and universal education include insufficient budget allocation, rampant corruption, administrative expenditures, lack of transparency, outdated curriculum and last but not least the lack of political will to revamp the education sector. Education sector has never been the top priority of our successive regimes. As a result of this criminal negligence Pakistan will not be able to meet the Millennium Development Goals (MDG’s) on education by 2015. Pakistan is hardly spending 2 percent of GDP – Gross Domestic Product – on education sector which needs to be enhanced. The Global Partnership for Education organized its Replenishment Pledging Conference in Brussels, on June 26, 2014 as part of its second replenishment campaign. The government of Pakistan has pledged the amount of worth 9,495 million dollar for education sector and aims to gradually increase the budget allocations up to 4 percent of GDP by 2018.

The 18th Amendment has empowered the provincial governments for implementing the right to education in the country. The provincial oversight can improve the service delivery and ensure transparency and accountability. It is high time to impose education emergency in the country on war footing. It is the need of the hour to do some practical steps rather than sweeping dust under the carpet. The state of Pakistan must fulfill its promise to enroll every child into school so that we could stand on equal footing with the comity of nations.

Constitutional Militarization of Judiciary

Constitution of Pakistan has been amended for 21st time since its promulgation in the year 1973. Laws are made to regulate the society and whenever needed, they may be amended for compatibility with the prevailing circumstances. Unfortunately in Pakistan, a number of constitutional amendments have proved to be disastrous rather than bringing any good. The examples include Eighth Amendment and Seventeenth Amendment whereby the parliamentary character of the constitution was changed to favor dictatorial regimes. Second Amendment is also such example in which the state took the responsibility of defining who is a Muslim and who is not. The Amendment discriminated against the Ahmadiyya community subsequently leading to their systematic persecution.

The military courts will run parallel to the existing judicial system which will effectively leave the jurisdiction of civilian courts especially Anti-Terrorism Courts (ATC), High Courts, and the Supreme Court, almost redundant.

The public opinion on the 21st Amendment is surely divided. Though a number of people are supporting it, there are other who are vehemently opposing it as well. The later include people from legal fraternity, politicians, religious leaders and nationalists. Those opposing it have varied reasons for doing so. In my opinion the concerns raised by lawyers and nationalists demand our serious consideration.

According to the 21st Amendment, the application of Article 175 of the constitution, which deals with the establishment and jurisdiction of superior courts, has been barred over the newly established military courts. The military courts will run parallel to the existing judicial system which will effectively leave the jurisdiction of civilian courts especially Anti-Terrorism Courts (ATC), High Courts, and the Supreme Court, almost redundant. The legal fraternity opines that it will seriously affect the dispensation of justice, right to fair trial, and the principle of separation of powers.

The nationalists of Sindh and Balochistan have even more serious issues with the establishment of military courts. They cry that the amendment may seriously jeopardize the future of their people who have been allegedly picked up by the intelligence agencies. They also believe that the illegal and forced disappearance of the nationalist leaders and activists would be given a legal cover without affording an opportunity of fair trial as a fundamental right guaranteed by the Constitution of Pakistan.

The constitutional amendment establishing military courts has shaken the very basis of judicial structure. The supporting view of the 21st amendment do not hold any significance when it’s looked in the purview of prevailing laws and existing judicial system. The question arises why do we need a parallel judicial system that contradicts fundamental rights guaranteed in the Constitution while we already had Anti-Terrorism Courts which were established with the objective to prosecute alleged terrorists and those found using religion/sect to camouflage their nefarious activities.

The 21st Amendment has also come to provide a constitutional cover to the controversial Protection of Pakistan Act (PPA) 2014. PPA has been enacted with the aim to provide for protection against waging of war or insurrection against Pakistan, prevention of acts threatening the security of Pakistan and for speedy trial of categorized offences falling within the ambit of PPA. The Act was passed amid overwhelming opposition by the lawyers’ community, politicians, and the Baloch and Sindhi nationalists who feared its misuse. The 21st Amendment and the PPA both have given more power to the already powerful security establishment.

Protection of Pakistan Act mandated the government to establish special courts under the Act and directed the appointments of judges who were supposed to be civilians but nothing so far has been done in this regard.

The supporting view of the 21st amendment do not hold any significance when it’s looked in the purview of prevailing laws and existing judicial system.

The 21st Amendment as well as PPA both being sunset legislations would cease to have effect after two years from their commencement. Will they achieve something positive? In the light of past precedents of military courts, it can be safely said that nothing will change unless the criminal justice system is reformed and the capacity of subordinate judiciary is enhanced.

Separation of power is one of the cardinal principles of democracy according to which every state institution has its specific, constitutionally defined role to perform; military to safeguard the borders, police to act as internal security warden, legislature to enact laws, executive to implement the laws, and judiciary to dispense justice.

This hasty Amendment contradicts the principle of separation of powers by engaging military in an affair which does not come under its ambit. Judicature has been totally barred from what actually was its duty to dispense justice. All the affairs from executive, security – internal and external – and judiciary have been vested in one institution that too for two years. Will they be actually able to hang all terrorists in short period of merely two years? I reckon, not. Judiciary, if provided the security and resources, would surely do much better than what military courts would do. High hopes from military courts may end up in utter disappointment.