Stifling education

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School

A few months ago Brigadier Sajjad Azam, Station Commander of Rawalpindi, ordered cancellation of No Objection Certificates issued to schools established in Rawalpindi Cantonment as and when they became due for renewal. The rationale was to shut down private schools established in the vicinity of the GHQ and eradicate a source of nuisance and inconvenience for the military high command, as they caused traffic congestion for an hour at the time of the start and close of school. When inquired where these neighbourhood and community school should relocate, the Station Commander announced in characteristic military style that the future of the schools and their students and staff were not his problem. To the good fortune of private schools the-then Corps Commander of Rawalpindi paid heed to the schools’ frantic appeals and agreed to review the policy framework pursuant to which these schools are registered and issued NOCs. Thus, while the project to uproot private school from Rawalpindi Cantonment has not been shelved, it stands muted for now.

The hostile treatment being meted out to private schools in Rawalpindi Cantonment is indicative of the priority our nation and our society accord to education more generally. Let us start with the structural and policy issues. In 2002 the Army Station Headquarter devised a policy requiring private schools to seek an NOC from the Station Commander in order to establish and operate a school in Rawalpindi Cantonment. The application requires schools to furnish a gazillion documents, including details of the educational facilities to be afforded by the school, lease agreement for the property where the school is to be established, health and a hygiene certificate for such property, and no-objection certificates from immediate neighbours, etc.

To say that the NOC award process vests arbitrary authority in the office of the Station Commander is putting it mildly. And its exercise in favour of an applicant school that has no access to the higher echelons of the military high command is a miracle to be celebrated. But this is not the problematic part. The trouble is that the NOC awarded after this long-drawn battle is devoid of legal authority in view of our courts. The Cantonment Act, 1924, and the rules framed pursuant to it confer no legal authority on the Station Commander to rule upon the establishment or fate of schools. Establishing, maintaining and assisting primary schools is a legal obligation of the Cantonment Board, which is authorised to make byelaws "for the maintenance of schools and the furtherance of education generally." But the standard operating procedure for award of NOC to schools being enforced by the office of the Station Commander is not a cantonment byelaw and has not been enacted under the authority of the Cantonment Act.

The regal conduct of the Station Commander who continues to allow or countermand activities within the cantonment without regard to the legal source of his authority is the manifestation of a bigger menace: the unwavering belief of our guardians that they are above the law. The authority to develop and enforce a sensible education policy can be vested in the Station Commander by promulgating appropriate byelaws pursuant to the Cantonment Act. But why bother with law and legal niceties when the Station Commander’s de facto power is accepted by all and sundry? While the whimsical exercise of assumed authority doesn’t impact the life of the Station Commander (with even the courts looking the other way) it does jeopardise the rights and interests of the inhabitants of Rawalpindi Cantonment. For example, the Station Commander will physically seal a private school established in Rawalpindi without his NOC. However, the award of the NOC doesn’t confer legitimacy on the school if its existence is challenged in the court on grounds of nuisance.

Unfortunately, our high court has contrived an impetuous and ill-considered judicial doctrine on the issue of establishment of private schools in residential areas that punishes educational establishments for the sins of government and urban planners. In 1996 Justice Amir Alam Khan passed a judgment against Lahore Grammar School and laid down two imprudent rules expanding the concepts of "commercial activity" and "private nuisance" at the expense of education. He held that (i) provision of private education is a commercial activity and can therefore not be undertaken in residential accommodation, and (ii) "opening and establishing of school in residential area does fall in the definition of private nuisance and persons living in the immediate neighbourhood or even in the vicinity are entitled to enforce their right of quite enjoyment of their properties by seeking to restrain anybody living in the same area from disturbing the peace and tranquillity thereof by opening and establishing school in residential quarters."

This ruling has been indiscriminately applied by high courts in restraining schools from operating in residential areas. There are at least there fundamental problems with this judicial approach. One, there has been no sensible discourse on whether or not providing school education is a commercial activity. Merely because private schools cannot subsidise the cost of education and rely on student fees to satisfy their funding needs does not transform the process of imparting education into a trade solely driven by the urge to make money. The fact that there exist unscrupulous elements ripping off students for quick profit highlights the need for more effective monitoring and regulation of the education sector, but doesn’t justify denouncing all private schools as money-minting enterprises. Providing education is an obligation of the government. By creating facilities to cater to the educational needs of over 10 million students in Pakistan, private institutions are stepping in to provide public service and fill a crucial void left wide open by the state and its poor governance.

Two, in determining what amounts to private nuisance, the courts have made no effort to balance the collective needs of the society and the personal rights of individuals. Even when it comes to fundamental human rights, such a balance needs to be struck. For example, one citizen cannot be allowed to exercise his right to free speech in a manner that defames another. Yet, in expanding the concept of private nuisance and upholding the unfettered right of citizens to peaceful and tranquil residence, the courts seem oblivious to the shared public interest in promoting education, especially in a society where the demand for educational facilities surpasses the supply by a wide margin. There is general consensus in the country that education is the panacea to our collective national ills. But what kind of a social value structure are we propounding when we allow an irritable individual to shut down a neighbourhood school? The future of our nation hangs in a balance due to scant educational opportunities, and yet we give residential convenience primacy over needs of education?

Three, these twin doctrines of nuisance and education-as-commercial-activity have been manufactured in complete ignorance of the globally acknowledged and entrenched concept of community and neighbourhood schools. Why is it that community and neighbourhood schools all over the world (and even in Islamabad – our only planned city) are located in residential areas? If our courts have it right, should schools be located in plazas and commercial buildings instead? Would that be an environment congenial for our kids to be tutored in?

And, four, the enforcement of the judicial resolve to cleanse residential areas of schools is as arbitrary as the policy itself. If a school operating in Rawalpindi Cantonment under an NOC duly issued by the Station Headquarter must be shut down because its campus is located on leasehold land that falls within the residential category, should the court not apply the rule uniformly and summon the record of the other 400 schools also operating in residential properties under similar NOCs within the same city? Is it just and equitable for our superior courts to shut down the one-odd school located in the vicinity of a lawyer’s house and close their eyes to all the others operating under identical conditions? Do courts have no legal or moral obligation to highlight the root cause of the problem and prod the government to address the pressing issue of urban planning with a view to creating a sustainable schooling policy?

Supporting neighbourhood schools should not amount to destroying the tranquillity of our neighbourhoods. But instead of shutting down schools that choke up roads twice a day, we must force the government to (i) make zoning regulations that cater for the needs of education in each neighbourhood, (ii) introduce a dedicated school transport system to curtail rush-hour traffic, and (iii) create a transparent legal mechanism for establishment of schools. Taking out half-page ads in newspapers to underpin the importance a government attaches to education ravages our already meagre education budget and is sheer madness. Is it not incredible that our government policy, our judicial policy and our social attitudes militate against the proliferation of educational facilities, and yet there is national consensus that education is our ticket to the Promised Land? Education will be no panacea until it becomes a priority for the state and the society and is reflected as such in our public policy choices and allocation of resources. It is time that we start putting our money where the mouth is.



Email: sattar@post.harvard.edu