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Wednesday, November 14, 2018 02:03:26 PM
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Education as a fundamental right

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08th-Nov-2018       
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Joseph Noel M. Estrada :
We now have at least two versions as proposals amending the 1987 Philippine Constitution: the one drafted by the Consultative Committee reviewing the 1987 Constitution, and the House version covered by House Report 881.
There are two major points in these proposed amendments that directly affect education: a) In the House version, it DELETED the entire Article XIV of the 1987 Constitution! b) In the Consultative Committee version, the "right to education" is now made part of the Bill of Rights. More significantly, the proposed Bill of Rights, which now includes the right to education, states that these rights are demandable against both State and non-State actors.
Is the right to education really inviolable and demandable against the State and non-State actors?
Here's my take.
The right to education is recognized in international law as a fundamental human right. International human rights law lays down core provisions regarding the right to education. The legal bases are established by various international mechanisms such as the 1948 Universal Declaration on Human Rights (Article 26), the 1960 UNESCO Convention against Discrimination in Education, the 1966 International Covenant on Economic, Social and Cultural Rights (Article 13), as well as other instruments covering specific components of the right to education.
The Philippines, as a party to these international treaties that declare the right to education as a fundamental human right, is bound by the core obligations incumbent upon every member State.
States obligations under these international laws include providing free and compulsory primary education, making secondary education generally available and higher education accessible on the basis of individual capacity, while introducing progressively free education at both these levels.
The following are some provisions of the 1987 Philippine Constitution which conform to these international obligations: "Article XIV, Section 2 (2): Xxx elementary education is compulsory for all children of school age; Article XIV, Section 1: The State shall protect and promote the right of all citizens to quality education at all levels, and shall take appropriate steps to make such education accessible to all; and Article XIV, Section 2 (3): [The State shall] Establish and maintain a system of scholarship grants, student loan programs, subsidies, and other incentives which shall be available to deserving students in both public and private schools, especially to the under-privileged."
International laws bind States
International laws and treaties only bind States, and not private entities or non-State actors. Thus, the right to education, as a fundamental human right under international law, is demandable against the State and not against private entities in the absence of State intervention.
While providing that education is the primary responsibility of the State, international human rights law also recognizes that education may be provided by non-State actors such as religious institutions, non-government organizations, foundations and even proprietary entities. Indeed, when education is delivered in these non-State actors, it cannot be demandable. In our jurisdiction, relevant to this is the pronouncement of the Supreme Court in the landmark case of Ateneo vs. Capulong that, in recognition of its academic freedom, the admission to a private institution of higher learning is discretionary upon a school, the same being a privilege on the part of the student rather than a right.
In the Philippines, we have the complementarity principle where the indispensable role of private education is recognized. Article XIV, Section 4 (1) provides: "The State recognizes the complementary roles of public and private institutions in the educational system and shall exercise reasonable supervision and regulation of all educational institutions."
International law also recognizes that private educational institutions are not operated by public authorities but are controlled and managed by the private entities themselves subject to the minimum State standards. Our jurisdiction adheres to this principle when our Supreme Court in the case of "Garcia v. Faculty Admission Committee (1975) held that, private educational institutions do not operate merely by delegation of the state; and they differ from the commercial public utilities whose right to exist and to operate depends upon State authority."
Non-discriminatory education
In intenational law, at the core of the primary responsibility of the State to ensure the right of access to education is to make sure that programs are on a nondiscriminatory basis. Hence, our own Constitution, under Article XIV, Section 2, (3) has the following State mandate: ?Establish and maintain a system of scholarship grants, student loan programs, subsidies, and other incentives which shall be available to deserving students in both public and private schools, especially to the under-privileged. Emphasis should be on ?deserving students in both public and private schools when the government provides student assistance programs. This brings to light the implementation of Republic Act 10931: Are we providing assistance to all deserving tertiary students, both public and private?
Freedom to establish educational institutions
In the Convention against Discrimination in Education, the freedom to establish educational institutions was also recognized. This refers to the "freedom of natural persons or legal entities to establish their own educational institutions and the liberty to establish and direct educational institutions," subject to the requirement that these must conform to minimum standards laid down by the State. In other words, the State has the obligation to establish a regulatory framework for private education and to ensure that international minimum standards are met.
What is reasonable regulation?
The Philippine Constitution mandates reasonable regulation of all educational institutions. In the deliberation of the Constitutional Commission of the 1987 Constitution, the honorable Serafin V.C. Guingona said that when the constitution speaks of State supervision and regulation, it does not in any way mean control but only a reference to the power of the State to provide regulations to ensure that these are duly implemented. He added that it does not include the right to manage, dictate, overrule, prohibit or dominate.
Freedom in education must be guaranteed by the State
As part of the discussion of the Right to Education in the international arena, international laws also promote "Freedom in Education" that must be guaranteed by the State. It is also referred to as "free parental choice of education."
Article 5(b) of the Convention against Discrimination in Education provides "the personal freedom of any person to choose between state-organized and private education refers to parents' freedom to ensure their children's moral and religious education in conformity with their own convictions."
Here, the State is said to have a negative obligation to not interfere in this choice of the parents.
This is the main argument I used when I filed an injunction case against a Department of Education (DepEd) memo which bars enrollment of kindergarten pupils in non-DepEd schools whose fifth (5th) birthday falls beyond the cut-off of June 1 to August 31. This, in my opinion, clearly violates the principle of ?ree parental choice of education under international laws, and our own Constitution which states, "Without limiting the natural rights of parents to rear their children, elementary education is compulsory for all children of school age."
Status quo
Deleting the entire article on education in the 1987 Philippine Constitution (Article XIV) and declaring the Right to Education as demandable against non-State actors, as proposed, should both be seriously studied and reviewed in the light of the foregoing discussions. These will certainly have serious impact on existing legislation and the wealth of jurisprudence affecting the education policy landscape.
I am of the view that while we discuss federalism and other constitutional reforms, the fundamental education principles currently laid down in the 1987 Constitution should be shielded and preserved.
I am for the status quo of the current education provisions of our constitution.
Who's with me?
(The author is the Managing Partner of Estrada & Aquino Law, Co).

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