Post LHC Judgment and Higher Education Governance

Murtaza Noor
“The provincial legislature has the power to set standards i.e. procedures and criteria for selection of the VC, as long as, they are not below the minimum and baseline standards set by the federation,” mentions the verdict announced by a division bench in the Vice Chancellor appointment case at Lahore High Court.nThe bench, comprising of Chief Justice Syed Mansoor Ali Shan and Justice Shujaat Ali Khan, had reserved the judgment on intra-court appeals by the Punjab government and others challenging a single bench decision that struck down appointments of acting VCs at four public sector universities and the process initiated by the provincial higher education department Punjab.
Education is defined as the process of teaching and learning, usually at school, college, or university. Education, therefore, is an extensive and wide-ranging legislative subject, including all tiers of education in a Province including higher education. In Pakistan, only 11 % of universities (20 out of 183) are federally charted universities while the majority of the universities, 89% (163 out of 189) are charted by provincial governments.
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Endorsing the constitutional role of the provinces in education, the Lahore High Court (LHC) in its latest judgment ruled that the provincial government is fully empowered to make rules and appoint vice-chancellors (VCs) of public universities. Accepting the Punjab government’s appeal against an earlier verdict, an LHC division bench headed by Chief Justice Syed Mansoor Ali Shah authorized the provincial government to appoint the vice-chancellors. The court ruled this in its long-awaited judgment on an intra-court appeal against the verdict by a single bench.The 59 pages detailed judgment stated that the provincial legislature has the power to set standards i.e., procedures and criteria for selection of the VC, as long as, they are not below the minimum and baseline standards set by the federation,” said the verdict announced by a division bench consisting of Chief Justice Syed Mansoor Ali Shan and Justice Shujaat Ali Khan in the VCs appointment case.
The division bench stated that the province, under the legislative subject of ‘education’ in the unwritten residuary legislative list, was empowered to develop standards in institutions of higher education for the province; these standards could be higher and more stringent as compared to the federal standards, but they could not be below the federal standards. The ruling said that post 18th constitutional amendment, provincial autonomy and cooperative federalism stands revitalized and must be protected and encouraged. Hence it would be constitutionally unpalatable to limit the self-sufficiency and independence of the Provinces by restricting their ability to determine their educational standards, policy and vision.
The verdict authored by the chief justice added the HEC Ordinance of 2002 set minimum and non-binding guidelines for the appointment of VCs in public universities.  The judgment also questioned the performance of Council of Common Interest (CCI), saying that the role of the council over the years had been disturbingly dormant. The chief justice directed 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. Under the article 154 of the Constitution of Pakistan, the court also directed the HEC as well as, federal government that in the future, the commission would work under the supervision and control of the CCI and any policies or regulations prepared by the commission shall be routed through the CCI and will only be considered to be legally binding, if approved by the CCI.  The division bench directed government/chancellor to proceed with the appointment of the VCs for the four public sector universities in question strictly on the basis of recommendations of the search committee by considering a panel of three people in the case of each university.  According to the LHC ruling , the federation can set standards in institutions of higher education always over the minimum national criteria, as it caters to all public-sector universities in the country .Simultaneously, the province is empowered to develop standards that can be higher and more stringent as compared to the federal standards, but not below the federal standard.
The division bench added that HEC Ordinance does not cast any obligation on the Provincial Government or any provincial public sector university to follow the said guidelines. In other words if the Province or the provincial public sector universities do not follow these guidelines, they are apparently not violating the HEC Ordinance. There is no penal consequence attached to non- observance of the minimum criteria or standards by the Provinces or their public sector universities.
Now, it is the collective responsibility of all tiers of the government and concerned stakeholders to ensure the implementation of this historic judgment.  Being federal country having central and provincial governments, Pakistan also needs to learn from other federal countries’ experiences. As per the QS ranking 2016, among the top five countries with strongest higher education systems in the world, four countries are federations with the effective role of federating units in higher education sector. According to study titled “Post-Secondary Education in 12 Federations” conducted by the Forum of Federation, a Canada-based institute, in most of the federal countries (10 out of 12), primary responsibility for governing, funding of public sector HEIs and approval of new academic programs lie with federating units. In Pakistan, there is positive development in higher education sector as all the four provincial governments are allocating and spending provincial budget over universities. The Punjab government has allocated 17 billion rupees for higher education sector while Khyber Pakhtunkhwa government is investing in higher education through establishment of new technology universities even with foreign collaborations.  The Sindh and Balochistan government have also allocated funds to meet development and recurring expenditure of the universities.
Realizing their responsibilities in a post-18th Amendment scenario, the provincial governments should allocate 25% of total the education budget to the provincially charted universities which are already under the administrative control of provincial governments in order to meet the growing needs in higher education sector. The first and foremost requirement is to follow transparent and merit based mechanisms for the appointment of university heads through independent search committee comprising of reputed academicians. The role of the provincial governments should be facilitative and supportive towards universities through autonomous bodies led by higher education experts. The autonomy of universities needs to be protected and respected. The amendments in respective universities’ acts should be brought in consultation with relevant stakeholders. On the pattern of Punjab government, remaining provincial governments should also prepare roadmaps for strengthening higher education in respective provinces.
Writer is associated with the development and education sector for more than 16 years.
DisclaimerViews expressed in this article are those of the author and Balochistan Voices not necessarily agrees with them.
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