ISLAMABAD: The Higher Education Commission (HEC) requested the Supreme Court on Tuesday to reverse the Lahore High Court’s April 27 order empowering the Punjab higher education department to develop its own standards of higher education instead of following those set by the commission.

“The province, under the legislative subject of ‘education’ in the unwritten residuary legislative list, is fully empowered to develop standards in institutions of higher education for the province; these standards can be higher and more stringent as compared to the federal standards, but they cannot be below the federal standards,” a division bench of the LHC had held in its detailed judgement.

Challenging the high court’s order, the HEC through its counsel Advocate Raheel Kamran Sheikh argued before the Supreme Court that it was not sustainable in law.

The Punjab Higher Education Commission, the higher education department secretary and others have been made respondents in the petition.

The high court had in its order conceded that the federation could set standards in the institutions of higher education under Entry 12 of Part-II of the Federal Legislative List, but said the commission could always pass minimum national standards since they catered to all public sector universities in the country and maintained national unity and federal compact.

The LHC explained that the HEC Ordinance 2002, as it stood today, set minimum and non-binding guidelines for the appointment of vice chancellors in public sector universities, but the provincial legislature had the power to set standards, procedures and criteria for selection of the vice chancellor as long as they were not below the minimum and baseline standards set by the federation.

The high court held that Section 14(2 and 4) of the University of the Punjab Act, 1973, and the corresponding provisions in the statutes of other public sector universities were against the Constitution and noted that the role of the Council of Common Interests (CCI) over the years had been disturbingly dormant.

It had ordered the CCI to review all the standards in institutions of higher education framed by the HEC in order to make them constitutionally compliant over the next six months.

In future, the verdict said, the HEC would work under the supervision and control of the CCI and any policies or regulations prepared by the commission would be routed through the council and would only be considered to be legally binding if approved by the CCI.

However, the HEC in its appeal argued that in terms of Article 142(a) of the Constitution, the legislative subject of standards in institutions of higher education fell within the exclusive power of the federal legislature being part of Entry 12 of Part-II of the Federal Legislative List. In other words, the province had been barred from legislating on this subject, it said.

Moreover, it added, Entry 12 of Part-II of the list fully complemented the exclusive role of parliament on the subject since the power of the assembly to legislate on the enumerated subjects was unlimited and practically absolute.

Besides, it said, after the 18th constitutional amendment the word “concurrent” had been deleted from Articles 142, 143, 144, 149 and 154, along with erstwhile concurrent list, adding that the only place where legislative concurrence still found expression within the Constitution is Article 142 (b) wherein framers of the 18th amendment had retained three subjects to be shared between parliament and the provincial assembly and those too had been made subject to the limitations as specified in Article 143 of the Constitution.

The high court, the HEC argued in its appeal, had misunderstood and misconstrued the role and power of the CCI and also failed to appreciate that Article 154 of the Constitution essentially restricted executive authority of the federation under Article 97 to formulate and regulate policies in relation to the matters in Part-II of the Federal Legislative List and placed the same under the authority of the CCI and empowered it with supervision and control of the related institutions with ultimate oversight of parliament.

“It does not in any way limit or circumscribes legislative authority of the federation i.e. parliament under Article 142 (a) of the Constitution to legislate on subjects enumerated in Part-II of the Federal Legislative List,” the HEC said.

Thus the approval of the CCI was not mandatory for standards or guidelines prescribed or recommendations made by the HEC under Section 10 of the HEC Ordinance 2002, the appeal contended.

Published in Dawn, July 5th, 2017