In a petition moved under Article 199 of the Constitution of the Islamic Republic of Pakistan, Professor Dr Attaur Rehman and Marvi Memon have requested the high court to declare Sindh Higher Education Commission Act 2013 as unlawful and unconstitutional. The petition also demands the court to declare any Higher Education Commission formed or liable to be formed under the Sindh Higher Education Commission Act 2013 as illegal, void and all orders, notifications, commands, direction or any function thus exercised as void as well.
It asks Sindh High Court to declare that higher education is the exclusive domain of the Federal Legislature and neither Provincial legislature nor the provincial government can cause any law to be promulgated which is covered by the Fourth Schedule of the Constitution of the Islamic Republic of Pakistan.
The petition acquired by The News also demands the court to grant an injunction against the rovincial government from acting in any manner on the Sindh Higher Education Commission Act 2013, suspend the operation of the Sindh Higher Education Act 2013 and declare that any action taken or done contrary to the Higher Education Commission Ordinance 2002 and the Constitution by the Respondents 1 to 4 are void and are liable to be undone immediately.
In a quite move, the Sindh Assembly passed a new law last week to make the federal Higher Education Commission totally irrelevant in relation to the Sindh province by setting up its own provincial HEC that has been given all the powers, including the authority to verify degrees awarded by any institution in the world.
The new legislation, approved by the acting governor, has challenged the authority of the HEC which has been at the receiving end from the federal and provincial governments and parliament following its courageous stance over the issue of verification of degrees of MPs since 2010.
The 'Original Constitutional Jurisdiction' says that HEC is an autonomous organization formed in the year 2002 by virtue of Higher Education Commission Ordinance, 2002, repealing the
University Grants Commission Act, 1974. It mentions that after the 18th Amendment, the Concurrent List was abolished and the matters which were to remain with the Federal Legislation either continued to remain in the said List therefore the current powers and functions of the HEC, and includes higher education and research are federal subjects controlled by a valid law duly legislated.
The petition mentions that for national integration and prosperity, it is essential that HEC must continue to perform its functions which it has successfully done so far in the last 8 years. It alleges that provincial government has decided to destroy the HEC by promulgating the said Act terming it mala fide and farcical. "The major functions of the HEC are being assigned to the Sindh HEC, in a manner that there will be no cohesion in higher education and will be done independently by separate agencies, which is contrary to the Constitution and the HEC Ordinance 2002," says the document.
The petition submits that initially the Federal Government contrary, to law distributed and divided the functions amongst various federal ministries. "However, when the Federal Government could not proceed in this mala fide exercise due to the timely intervention of Supreme Court, the province of Sindh has now attempted to bypass the situation and usurp the powers of the HEC by promulgating the said law of 2013," says Dr Atta's petition.
The petition terms the new law a move to avoid the Higher Education Commission and submits that the verification of degrees has been ordered by the Election Commission, and that the situation is that the Provincial Commission for Education will now be able to direct the Universities in that regards. "The independent Higher Education Commission would be compromised, by unlawful and unconstitutional means, on account of the Promulgation of the said Act of 2013," it says pointing out that the provincial government has no plans and no capability to deal with these programmes outside HEC.
The petition says that the provincial government had no authority to act contrary to the rights contained in law and the Constitution and destroy the fundamental rights of the citizens of Pakistan in eliminating the role of the HEC to suit its purposes and makes it clear that no law can be promulgated by a province the subject of which is contained in the Federal Consolidated List, especially after the deletion and removal of the Concurrent List in the Fourth Schedule of the Constitution of the Islamic Republic of Pakistan;
Professor Dr Attaur Rehman said intentions of provincial government looked mala fide. "The reason I understand is that a big majority of fake degree holders belong to Sindh. There was around 100 such degree issued by the Sindh University alone. They are trying to find an easy way for politicians so that they can contest the next elections."
Dr Atta said in most federations around the world, higher education is a federal subject. "UK has a Minister of Universities and Science. Malaysia, Indonesia, Egypt, South Korea, UAE etc, all have Ministers of Higher Education. Education is a Federal Subject in China as well."
He said that by doing that, the Sindh government is going against the ideology of Zulfikar Ali Bhutto who established University Grants Commission as a federal subject. "Sindh Higher Education Commission Act 2013 is totally against the Supreme Court decision of April 2011 which declares HEC a federal function and says that only National Assembly, after consultation with the Council of Common Interests, can change the status of commission.
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