A Look Back At Education As Federal And Provincial Subject After The Eighteenth Amendment

A Look Back At Education As Federal And Provincial Subject After The Eighteenth Amendment

The Eighteenth Amendment to the Constitution of Pakistan was popular for the reason that it ensured autonomy for the federating units of Pakistan and it was after passage of the same that the subject of education fell under the exclusive domain of the provinces. The Federal Legislature still has the power to legislate over the subject of education to the extent of federal territory, but as far as the provinces are concerned, it cannot enact legislation except in the matters pertaining to higher education, research and scientific and technical institutions which fall within Part II of Federal Legislative List.

The above-mentioned view was also maintained in Rana Aamer Raza Ashfaq and another Vs. Dr. Minhaj Ahmad Khan and another[2012 SCMR 6]:

“The subject of education is within the exclusive legislative domain of the provinces.”

The right to education was also added as a fundamental right by Eighteenth Amendment Act of 2010 under Article 25-A, which reads as follows:

“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.”

And through the 18th Amendment, the prime responsibility of education lied on the shoulders of provincial governments.

Miss Tahira Bibi in her research over Article 25-A and its implementation says:

“The implementation of this provision is on part of provincial government and there might be different levels of implications at different levels.”[1]

The Former Chief Justice Iftikhar Muhammad Chaudhry held the following in the Petition regarding miserable Condition of the schools” [2014 SCMR 396]:

“After devolution of the subject of Education to the Provinces (by way of 18th Amendment to the Constitution), it was obligatory on the Provincial Governments to ensure that children of respective areas received education as a fundamental right at all tiers of the education system.”

Education Pre- And Post-Eighteenth Amendment:

  • Before the 18th Amendment, education as a subject was placed at Entry 32, under Part I of the Federal List which was moved to the Federal Legislative List Part II, as entry 12.
  • Part II of the FLL[2] had no entry related to education before the Eighteenth Amendment.
  • Entry 38 of the concurrent list contained provisions related to education as “curriculum, syllabus, planning, policy, centers of excellence and standards of education”.
  • With the abolition of the concurrent list by the 18th Amendment, all of those functions, except standards of higher, education got transferred to provinces.
  • A new entry, entry number 12, stating that “standards in institutions for higher education and research, scientific and technical institutions” was placed in Part II of the Federal Legislative List thus establishing a joint jurisdiction of both the provinces and the federation over this matter.
  • Before the 18th Amendment, education was recognized as a right in all previous Constitutions of Pakistan but was not justiciable. The 18th Amendment Act of 2010 made this right justiciable, i.e. it could be enforced through courts. Moreover, education was a joint subject of the federation as well as the provinces as discussed above, but after the 18th amendment, it fell within the exclusive jurisdiction of provinces.

The Eighteenth Amendment Act 2010 inserted following entries to the Federal Legislative List Part II which pertain to education:

  • Entry no. 6: All regulatory authorities established under federal law.
  • Entry no. 12: Standards in institutions of higher education and research, scientific and technical institutions.
  • Entry no 13: Inter-provincial matters and coordination.[3]

The following table shall lead to a clear idea about how the 18th Amendment Act of 2010 resulted in a jurisdictional shift on the subject of education.

Subject Pre-Eighteenth Amendment Post-Eighteenth Amendment
A)  Right to Education  Recognized but not justiciable. Justiciable by insertion of Article 25-A.
B)  Education (Policy and planning)  Joint jurisdiction(Federal+ Provincial). Provincial Jurisdiction.
C)  Curriculum Joint Jurisdiction. Provincial Jurisdiction.
D) Higher education Joint Jurisdiction. Federal jurisdiction with the mandate of CCI because it lies in Federal Legislative List part II (Entry 12).

Based on this tabular status of education pre- and post- 18th Amendment, it is quite clear that after the 18th Amendment, the Federation has lost its dominance over the subject of education, leaving only higher education on which the Federal Legislature still had power to enact legislation, but even higher education fell under the Federal Legislative List Part II where the federation can enact only by consultation with re-constituted and more empowered Council of Common Interest.

Role of the Federation Towards Education

Although it is a well-settled law that the subject of education has completely devolved into the provincial domain but it does not mean that the federation is exempt from its duty and has nothing to do with education in Pakistan. The federal government cannot deny enforcement of Article 25-A as a fundamental right of citizens.

According to Article 25-A, the state shall provide free and compulsory education. What constitutes the “state” or what falls within the definition of the state can be traced from Article 7 of the Constitution of Pakistan 1973 which says:

In this part, unless the context otherwise requires the state means the Federal Government [Majlis-e-shoora (Parliament)], a Provincial Government, a Provincial Assembly and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess.”

This means that the term “state” in Article 25-A includes not only provincial and local authorities but also the Parliament.

The federation can also not deny Article 2-A which encourages a lifestyle in accordance with the teachings of Quran and Sunnah and these again emphasize on education and its importance.

A research paper published by the Pakistan Institute of Legislative Development and Transparency (PILDAT) covering the Responsibilities of Federal Government as to Enforcement of Article 25-A of the Constitution says that the federation is obligated to provide “special financial support, monitoring and harmonization and enabling environment”.[4]

Despite the allocation of subjects into provincial and federal domains under the 18th Amendment, the federation still has some duties towards its provinces and citizens. Therefore, no definitive line can be drawn while bifurcating the roles between the provinces and federation particularly with regard to the subject of education, considering the power that the center still wields.

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References

  • Constitution of Pakistan by M. Rafiq Butt
  • Constitution of Pakistan by M. Mahmood 14th Edition
  • Constitution of Pakistan by Mahmood 13th Edition
  • Constitution of Pakistan by Nafeer A. Malik 2011 Edition
  • Federal and Provincial Roles and Responsibilities in Education by ISAP (Institute of Social and Policy Sciences)
  • Right to Free and Compulsory Education in Pakistan: Enforcement of Article 25-A of the Constitutionby PILDAT
  • Constitutional Development in Pakistanby Shahid Hamid
  • Institutional Analysis of Council of Common Interests (CCI): A guide for functionaries by Ahmad Mahmood Zahid
  • Article 25-A: Implications of Free and Compulsory Education by TahiraBibi

[1] Bibi, Tahira, Article 25-A: Implications of Free and Compulsory Secondary Education, Para. 9, line 3-4
Available at: http://vfast.org/journals/index.php/VTESS/article/download/201/294  [13 June 2016]

[2] Federal Legislative List

[3] Eighteenth Constitutional Amendment Federal and Provincial Roles and Responsibilities in Education by I-SAPS
Available at: http://aserpakistan.org/document/learning_resources/2014/18th%20Amendment%20Federal%20and%20Provincial%20Responsibilities%20in%20Education.pdf [13 June 2016]

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.

Waiza Rafique

The writer is a practicing Lawyer and can be reached at waiza.azamrai@gmail.com



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