18th Amendment should have been debated: CJP
While hearing a case regarding a controversy between the federal and Sindh governments over the ownership of three major hospitals in Karachi, the CJP observed that parliament was the supreme body to make laws and amend them. But, he added, it needed to debate laws before passing them.
The Sindh government approached the Supreme Court with a claim that since the subject of health had been devolved to provinces under the 18th Amendment, the management of the hospitals namely the Jinnah Postgraduate Medical College (JPMC), National Institute of Cardio Vascular Diseases (NICVD) and National Institute of Child Health (NICH) should rest with it.
Justice Nisar observes everything was kept under wraps when amendment was being drafted
A five-judge SC bench headed by CJP Nisar took up a set of appeals by the Sindh government against the July 4, 2016 verdict of the Sindh High Court, declaring that these institutions fell within the scope of the Entry 16 of the federal legislative list and, therefore, within the exclusive federal domain.
The Entry 16 of the federal legislative list deals with the federal agencies and institutes for the purposes of research or for the professional or technical training or for the promotion of special studies.
“The JPMC and other health institutions should have been devolved in 1961 when Karachi ceased to be the capital city,” argued Mian Raza Rabbani, former Senate chairman who represented the NICVD before the apex court. He said this was a constitutional wrong and that the federal government had perpetuated to usurp these three institutions.
“Did the province ever raise protest or objection to this?” Justice Ijaz-ul-Ahsan inquired.
Mr Rabbani, however, explained that it was wrong to assume that the federal government created the JPMC. Rather, he added, the institution was in existence when Karachi was declared the capital city in 1948.
CJP Nisar, however, asked the counsel to cite any bar which stopped the federal government from establishing any institution related to the health sector.
The CJP said he was not trying to cast aspersions on the intention of parliament for passing the 18th Amendment, but it was difficult for the court to interpret the amendment in the absence of parliamentary debate on it.
He said everything was kept under wraps at the time the 18th Amendment was being drafted. In developed democracies advertisements were issued to solicit opinions of all stakeholders a year before any constitutional amendment, he added.
Mr Rabbani conceded that no in-depth debate was held in both houses of parliament on the 18th Amendment. But, he added, a special committee of parliament took nine months to finalise its draft. Furthermore, he said, advertisements were published in the media to solicit suggestions and as a result the committee received 981 recommendations.
Earlier, Farooq H. Naek who represented the Sindh government stated that the province had challenged the high court verdict in which it was declared that the transfer of these institutions to the province was unconstitutional because these have no relationship with the concurrent list in view of Article 270AA (8)(9) of the Constitution — an article which was inserted through the 18th Amendment to omit the concurrent list.
The counsel argued that health or hospitals were never been a federal subject, rather they always remained within the residual powers of the provincial governments.
Thus, the devolution of these hospitals never took place under Article 270AA of the constitution, adding that after the 18th Amendment the Ministry of Health ceased to exist and all its departments were later devolved to the provinces. The subject of health and hospitals had always been the provincial issue, the counsel contended.
During the hearing, the CJP repeatedly asked would all institutions, including those the federal government was planning to set up in provinces, stand devolve automatically.
Let the federal government incur the expenses of these hospitals, said Justice Faisal Arab, adding that if the provinces wanted more hospital they could establish them from their own resources.
Advocate General Sindh Salman Talibuddin argued that they were hospitals and not federal government agencies and, therefore, they should come within the purview of the provincial government.
The Sindh government believes that if the JPMC was handed over to the federal control, the attached Jinnah Sindh Medical University (JSMU) will remain under the provincial control and may lose its affiliation with JPMC.
If JPMC is no longer the teaching hospital, then the university will be de-recognised by PMDC as a consequence the JSMU which has 1,750 students enrolled currently will shut down.
The JSMU has 10 affiliated colleges in Karachi with a total enrolment of above 7,000 medical and dental students from Karachi and other parts of Sindh. It will be derecognised, as per PMDC regulation.
The case will again be taken up on Friday.
Published in Dawn, January 4th, 2019