Courts and devolution debate

A decade-long battle between the Sindh government and the Centre for the ownership of three prime hospitals in Karachi came to an end on Wednesday with the Supreme Court ruling that Islamabad will continue to enjoy the administrative, operational and functional control of the three health facilities. It was one of the many cases that are subject to litigation in superior courts across the country, falling out of the administrative and quasi-constitutional complications in the wake of the hurriedly-drawn and ill-conceived 18^th amendment. According to some experts, the 18^th amendment not only added to the confusion on already not-so-clear lines of relationship between the federation and the provinces, it had the most devastating implications for social sectors, especially health and education. Even the present case relating to the Jinnah Post-Graduate Medical Centre (JPMC), the National Institute of Cardiovascular Diseases (NICVD), and the National Institute of Child Health (NICH) went through many twists and turns while originating at the Sindh High Court in 2011 and coming to an end at the apex court in 2019.

The SHC in its order of July 4, 2016, had declared that “the transfer/devolution of JPMC, NICVD, NICH and the National Museum to the province is declared to be unconstitutional, without lawful authority and of no legal effect.” And taking up a Sindh government appeal, the Supreme Court upheld the high court judgment that had annulled the devolution of health facilities and national museum to the provinces on July 24, 2016. The learned judges remarked that “the high court failed to appreciate that the devolution of the institutions under 18^th 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.” However, the top court’s short order of Wednesday, rejecting appeals of the Sindh government, takes a position altogether different from the one taken in the July 24, 2016 judgment. The reasons behind the ruling are likely to be recorded in the detailed order later. But it is hoped that the detailed judgment will cover all the complications of the 18^th amendment in social sectors. 

Published in The Express Tribune, January 17^th, 2019.

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