Freedom of association in private schools should not be impinged
In 2009, the government of Bangladesh began to enlist schools for the Monthly Pay Order (MPO) scheme. MPO-enlisted schools receive teachers’ salaries from the coffers of the state.
The government also enacted a new regulation for secondary and higher secondary schools in 2009. The MPO scheme and the 2009 regulation apply largely to the Bengali-medium education sector.
The MPO scheme may be critically viewed as a form of nationalization. Tax-payers’ money is being used to pay for the salaries of teachers in MPO-enlisted private schools.
The history of nationalization in Bangladesh and most countries is one of failure and incompetence. Nationalization also opens the door to undue political interference.
Private schools are used as voting centers during a general election. Nationalization of private schools can cause voting centers to become politicized and partisan.
The 2009 regulation has a controversial provision which undermines the autonomy of private schools.
Under the 2009 regulation, rule 11(C) can arbitrarily bar a person seeking election to the governing body of a private school. This is because rule 11(C) states that a person who is deemed to have acted against the interests and reputation of a private school can be barred from seeking election.
The controversial provision has recently been challenged by teachers in the High Court.
Rule 11(C) throws up questions of vagueness and natural justice. To start with, the rule is vague as to what constitutes the interests and reputation of an institution. In common law jurisdictions, the doctrine of vagueness can nullify legislation due to un-enforceability, un-reasonableness, and lack of specificity.
The Latin principles of natural justice are audi alteram partem (to hear the other side) and nemo judex in causa sua (no man shall be a judge in his own case). Rule 11(C) threatens the principles of natural justice. It is not complemented by a reasonable adjudicative procedure and is therefore outside the scope of due process. It opens up the prospect of arbitrary misuse of power.
The ILO Convention concerning Discrimination in Respect of Employment and Occupation, 1958 prohibits discrimination in employment and occupation.
It defines discrimination as “any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.”
Article 38 of the Constitution of Bangladesh espouses freedom of association. The formation of associations or unions may be subject to reasonable restrictions. Rule 11(C) of the 2009 regulation cannot be deemed reasonable because it is vague and undermines natural justice.
Elections for the governing body are also overseen by the government’s education board. The mother law of the 2009 regulation is the Intermediate and Secondary Education Ordinance, 1961.
Under the mother law, the powers of the state education board in relation to a governing body is to arbitrate disputes between teachers and management. It does not explicitly provide the power to conduct elections for a governing body in a private school.
In the United Kingdom, the statutory guidance for constituting governing bodies in local government-funded schools has clearly defined grounds for disqualifying nominees.
Such grounds are absent in Bangladesh, where the 2009 regulation rather perpetuates arbitrariness. If schools are to receive funding from the public exchequer, there should be fair and reasonable regulation.
Freedom of association in private schools should not be impinged. The ILO/UNESCO recommendation concerning the Status of Teachers (1966) calls for safeguards for teachers and recourse to a competent authority for appeals. The pillars of a democratic country, be it the judiciary or the media, should uphold genuine freedom of association and autonomy in private schools.
Umran Chowdhury works in the legal field.