ISLAMABAD  -   Pakistan People’s Party Leader and Former Chairman Senate Raza Rabbani on Thursday stated before the top court that the federal government had been usurping provincial institutions.

Assisting the 5-judge larger bench headed by Chief Justice Mian Saqib Nisar in the case regarding devolution of functions and authorities to the provinces under 18th Amendment, the former Chairman Senate Rabbani also feared about the redundancy of Article 137 of the Constitution.

Article 137 of the Constitution explains the extent of executive authority of the provinces. 

Other members of the bench, which took up the set of appeals on the said matter, are Justice Umar Ata Bandial, Justice Maqbool Baqar, Justice Faisal Arab and Justice Ijazul Ahsan.

The matter regarding devolution of functions and authorities to the provinces under 18th Amendment emanated from the appeals challenging the Sindh High Court (SHC) judgment, wherein devolution of hospitals to the province of Sindh, ruled by PPP, was declared to be unconstitutional and without lawful authority.

These hospitals include Jinnah Post Medical Centre, National Institute of Cardiovascular Diseases and National Institute of Child Health.

In pursuance to 18th Amendment, introduced to the Constitution in 2010, various departments, offices, organisations and projects of various federal ministries were devolved from the federal government to divisions and provinces. These include Ministry of Health, Ministry of Sports, Ministry of Minority Affair, Ministry of Environment, Ministry of Labour and Manpower and Ministry of Women Development.

Health Department was never part of any Federal Legislative List or Concurrent List. Amongst the other institutes of various departments, the Jinnah Post Medical Centre, National Institute of Cardiovascular Diseases and National Institute of Child Health were devolved to Sindh province in 2011.

During the proceedings, the chief justice observed that neither the Parliament nor the committee did debate in-depth on the 18th Amendment, adding that the court was handicapped at the time of its interpretation.

He observed that though the supreme body for legislation is Parliament under the Constitution but the lack of debate on the 18th Amendment caused confusion. He further observed that in all over the world, amendments are debated upon before been passed, citing the example developed democracies and said that Switzerland advertises the amendment for a year for debate.

He questioned how the Parliament could approve the 18th Amendment without any debate.

On the observations made by chief justice on the methodology and mechanism, Rabbani conceded that detail debate was not held but it took 9 months to prepare the draft, adding that ads were given after which suggestions from bars and civil society were received with 981 amendments, which were forwarded to the Parliamentary Committee formed for the purpose.

The chief justice observed that it was laudable but questioned whether the debates were provided to the court at the time of interpretation. The chief justice further told Rabbani that he made observations regarding the interpretation and not for the cause of any aspersion.

“We even did not get wisdom from the debates made on the floor of the house,” the chief justice said.

During the course of hearing, the chief justice observed that if a building was located in a province, it did not mean that it had been transferred to that province, adding that the federal government had not been restrained after the 18th Amendment from building hospitals in the provinces or cities.

“If the provinces fail to provide facilities to the people, the federal government should step in,” he said, adding that how was this possible that the federal government builds hospitals and leaves it at the hands of the provinces to destroy.

Rabbani contended that the JPMC was a federal subject for the reason that at that time Karachi was declared as federal capital area in 1948.

The chief justice asked what if the facility was in Sukkur instead of Karachi. Rabbani responded that it should have been devolved in 1961, adding that the JPMC was already in existence since 1930s and the federal government had not created it. 

The bench enquired regarding the status of WAPDA Hospital and other federal government’s subsidiary organisations’ hospitals in the provinces.

Rabbani responded that these are federal organisations and they can own it for their employees but the point under discussion is about federal and provincial government. “This issue has to be done by the Parliament,” Rabbani emphasised.

However, Justice Ahsan observed that the Parliament had performed its duty and now the court was going to interpret the law.

Rabbani responded that the lists in the Constitution could not be negated.

Counsel representing Government of Sindh Advocate Farooq H. Naek in his contentions maintained that from 1935 up-till now, health had been a provincial subject and it was neither mentioned in the Federal Legislative List nor in the Concurrent List.

It is, therefore, under Article 142-C, the provincial assembly has exclusive power to make laws regarding matters which are not mentioned in the Federal Legislative List.

It is submitted that there is no entry available in the Federal Legislative List relating to the subject of health and hospitals which provides treatment to the public, as such the 18th Amendment is to be seen as a whole particularly Article 270-AA (6) (8) and (9).

Naek contended that the SHC declared that transfer/devolution of JPMC, NICVD, NICH and the National Museum to the province to be unconstitutional, without lawful authority and of no legal effect. The SHC had also ruled that these institutes fall in the federal subject.  

With regard to the devolution of JPMC, NICVD and NICH, Naek contended that health and hospitals had never been either on Federal Legislative Lists or Concurrent List and they only fell within the powers of residuary which is provincial subject.

Naek further contended that these institutes are covered in the item No 16 of 4rth Schedule of Federal Legislative List Part-I, adding that the provincial subject of health could be given restricted meaning and research in medicine or health could be undertaken by federal government under the garb of item No 16 of the Federal Legislative List Part-I.

He further contended that federal government as well as provinces could entrust powers and functions to each other over subjects of their respective jurisdictions under Article 146 and 147 of Constitution.

The chief justice observed that if the federal government establishes a hospital noting increasing ratio of cancer patients, then whether the hospital should be handed over to province. “Geographical location is not relevant,” observed the chief justice.

When Advocate Naek defended his stance, Justice Arab observed that if the province wants to provide health facilities, then the provincial government might establish its own hospitals.

The chief justice questioned whether there is any bar that federal government cannot run a hospital in a province. “It is against the concept of federation,” observed the chief justice while rejecting the argument of Advocate Naek. He further observed, “What is not prohibited is permissible.”

He asked under what law provincial government will claim to hold the management of hospital or school if established by federal government. The matter will again be taken up for hearing today.