Daily Times

In one of his last few verdicts, outgoing Chief Justice Mian Saqib Nisar presided over a bench that ruled against the transfer of three healthcare institutes in Karachi and one in Lahore to respective provincial governments. These institutions – the Jinnah Postgraduate Medical Centre (JPMC), National Institute of Cardio Vascular Diseases (NICVD) and National Institute of Child Health (NICH) in Karachi and the Shaikh Zayed Hospital in Lahore – were transferred to provincial government in the wake of the 18th constitutional amendment, the idea being that delivery of key social services in healthcare, and education, ought to be a responsibility of the provincial administrations.

In the case of the three institutes in Karachi, the provincial government of Sindh pursued the matter persuasively in court as well as outside. PPP chairman Bilawal Bhutto Zardari also raised the issue in the Parliament.

While a detailed judgement is still awaited, there are ample reasons for a review to be undertaken by the competent judicial authority since this case will go a long way in determining the balance of legislative powers between the federation and the provinces in the healthcare sector. In particular, attention must be paid to the dissenting note of Justice Maqbool Baqar, who has stressed the importance of expanding, rather than curtailing, provincial autonomy in view of the spirit of federalism.

The four members of the bench have endorsed the Sindh High Court’s reasoning that the hospitals fall within the scope of entry 16 of the federal legislative list and, therefore, well within the exclusive federal domain.

The SHC had declared the transfer of these hospitals to the province unconstitutional on the grounds that they had no link with the concurrent list abolished through Article 270AA (8)(9) of the constitution – an article inserted through the 18th Amendment.

The entry 16 in the federal legislative list reads: “Federal agencies and institutes for the following purposes, that is to say, for research, for professional or technical training, or for the promotion of special studies.”

Clearly, the institutions referred to here are those concerned with the tasks of research, technical training, and special studies. While the institutions in question may be performing these tasks, they are also at the forefront of delivery of a whole of crucial healthcare services in Karachi and Lahore. Since service delivery must unequivocally stay with provinces, the SC judgement places an unnecessary burden on provincial administrations and further complicates the already mammoth task of ensuring efficiency and efficacy in healthcare sector.

The 18th amendment is among a very few pleasant developments to have happened in the constitutional history of Pakistan. The need of the hour is to expand its scope for devolution of powers to provinces, wherever possible, rather than to limit advancements that have taken place as a result. It is entirely possible to devise a mechanism through which the research and training components of the institutions in question can be kept with the federal government, while service delivery can stay with provinces. While it may be a rigorous task, the judiciary must trust the legislature here, and refer the matter to the relevant body for any changes needed in statute books. While this is done, it goes without saying that the provinces ought to pay greater attention to healthcare service delivery. By setting higher standards, they will get to strengthen their case in any future dispute of the sort. *

Published in Daily Times, January 22^nd 2019.