ISLAMABAD: The Supreme Court on Monday granted the Higher Education Commission (HEC) leave to appeal and asked the federal government to assist it on a challenge to the Lahore High Court’s April 27 decision empowering the Punjab higher education department to develop its own standards of higher education rather than follow the one set by the commission.

A three-judge Supreme Court bench headed by Chief Justice Mian Saqib Nisar that had taken up the appeal of HEC issued notices to the Punjab Higher Education Commission and the provincial secretary of the higher education department as well as sought assistance from the attorney general since interpretation of constitutional provisions was involved in the matter.

In its order the LHC had held that the province, under the legislative subject of “education” in the unwritten residuary legislative list, was fully empowered to develop standards in institutions of higher education for the province and though these standards can be higher and more stringent as compared to the federal standards, they cannot be below the federal standards.

In its appeal the HEC through its counsel, Raheel Kamran Sheikh, had challenged the high court order before the Supreme Court with a plea to overturn the April 27 high court order since, according to the HEC, it was not sustainable in law.

Govt asked to assist apex court on HEC’s plea challenging LHC decision empowering Punjab education department to develop its own standards of higher education rather than follow one set by commission

In its long order the high court though had conceded that the federation can set standards in institutions of higher education under Entry 12 of Part-II of the Federal Legislative List, the commission can always pass minimum national standards since they cater to all the public sector universities in the country and maintain national unity and federal compact.

Explaining further the high court had stated that the HEC Ordinance, 2002, as it stands today, sets minimum and non-binding guidelines for the appointment of vice chancellors in public sector universities. But the provincial legislature has the power to set standards, procedures and criteria for selection of the vice chancellor, as long as, they are not below the minimum and baseline standards set by the federation.

The LHC had also 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 as against the Constitution and noted that the role of the Council of Common Interests (CCI) over the years had been disturbingly dormant.

The high court 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 in the next six months.

The high court also required the HEC and the federal government that in future, the commission will work under the supervision and control of the CCI and any policies or regulations prepared by the HEC will be routed through it and will only be considered to be legally binding, if approved by the council.

The HEC in its appeal, however, argued that in terms of Article 142(a) of the Constitution, the legislative subject of standards in institutions of higher education falls 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 has been barred to legislate on this subject, the HEC emphasised.

Moreover Entry No. 12 of Part II of the federal legislative list fully complement exclusive role of parliament on the subject since the power of legislature to legislate on the enumerated subjects was unlimited and practically absolute.

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

The high court, the HEC argued in its appeal, has misunderstood and misconstrued the role and power of the CCI and also failed to appreciate that Article 154 of the Constitution essentially restricts 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 places the same under the authority of the CCI and empowers it with supervision and control of the related institutions with ultimate oversight of the parliament.

It does not in any way limit or circumscribes legislative authority of the federation i.e. the 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 is not mandatory for the standards or guidelines prescribed or recommendations made by the HEC under section 10 of the HEC Ordinance, 2002, the appeal contended.

Published in Dawn, October 10th, 2017