Claiming the right to education through court based intervention

• In Event: Reclaiming public education: The movement to defend a sustainable, just and human future for all

Proposal

As is the case throughout the world, one of the key questions facing the state in Nepal is whether the current dual education system (public and private) is capable of narrowing class and other inequalities or whether it perpetuates and deepens intersectional forms of discrimination. Indeed, there is some evidence in Nepal, as elsewhere, that such dual education systems risk harming the human rights of the most marginalized in society thereby deepening inequality. In fact, and presumably to militate against such challenges, the Constitution specifically mandates the State to regulate private sector involvement in education. Despite this mandate, in practice, at present, private educational institutions, registered as companies, remain underregulated and unaffordable and they continue to make large profits without being adequately scrutinized. Where such regulation does exist it is all too often underenforced.

Understanding this situation, ICJ initiated a campaign to orient litigating lawyers on the international and domestic legal instruments ensuring the right to education and holding the State accountable for its obligation to respect, protect and fulfill the right to education.

Lawyers in Nepal have been unifying to defend public education, making the state accountable for constitutions guaranteed by international law. They have been defending public education and a way of protecting against unregulated institutions.

As a result, and in support of ICJ, litigating lawyers in Nepal have begun to attempt to approach courts to secure the realization of the right to education and demand strict regulation of the private actor involvement in education. Thus far, attempts at strategic litigation have received positive responses by courts. This response was not received quickly, there were constant initiatives of orienting the lawyers on the right to education and impacts of privatization on the access to education.

In this session, ICJ will be sharing the experience of working with the litigating lawyers at national level and building their knowledge on national and international laws on right to education. Further, ICJ shall share why it is necessary to claim the equitable access to public education on the one hand and regulation of the private educational institutions on the other hand.

Importantly, the successful court-based intervention can be an example of how the available legal tools, principles like Abidjan Principles can be used through court-based intervention in making States accountable for their human rights obligations.

One key question to be discussed shall also be the challenges on the implementation of the successful court order. And this will no doubt require nation-wide efforts at strategic litigation and efforts to pressurize the order/judgment implementing authorities in better realization of the right to education.

Author

• Karuna Parajuli, International Commission of Jurists