ISLAMABAD: The Supreme Court on Wednesday dismissed a set of appeals, including one moved by the Sindh government, claiming the ownership of three major hospitals in Karachi in the wake of devolution of the health sector under the 18th Amendment. Therefore, according to the decision, the control of the three hospitals will continue to remain with the federal government.
The operating part of the order was read out by Chief Justice Mian Saqib Nisar during the hearing of a separate case, simply dismissing the appeals. The reasons behind the decision will be recorded in a detailed judgement later.
The Sindh government and the health institutions had approached the court with a claim that since the subject of health had been devolved to the provinces under the 18th Amendment, the management of the Jinnah Postgraduate Medical Centre (JPMC), National Institute of Cardio Vascular Diseases (NICVD) and National Institute of Child Health (NICH) also vested with the Sindh government.
Control of JPMC, NICVD, NICH will remain with Centre, says court order
A five-judge bench headed by the chief justice had taken the appeals against the July 4, 2016 Sindh High Court (SHC) decision that the hospitals fell within the scope of entry 16 of the federal legislative list and therefore within the exclusive federal domain.
Earlier the SHC had declared the transfer of the hospitals to the province unconstitutional on the grounds that they had no link with the concurrent list in view of Article 270AA (8)(9) of the constitution — an article inserted in the constitution through the 18th Amendment to omit the concurrent list.
But the Sindh government argued that the subject of health and hospitals had never been a federal subject rather they always fell within the residual powers of provincial governments.
Thus the devolution of the hospitals never took place under Article 270AA of the constitution, the provincial government contended, adding that after the 18th Amendment the federal ministry of health ceased to exist and all institutions run by it had been devolved to the province. Thus the subject of health and hospitals were always the provincial issue, the Sindh government argued.
At a previous hearing, CJP Nisar had said it was difficult for the court to interpret the 18th Amendment in the absence of parliamentary debate on it. He said everything was kept under wraps at the time the 18th Amendment was being drafted. In developed democracies, advertisements were issued to solicit opinions of all stakeholders a year before any constitutional amendment, he added.
Mian Raza Rabbani, former Senate chairman who represented the NICVD before the apex court, conceded that no in-depth debate was held in both houses of parliament on the 18th Amendment. But, he added, a special committee of parliament took nine months to finalise its draft. Furthermore, he said, advertisements were published in the media to solicit suggestions and as a result the committee had received 981 recommendations.
In response to a question about the Supreme Court verdict, Sindh Chief Minister Syed Murad Ali Shah told Dawn that since he had not yet received the order, he was not in a position to make any comment. He would give his reaction to the verdict after reviewing it, he added.
Published in Dawn, January 17th, 2019