Back and forth: SC overrules SHC in JPMC devolution case

Sindh govt had appealed to SC to reconsider judgment declaring devolution ‘illegal’

KARACHI: The Supreme Court (SC) suspended on Monday the Sindh High Court's (SHC) judgment that had annulled the devolution of the federal public healthcare facilities to the province under the 18th Amendment.

A three-judge bench, headed by Justice Gulzar Ahmed, passed this order while hearing the Sindh government's appeal challenging the SHC's ruling that had declared the devolution of Jinnah Postgraduate Medical Centre (JPMC), National Institute of Cardiovascular Diseases (NICVD), National Institute of Child Health (NICH) and National Museum to the province as unconstitutional.



The bench, which also comprised justices Mushir Alam and Maqbool Baqar, was hearing the case at SC's Karachi Registry. It also issued notices to the employees of the three health facilities to file comments by the next hearing.

Appeal

The provincial government had, through the health secretary, approached the apex court for leave to appeal against the SHC's July 4 judgment. The SHC ruling came during the hearing of a set of petitions filed by JPMC employees challenging the devolution of federal government-run hospitals to the province in the aftermath of the 18th Amendment.

During Monday's proceedings, Sindh advocate-general Barrister Zamir Ghumro said that various departments, offices, organisations and projects of federal ministries that included health, sports, minorities affairs, environment, labour and manpower, food and agriculture and women development were devolved to the provinces in 2011in pursuance of the 18th Amendment to the Constitution.

He argued that the subject of health had never been part of any federal legislative list or concurrent list. The hospitals in questions were devolved to the provincial health department by the then health ministry through a notification issued on June 30, 2011, and subsequently the employees of these institutes were transferred to the Sindh health department under Rule 10-A of the Civil Servants Act, 1973.

Ghumro alleged some employees had crippled and blocked normal and smooth functioning of the hospital. He claimed that the health facilities in question were disrupted and an adverse situation can lead to fatal consequences for patients.

He said that many of the staff members were either retired or leaving the service. "Affairs of the JPMC are only being dealt as a private institute run by the executive director and the joint executive director," he claimed.

Since 1935 till now, health had been a provincial subject, argued Ghumro. Thus, under Article 142-C, the provincial assembly has exclusive power to make laws regarding matters, which were not mentioned in the federal legislative list, he said.

He was of the view that the authors of the 18th Amendment were fully conscious of this constitutional mandate when they transferred the management and control of these institutions to the province. He argued that the conclusion of the SHC bench was not sustainable in the law.

The top provincial lawyer argued SHC lacked jurisdiction to decide the matter, which could be a dispute only between the federation and the provinces under Article 184 of the Constitution, wherein the jurisdiction of every other court including the high court was barred under the Constitution and the matter rested in the exclusive domain of the Supreme Court.

He maintained that the SHC also failed to appreciate that the employees of any institution, including the JPMC, NICVD and NICH, could not invoke the jurisdiction of a high court where a matter could be disputed only between the federation and the provinces.

"The high court failed to appreciate that the devolution of the institutions under 18th Amendment Act, 2010, is protected under Article 239(5) of the Constitution and cannot be called in question by the full court of the High Court of Sindh," he concluded.

Published in The Express Tribune, July 26^th, 2016.