Supreme Court of Pakistan. PHOTO: AFP
ISLAMABAD: The top court has declined veteran parliamentarian Raza Rabbani’s plea to constitute a full court (17 judges) to hear the legal questions raised by the judges in the matter related to the devolution of federal hospitals to the provinces after the passage of the 18th Constitutional Amendment.
Rabbani appeared before a five-judge larger bench, headed by Chief Justice of Pakistan Mian Saqib Nisar and comprising Justice Umar Ata Bandial, Justice Maqbool Baqar, Justice Faisal Arab and Justice Ijazul Ahsan, adjudicating the issue that under what “legal instrument” federal hospitals could be devolved to the provinces after the 18th Amendment.
Currently, three judges are from Punjab and two from Sindh.
National Institute of Cardio Vascular Diseases (NICVD) counsel Raza Rabbani contended that the bench raised several questions during Thursday’s hearing; therefore, it would be appropriate to form a full court in this matter.
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However, a member of the bench, Justice Ijazul Ahsan, remarked that the court was not examining the legality of the 18th Amendment, but it was also adjudicating the matter related to the devolution of few federal hospitals in the province.
The court was hearing an appeal of the Sindh government against a 2016 Sindh High Court ruling, which declared that the hospitals such as Jinnah Postgraduate Medical Centre (JPMC), NICVD and National Institute of Child Health (NICH) could not be devolved.
Later on Friday, Rabbani argued that if the federal government regulated the hospital in a province Article 137 of the Constitution would become redundant.
He said, “It is a lego-politico matter; therefore, the court should not pass any judgment as the small provinces have reached the present situation after making much efforts.”
The chief justice remarked, “It is not lego-politico, but a simple legal question. We, in the 18th Amendment case, held that it is a valid amendment.”
The chief justice stopped Rabbani from going into debate on small or big province.
Rabbani stated that the question “is whether the hospital can be constructed and run by the federal government”.
He argued that with the collective reading of Articles 97, 137 and 142(c) of the Constitution it emerges that it is legislative competence, which determines the executive competence.
He said if the federal government begins to trespass into the constitutional domain of provinces on the basis of perception it can do better than the federal scheme of the 1973 Constitution, which is parliamentary structure and provincial autonomy will go to the winds.
It would then be better to amend the Constitution and introduce a Presidential and unitary form of government so that at least the sanctity of the Constitution could be maintained.
Rabbani contended that according to Article 137 of the Constitution the legislative competence of hospitals and health is with the province; therefore, the executive competence will also be with the province.
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“The intention of the legislature in keeping hospitals and health with the province is evident from the Constitution of 1962, wherein other lists were dropped except for the State List and deliberately hospitals and health were made residuary subjects,” he added.
The counsel stated that similarly in the 1973 Constitution and in the 18th Amendment where a class of hospitals was to be given to the federal government it was mentioned in the Entry No 19 and in the Federal Legislative List Part. Therefore, if the intention was to give JPMC to the federation then it could have been added in the said entry.
During the hearing, the CJP asked whether he wanted poor people be left at the mercy of provincial governments.
Later, the bench while exercising its jurisdiction under Article 184 (1) of the Constitution issued notice to federal and Punjab governments to examine the legal status of Sheikh Zayed Hospital, Lahore. The hearing of the case was adjourned till Monday.
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