Follies of the righteous by Babar Sattar Saturday, April 16, 2011

The writer is a lawyer based in Islamabad.

The Higher Education Commission seems to have fallen victim to devolutionary righteousness. The probity of Senator Raza Rabbani is indisputable. But to err is human. It is imperative to apply constitutional principles across the board, and the HEC is no holy cow. Pakistan is a federation and giving effect to the concept of provincial autonomy is vital for the future of democracy. But does the principle of provincial autonomy and devolution, as articulated by the Constitution, require the HEC to be partially devolved and partially disbanded?

Even if the reorganisation of the HEC is not mandated by the Constitution, would redistribution of its authority to multiple authorities within the centre and the provinces promote the cause of provincial autonomy and higher education? And in the event that the demolition of the HEC is not legally required, would it qualify as a sound policy choice?

The first question is whether the post-18th Amendment Constitution requires the HEC to be devolved to provinces. And the answer is no. Let us quickly revisit the Constitution’s legislative scheme and requirements related to devolution. The parliament at the centre is only allowed to legislate in relation to items explicitly included in the federal legislative list, and in consultation with the Council of Common Interests when it comes to matters listed in Part II of this list.

All residuary powers, including those in relation to items included in the erstwhile concurrent legislative list (which could be legislated upon by the parliament and the provincial assemblies prior to the 18th Amendment), fall within the exclusive domain of provinces. But legislative subjects do not exist in isolated compartments. Despite the abolition of the concurrent list, the centre and the provinces still retain overlapping legislative competence in innumerable matters including higher education.

Article 270AA introduced by the 18th Amended prescribes transitional arrangements to strike the right balance between continuity and change. It states that all laws in force at the time of the 18th Amendment will remain in force till amended by the competent legislative authority and the federal government will constitute an Implementation Commission to shepherd the devolution process. This means that only a provincial assembly (to the extent of its province) can amend laws related to items that were in the erstwhile concurrent list and stand devolved to the provinces after the 18th Amendment. Meanwhile, the Implementation Commission is to oversee devolution of government ministries and departments that manage responsibilities that have now fallen within the exclusive scope of provinces.

So if parliament after the 18th Amendment were no longer competent to touch the Higher Education Commission Ordinance, 2002, because its authority to do so has been transferred to the provinces through abolition of the concurrent list, the HEC would need to be devolved. But the federal legislative list, post-18th Amendment, includes entries that exhaustively cover the scope of the HEC’s authority.

Part I covers implementation, educational and cultural pacts and agreements with other countries (Item 3), federal agencies and institutes for research, professional or technical training, or promotion of special studies (Item 16), and education in respect of Pakistanis in foreign countries and foreigners in Pakistan (Item 17). And Part II includes, national planning and national economic coordination including planning and coordination of scientific and technical research (item 7), and standards in institutions for higher education and research, scientific and technical institutions (item 12).

Item 38 of the erstwhile concurrent list included ‘curriculum, syllabus, planning, policy, centres of excellence and standards of education’, which now fall within the domain of provinces. But simultaneously through the 18th Amendment two items have been added to Part II of the Federal Legislative List to confer on the federation and the Council of Common Interests the shared authority to oversee planning and coordination of research and standards in institutions of higher education. Given that entries within the Federal Legislative List directly endorse all the powers and functions vested in the HEC under Section 10 of its Ordinance, the HEC remains a legitimate federal authority under the post-18th Amendment Constitution.

Whether or not provinces should have exclusive control over higher education is a separate policy question. The point being made is that the 18th Amendment has not given birth to a legal or constitutional requirement to devolve the HEC. As there is overlap of legislative competence in the area of higher education, the provinces are also not barred from creating their own higher education commissions that approve charters of provincial universities and set standards higher than those prescribed by the HEC. But such commissions will be new institutions and not successors of the HEC. If the HEC Ordinance has to be amended or repealed it is still parliament (and not provincial assemblies) that is the authority competent to do so.

Even advocates of the HEC’s devolution acknowledge that the authority to set standards in institutions of higher education and oversee research remains a federal power and hence the suggestion that the HEC will be replaced by another federal commission. But there are problems with this design.

One, it does absolutely nothing to promote financial autonomy of provinces or the cause of higher education. Even if the fiscal powers of the HEC are abolished under the garb of devolution, it doesn’t help the provinces for the HEC doesn’t generate any revenue of its own. The source of its funding is grants from the federal government and foreign partners. So even if provincial commissions can be the successors-in-interest of the HEC, who will fund these commissions on an on-going basis other than provincial governments through their existing budgets? Foreign grants in the realm of education will remain a federal subject under Part I of the federal legislative list. With no new sources of revenue and the abolition of the HEC and the federal government’s responsibility to fund higher education, provinces will be footing the bill of higher education from their share of the NFC award.

Two, deconstructing an autonomous HEC and distributing its disjointed components across the spectrum of federal ministries would actually be against the spirit of the 18th Amendment. Given that Part II of the Federal Legislative List covers the HEC’s primary functions (setting minimum standards for higher education and coordinating research), Article 154 of the Constitution requires the Council of Common Interests to formulate and regulate policy in relation to these functions and exercise supervision and control over the institution implementing such policy. And if there is to be an autonomous statutory body to deal with some components of higher education that the federal government and the CCI will monitor jointly, why tear away other components such as authenticating degrees, facilitating students in foreign countries, and coordinating foreign grants and stick them under the cabinet division, the foreign ministry and the economic affairs division respectively?

Finally, demolishing the HEC and distributing its parts among a diverse set of federal ministries is bad policy. Granted the HEC has been the subject of genuine criticism. But critics have questioned the subjective choices made by this body (choice of projects, speed of implementation, mechanisms employed to match performance of academics with career progression and imprudent use of resources) and the claims of its accomplishments.

Even its harshest critics have not argued that the functions being performed by the HEC do not belong together or that the HEC as a public authority is guilty of corruption or malfeasance. Now that the institution is to be placed under the control of the CCI, let us tweak the system of checks and balances to supervise the HEC better and enhance its performance. The HEC is not broken yet. Let us address its weaknesses and build on its successes. There is no need to reinvent the wheel.


Source :

No comments:

Post a Comment