ISLAMABAD: Justice Maqbool Baqar of the Supreme Court on Thursday emphasised the need for interpreting the Constitution in a way to preserve the provincial autonomy than to dilute the same.

“The very spirit and essence of a federal constitution is the distribution of legislative powers between the federation and the provinces,” said Justice Baqar in his dissenting note on a case relating to the ownership of three major hospitals in Karachi after the devolution of the health sector under the 18th Constitution Amendment.

The Sindh government as well as the health institutions had approached the Supreme Court with a claim that since the subject of health has been devolved to the provinces under the 18th Amendment, the management of the Jinnah Postgraduate Medical Centre, National Institute of Cardio Vascular Diseases and National Institute of Child Health also vests with the Sindh government.

A five-judge Supreme Court bench headed by Chief Justice Mian Saqib Nisar, while dismissing the appeals of the Sindh government on Wednesday, held that the ownership of three hospitals as well as the National Museum of Pakistan in Karachi had been handed over to the Sindh government ‘illegally’ and ordered that their management be transferred to the federal government within 90 days.

The court also ordered transferring the ownership of the Sheikh Zayed Hospital, Lahore, to the federal government, with an observation that the Centre reserves the right to build and run hospitals in any province.

The majority ruling, however, allows the Sindh government to request the court for an extension if the process of ownership’s transfer was not completed in 90 days. It asked the federal government to reimburse the past years’ expenses of the hospitals and the museum borne by it.

Justice Maqbool Baqar writes dissenting note on the case about ownership of three hospitals and museum in Karachi

In his dissenting note, Justice Baqar stated that the subject of public health and public hospitals throughout “our legislative history remained exclusively with the provinces”. Sometime by enumeration in the provincial legislative list, and at times by way of residuary powers, they have never been with the federation.

Under the 1973 Constitution, which now, as a consequence of the 18th Amendment, contains only one legislative list — the federal legislative list — also confers such powers and authority on the provinces, as the same again do not find place on the federal list. 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 parliament from legislating on the subjects not mentioned in the federal legislative list.

Indeed the federal legislative list through entry No. 37 mentions “works, lands and buildings”, vested in, or in possession of the federal government for the “purposes” of 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, and as noted earlier, public health and public hospitals exclusively being provincial subjects, 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, which on the commencement of the constitution, vested in the federal government, shall, in case they, on the commencing day, were to be used for the “purposes” of a provincial government, shall become properties of the said provincial government.

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 are available in all of our earlier constitutions,” Justice Baqar said, adding: “Our constitution prescribes well laid down role and limits of every organ of the State.”

Published in Dawn, January 18th, 2019