Constitutional claim regarding Law 115 of 1994, which regulates the national education law; Obligation of the Colombian State to guarantee the right to education; Fundamental nature of the right to education of minors; Providing free education as an unequivocal obligation which must be immediately enforced with respect to primary education.
The plaintiffs filed a constitutional claim arguing that Law 115 of 1994 did not comply with international human rights standards by allowing for the option to charge fees on primary education (sect. 183). The Court found the law unenforceable, considering that fees may not be applied to official primary education, but only to secondary and higher education levels. The Court also stated that it cannot be assumed that the drafters of the Constitution authorized charging fees at all academic levels, because this would not be in line with international human rights treaties which form a basis for Colombia’s Constitution. Furthermore, charging fees in the primary education level could become a barrier to accessing the education system.
In its review of the case, the Court included a list of the instruments and comments by international human rights treaty bodies establishing Colombia’s obligation to guarantee a compulsory, free and accessible education[1]. According to such international instruments and comments, the State has the unequivocal, immediate obligation to guarantee free primary education, while in the case of secondary and higher level education, the obligation is of a progressive nature. However, the progressive nature applicable to the other two levels does not justify the government’s lack of action. The Court also restated the fundamental nature of the right to education, which applies, according to its own case law, to all persons younger than 18, as well as the hierarchy of children’s rights over the rights of others, as established in the Constitution.
Keywords: Decision C-376/10 of the Colombian Constitutional Court, Education, Rights
[1] Universal Declaration of Human Rights (art. 26), International Covenant of Economic, Social and Cultural Rights (art. 13), Protocol of San Salvador (art. 13), Committee of Economic, Social and Cultural Rights (General Comments 11 and 13), Committee of Economic, Social and Cultural Rights (Comments for Colombia), UN Human Rights Commission, Office of the High Commissioner for Human Rights.
This decision has been communicated to the organizations and academic institutions devoted to ESCR work in Colombia which had submitted civil society presentations before the Constitutional Court, and which will use the decision in its litigation and lobbying efforts.
According to the World Bank, Colombia is the only country in the region without free primary education, which makes this decision regarding the State’s obligation to guarantee free primary education very significant. Furthermore, the Court stated that this obligation is immediately enforceable. Lastly, this decision restates that human rights treaties and comments by bodies regarding economic, social and cultural rights are part of the Colombian legal system and, within it, have a superior standing compared with the remaining regulations.
Center for the Study of Law, Justice and Society (DeJusticia) Colombian Coalition for the Right to Education
