Supreme Court's effort should be to preserve provincial autonomy: Justice Baqar

Top court judge dissents the majority verdict against the Sindh govt's claim about the ownership of three hospitals


Hasnaat Malik January 18, 2019
Supreme Court judge Justice Maqbool Baqar. PHOTO: RASHID AJMERI/FILE

ISLAMABAD: Supreme Court's Justice Maqbool Baqar said on Friday that in order to maintain and preserve the federal nature of the Constitution, the apex court's effort should be to interpret constitutional provisions so as to preserve the provincial autonomy rather than to dilute it.

Justice Baqar, who belongs to the province of Sindh, dissented the majority verdict against the Sindh government's claim about the ownership of three hospitals after the passage of the 18th Amendment.

He also authored a three-page note stating that he went through the majority's order, but have not been able to persuade himself to concur with it.

The order says that Pakistan is a federal republic and its constitution has conferred certain enumerated powers on the federal government and the residuary powers on the provinces. The very spirit and essence of the Constitution is the distribution of legislative powers between the federation and the provinces.

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Throughout our legislative history, the subject of public health and public hospitals has remained exclusively with the provinces, sometime by enumeration in the provincial legislative list, and at times by way of residuary powers but never with the federation.

Under the 1973 Constitution also, which now, as a consequence of the 18th Constitutional Amendment, contains only one legislative list, being federal legislative list, also confers such powers and authority on the provinces, as the same again do not find place in the federal list, and therefore the subjects of public health and public hospitals fall within the legislative competence and executive authority of the provinces only.

"The federal legislature undoubtedly lacks legislative competence and executive authority in relation to the said subjects. Article 142(c) clearly prohibits the parliament from legislating on the subjects not mentioned in the Federal legislative list"

The order further states that the Federal Legislative List entry 37 mentions "works, lands and buildings", vested in or in possession of federal government for the "purposes" of the Federation as federal subjects, however, such property and assets, as is obvious from the language of the said entry itself, should be catering for federal purposes and not for those of the provinces.

As noted earlier, due to public health and public hospital exclusively being provincial subjects, hence any of their facility/asset cannot be deemed as for federal "purposes" and can by no stretch of imagination be treated as federal subjects.

The relevance and significance of the "purpose" attributed to any property and/or asset is evident from the provisions of Article 274 of the present constitution, which provides that all properties and assets vested in the federal government on the commencement of the constitution, shall become properties of a provincial government in case they were to be used for the "purposes" of a provincial government on the commencing day.

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From the reading of entry 37, and Article 274, it becomes abundantly clear that for vesting, even of properties and assets, the "purpose" catered for by such properties and assets is crucially relevant. It may be significant to note here that articles similar to Article 274 of the Constitution of 1973, are also available in all of the earlier constitutions.

Justice Baqar says that constitution prescribes well laid down role and limits of every organ of the State. Evidently, Article 142(c) expressly curtails the limits of the federal legislature/government, which needs to be respected. “In order to maintain and preserve the federal nature of our constitution, our effort should be to interpret the constitutional provisions so as to preserve the provincial autonomy rather than to dilute the same," he added.

The five judge larger bench headed by Chief Justice of Pakistan Mian Saqib Nisar and comprising of Justice Umar Ata Bandial, Justice Maqbool Baqar, Justice Faisal Arab and Justice Ijaz ul Ahsan held a hearing on matters related to the devolution of federal hospitals to the provinces after the passage of the 18th Constitutional Amendment.

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