Daily Times

Supreme Court in a judgment has decided to withdraw the ownership of Shaikh Zayed Hospital in Lahore and a number of other hospitals and medical institutions in Karachi from provincial governments. However, giving them back to the federal government will have serious and grave implications for the future running of the federation of Pakistan.

Before the passage of the 18th constitutional amendment in 2010, these institutions were being run by the Federal Government. However, as a consequence of the deletion of the Concurrent Legislative List of the constitution and the resultant considerable enhancement of the powers of the federating units, these institutions were handed over to the provincial governments.

With the Supreme Court’s decision the same has been nullified and the empowerment of the provinces undertaken through 18th amendment has been rolled back.

The consequences of the decision is not confined to the Sheikh Zayed Medical Complex Lahore, Jinnah Postgraduate Medical Center, National Institute of Cardiovascular Diseases, National Institute of Child Health, or the National Museum of Pakistan, Karachi; but will have far reaching consequences and will engulf the whole gamut of division of powers between the federation and provinces.

In its four to one decision the Supreme Court bench headed by the then Chief Justice of Pakistan, Justice Saqib Nisar said that running of hospitals throughout the country is the obligation of the federal government for enforcement of right to life provided in the constitution. This is very dangerous and misplaced interpretation of the constitution and if not challenged will threaten the whole constitutional structure on which Pakistani federation is standing.

The enactment of the 18th constitutional amendment and empowerment of provinces through the same has been harshly criticized by government ministers and others, since the present government came into power, whose election itself was facilitated by some controversial judicial decisions.  Different political parties, particularly PPP and ANP have been warning against what the conspiracies against the 18th amendment.  The decision will give credence to their apprehensions and it will be taken as if the ruling party due to its limited presence in both houses of parliament, lacks the strength to undo the 18th amendment- and that the mindset opposed to the amendment is using other means to undo the same.

It is worth clarification and nobody would know it better than the honourable judges of the court, that the enforcement of the fundamental rights is the responsibility of the State as a whole and not that of the federal government alone. Article 7 of the constitution while defining the state says, “In this Part, unless the context otherwise requires, ‘the State’ means the Federal Government, Parliament, a Provincial Government, a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax.”

It is worth clarification and nobody would know it better than the honourable judges of the court, that the enforcement of the fundamental rights is the responsibility of the State as a whole and not that of the federal government alone

As for the right to life and linking medical facilities to the same is concerned,  article 9 of the constitution providing for the Security of Person says, ” No person shall be deprived of life or liberty save in accordance with law”. This is a negative guarantee which forbids extra judicial murder of citizens or any other person residing in the country. Though a state like ours which boasts to be striving to become a welfare state, should improve health facilities to the citizens especially the marginalized sections of society but no stretch of imagination rights under article 9 cover provision of medical facilities for the people.

Even if we agree with the honourable judges on their interpretation of article 9 and concede that provision of health facilities to citizens is guaranteed under the same even then, as already stated, enforcement of fundamental rights is the responsibility of the whole state and the federal government is just one part of the same and is responsible for only those functions which have been entrusted to it under Part V chapter one of the constitution.

The constitution of the Islamic Republic of Pakistan elaborately divides powers and responsibilities among different organs of states and tiers of government. That division is as sacrosanct as any other article or part of the constitution and no attempt should be made to undo it indirectly through imaginative interpretation of the constitution and law.

If the interpretation of the majority judgment is accepted and federal government is given powers to work in the provinces for the enforcement of “right to life as provided in article 9 in accordance with the Supreme Court’s interpretation of the same through the said judgment’ then before the running and maintenance of hospital the whole policing and law enforcement infrastructure will have to be withdrawn from the provinces and given to the federation.

The 18th amendment was made in line with the spirit of the original document and understandings reached among the framers of the same on future direction of the constitution. The amendment was made after a thorough debate in a joint parliamentary committee, represented by all political parties having representation in parliament. It was passed unanimously and all groups and parties having representation in the parliament voted for it. Thus it represented national consensus. Any amendment in the same can only take place with same consensus. Indirectly chipping the federal structure away will have dangerous consequences.

Article 176 of the constitution says that “The Supreme Court shall consist of a Chief Justice to be known as the Chief Justice of Pakistan and so many other Judges as may be determined by Act of Parliament or, until so determined, as may be fixed by the President”.  In article 82 the constitution mentions ‘quorum’ of Supreme Court.

Though the constitution mentions benches and divisions in relation to High Courts but there is no such provision or allusion to the Supreme Court. Thus the makers of the constitution wanted the Supreme Court to sit and adjudicate as a whole. The constitution of multiple benches of the Supreme Court consisting of one or more judges is alien to the constitution. This practice may be tolerated in day to day affairs but issues pertaining to constitution and its interpretation must be adjudicated by all judges of the court and not benches formed by the Chief Justice which is done at will.

The writer is a freelance columnist

Published in Daily Times, January 26^th 2019.