COVID-19, the right to education and Bangladesh

The COVID-19 pandemic has brought in a paradigm shift in the understanding of human rights jurisprudence. Like many other human rights, the right to education is now continuously being rethought and renegotiated within the constant pulls of statist economic priorities and public health emergencies. In the context of Bangladesh, these pulls are rather strong. The pandemic has penetrated the thin veneers of ‘economic constraints’ and ‘progressive realisation’ that the country always hid behind. It is the pre-pandemic priorities, manifested through the rights-enforcement and budgetary frameworks, which are now defining the vulnerability of the country in terms of protecting the citizens’ right to education, among other rights, at present. The responses to COVID-19 pandemic in the education sector are failing to be an equaliser and, for the reasons set out below, are not compliant with the country’s international human rights obligations.

Education in Bangladesh during COVID-19

The responses Bangladesh made to COVID-19 in general were chaotic, uncoordinated and unorganised, to say the least (see, here). Responses that were directed towards the education sector amid the pandemic conveniently kept pace with that chaos. On 26 March 2020, the State declared (or imposed, so to say) a nationwide lockdown in the name of a ‘general holiday’ closing down all schools, colleges and educational institutions, among others. The lockdown was conditionally lifted on 31 May 2020 after more than two months. The confused calculations that are being made by the State are difficult to be discerned or understood. The lifting of lockdown at this point is being criticized in circumstances where social distancing cannot be ensured in a densely populated country like Bangladesh.  For the education sector however, the lockdown remains in place until September – creating the perception that unlike other important sectors that need to reopen gradually, the education sector can wait. Amidst these measures, the country opted for remote education which at the time of this writing, is a reality permeating the education sector across the country.   

In the capital of the country, school teachers started using a mixture of real-time interactive classes, with a combination of pre-recorded materials and homework based digital sessions on a small scale. This, however, is not the experience of the entire country. As an initial response, pre-recorded lessons for primary school students were broadcasted by a state-run television channel for children across the country. Putting aside the effectiveness of this non-interactive teaching method, the fact that around 50% households of the country do not have a television set means that a large number of children have been kept outside its ambit. Subsequently, the Government opted for making the lessons for primary and secondary level students available online (via Youtube). This policy presupposes that there is access to internet services all over the country.

According to Government estimation, at the end of March 2020, the total number of internet subscribers has reached 103.253 million while total number of mobile phone subscribers has reached 165.337 million. The numbers do not reveal the digital divide in the country and do not speak about whether the access is equal across different intersections and classificatory distinctions (for instance, sex, socio-economic class). As a result, they mask the actual state of ‘access’ to internet in the country. Among 42 countries across Asia, Europe, the Middle East, Africa, South and Central America, and North America, the internet speed for Bangladeshi users is the poorest. Moreover, none of the mobile operators can ensure threshold internet speed anywhere outside the capital. For students outside the capital, interactive virtual education does not seem very optimistic.

Compliance with the right to education during COVID-19

The International Covenant on Economic, Social and Cultural Rights (ICESCR) requires that the functional educational programs be available, their forms and substances be physically as well as economically accessible, acceptable and adaptable to the changing needs of communities and societies (see, here). The Convention on the Rights of the Child (CRC) requires that education be child-centred, mindful of the ‘best interest of the child’ principle (see, here). The obligation of making education economically accessible implies different things across different levels: whereas for the primary level, education shall be free for all, the obligation to introduce free secondary and higher education is progressive in nature. However, in all the cases, economic accessibility implies affordability for all.  

Against the backdrop of the COVID-19 pandemic, the Committee on Economic, Social and Cultural Rights has urged States to continue with online learning programs in order to mitigate the impact of the closures on the right to education.  Moreover, the Committee also reminded the States of their obligation to take measures to expedite affordable internet services and vital technical equipment for all students particularly those in poorer communities and regions, so that the targeted group can benefit equally from online learning programs. The remote education policy opted for by Bangladesh has not coincided with adequate measures to expedite affordable and threshold internet services across the country.

Additionally, the ICESCR and the CRC provide protection from discrimination in terms of the application of its provisions, both direct and indirect (the CRC calls them overt and hidden forms of discrimination). Bangladesh’s remote education policy may seem to be objective or neutral at face value, touching the lives of all the children across the country. But as noted above, in its application it is disadvantageous to a large number of children who live outside the capital, who belong to marginalised classes or are poor.  This inevitably results in substantive inequality in the education sector.  This may amount to indirect discrimination on the basis of property or in turn socio-economic status, which is a prohibited ground of discrimination under the ICESCR  as well as the CRC.

Domestic enforcement of the right to education in Bangladesh

The ICESCR and CRC are ratified by Bangladesh and there is no reservation from Bangladesh concerning the provisions on education in either instrument. However, as a dualist country, in absence of implementing legislation, the international obligations are circumscribed within the narrow limits of the domestic legal frameworks.

The Bangladesh Constitution does not envisage education as a right but as a principle.  Such a principle, as per the Constitution, is not judicially enforceable. The judicial unenforceability makes the realisation of the right to education subservient to the will of the executive. This enforcement bar is not peculiar to the right to education and it exists with regard to all economic, social and cultural (ESC) rights. Despite the constitutional bar, the judiciary has crafted a way to enforce such rights indirectly: one through the expansion of ‘right to life’ and another through their negative enforcement. In relation to the latter, the judiciary has implied that it cannot interfere when the State fails to perform its positive obligations (of providing the means for realising such rights) but can do so when the State violates its negative obligations (that is, where the State does something which negatives or interrupts the exercise of such rights) (see, here and here). However, in enforcing the right to education, the indirect ESC rights-enforcement routes have not shown any tangible prospect of success- probably because there has always been a lack of clarity as to how an argument establishing interruption in the exercise of right to education could be formulated. At a theoretical level, the judicial approaches for indirect enforcement may perpetuate a division between the positive and negative aspects of obligations concerning the ESC rights, and make the aspects somewhat disjunctive. The current situation proves how inadequate the rights-enforcement framework was inasmuch as it masked the realities of progress underneath the concepts of ‘indirect enforcement’ and ‘progressive realisation’.  

Concluding observations

States that have prioritised the protection and promotion of ESC rights and have invested accordingly, are being more resilient during this pandemic. Over the years, investment by Bangladesh in the education sector has been extremely poor. The expenditure in the education sector  as a percentage of the GDP is the lowest in South Asia, and has declined over the years. The 7th Five Year Plan (2016-2020) of the Government envisaged spending 2.8 percent of GDP in education by the end of the plan period, while UNESCO proposes the figure to be six percent as both a desirable and globally accepted benchmark.

Amid the fears of pandemic, for one-third of students across the country, the looming threat is that they may never return to schools owing mostly to the lack of an integrated plan on the part of the Government. This may, in turn, implicate other human rights: the country has for a long time been dealing with child marriage and child labour, against which education was rightly thought to be a roadblock. However, if the current situation is not tackled, the country may see a surge in the number of child marriages and the number of children involved in labour.

The current measures taken by Bangladesh are not in compliance with the country’s international obligations relating to the right to education. Moreover, the vulnerabilities of the coronavirus-specific measures in the education sector show how grossly inadequate the general rights-enforcement and budgetary frameworks have been. The current crisis unearths how a doubtful national and international commitment towards human rights over a substantial period of time, can account for a devastating impact.