Pakistan: Discriminatory rules preclude Afghan refugee children from attaining secondary education

by | Sep 30, 2020

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About Rida Tahir

Rida Tahir is a UK qualified Barrister-at-law, a licensed Advocate in Pakistan and a human rights activist.

Citations


Rida Tahir, “Pakistan: Discriminatory rules preclude Afghan refugee children from attaining secondary education”, (OxHRH Blog, September 2020), <https://ohrh.law.ox.ac.uk/pakistan-discriminatory-rules-preclude-afghan-refugee-children-from-attaining-secondary-education> [Date of access].

In 2012, the Board of Secondary Education in Karachi (BSEK), made it mandatory for ninth grade students to possess a Child Registration Certificate. The certificate serves as an identity for nationals below the age of 18. Refugee children cannot obtain it. They are instead provided with Proof of Registration (PoR) cards, which merely entitle the holders to reside legally and temporarily on Pakistani soil and protects the holder against refoulement. No other rights attach to the card. Hence, refugee children cannot achieve secondary education on the basis of their refugee status. This is discriminatory and unlawful under national and international law.

In 2010, the 18th Amendment to the Constitution of Pakistan devolved the responsibility of education to provincial governments. As a result, each province has differing administrative rules and policies.  No legal obstacles to education in the Provinces of Khyber Pakhtunkhwa and Balochistan refrain refugee children from access to secondary education. However, the 60,000 refugees residing in Karachi (city in the Province of Sindh) have little to no chance of completing secondary education.

As per Art 25A of the Constitution, the State has the responsibility of providing free and compulsory education to all children between the ages of five and sixteen years. Additionally, the provincial government of Sindh is also obligated to provide the same under S. 3(1) of The Sindh Right of Children to Free and Compulsory Education Act 2013. Furthermore, the Act via S.7(4) puts an obligation on the provincial government to,‘’…ensure compulsory admission and attendance to complete school education…’’ and that the,’’ …disadvantaged child is not discriminated against and prevented from, on any grounds whatsoever for pursuing and completing education.’’

In Ghulam Mustafa v Province of Sindh (2010 CLC 1383), it was held that Art 25A extends that right of compulsory education to all children. This was upheld by the Supreme Court in Constitution Petition No. 37 Of 2012. Iftikhar Muhammad Chaudhry, C.J. held that Art 25A had to be read with Art 29(1) and Art 37 of the Constitution which mandate the State to promote, with special care, the educational and economic interest of backward classes or areas. Therefore, the rules precluding refugee children from attaining secondary education are unlawful under the federal and provincial laws in Pakistan.

Although Pakistan has not signed or ratified the Convention relating to the Status of Refugees, it has ratified a number of international treaties that obligate the government to provide education to refugee children. Three treaties will be mentioned.

Pakistan ratified the CRC in 1990, it obligates Pakistan via Art 28 to provide the right to education ‘’…progressively and on the basis of equal opportunity…’’.Similarly, Pakistan is a State Party to the ICESCR which stipulates in Art 13 the right ‘’…of everyone to…Secondary education in its different forms, including technical and vocational…generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education.’’ Moreover, Pakistan ratified CEDAW in 1996 and is obliged under  Art 10 to ‘’… take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education’’. The international treaties do not accept discrimination on the basis of a child’s status as a refugee.  Pakistan’s ratification of the aforesaid treaties has created legally binding and enforceable obligations on the State under international law.

Pakistan is a compassionate country that hosts around 2.5 million Afghan refugees. However, it is also a developing country. 44 per cent of Pakistan’s total population in the 5-16 age group do not attend school. Comparatively,  80 per cent  of refugee children do not attend school. This has far reaching implications for Pakistan and Afghanistan as it restricts opportunities for sustainable return, stifling the vast potential of national and refugee youth and limiting national progress in education and development.

In my view, as Pakistan works on reforms in its educational system, it should adopt forward-looking measures in line with its national and international obligations and as per SDG 4.5, ensure “…inclusive and equitable quality education and lifelong learning opportunities for all’’. Pakistan should recognise the right to education on the basis of equal opportunity. Further, the discriminatory  rules should be scrapped. Moreover, the international community should  support Pakistan in its educational reforms.

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