ISLAMABAD: The Supreme Court held on Thursday that the transfer of three major Karachi hospitals after the devolution of health sector under the 18th Amendment from the federal government to the province was unconstitutional.

A detailed judgement, authored by Justice Ijaz-ul-Ahsan, said these institutions did not fall within the Concurrent Legislative List as required by Clause (8), read with Clause (9) of Article 270AA of the Constitution.

In January, a five-judge Supreme Court bench, headed by former chief justice Mian Saqib Nisar, had dismissed the Sindh government’s appeals by holding that the ownership of the three hospitals, as well as the National Museum of Pakistan (NMP) in Karachi, had been handed over to the Sindh government illegally and ordered that the management of the hospitals and the museum be transferred to the federal government.

The Sindh government and the three hospitals had approached the Supreme Court with a claim that since the subject of health had been devolved to the provinces under the 18th Amendment, the management of the hospitals — Jinnah Postgraduate Medical Centre (JPMC), National Institute of Cardiovascular Diseases (NICVD) and National Institute of Child Health (NICH) — now vests with the province.

In the detailed verdict, the apex court held that any purported transfer or devolution of the institutions by the federal government and the subsequent notifications and orders issued were unlawful and of no legal effect.

Entry No 16 of the Federal Legislative List (FLL) has two basic requirements, the verdict reminded, adding that the agency or institute in question must be federal and such federal agency must be for the purposes of research, professional training, technical training, or the promotion of special studies.

It is an admitted fact that JPMC is a federal institute and therefore satisfies the first limb of Entry No 16 of FLL, the judgment explained. It added that the hospital and institute aspects of JPMC were inter-dependent and mutually supporting.

Similarly, the judgement observed, NICVD is a federal agency and though it may be hard to say with certainty whether the research/training aspect outweighed that of treatment, a perusal of Section 6 of NICVD ordinance makes it clear that this aspect is not ancillary or incidental to the functioning of the hospital and, therefore, NICVD also falls within FLL.

The Institute of Cardiovascular Diseases (Sindh Administration) Act of 2014 (NICVD Sindh Act) is essentially a replica of the NICVD Ordinance and enacted to displace the latter. “We find this act of the provincial assembly to overturn a federal law, and nullify the same, to be unconstitutional, particularly considering the fact that NICVD fell within the domain of the federal government,” the verdict held.

The judgement said NICH was separated from JPMC in 1990 and made an attached department of the federal health ministry, thereby satisfying the first limb of Entry No 16 of FLL.

While NICH has hospital facilities, it is an established fact that it is a teaching/training institute as well, offering degrees and diplomas, including FCPS, MCPS, nursing programmes and paramedical courses, the judgment said.

Furthermore, NICH also has facilities for clinical research, resulting in the production of numerous research papers in the relevant field. Like JPMC and NICVD, these aspects as a whole bring NICH within the purview of the second limb of Entry No 16 supra.

National Museum

“It is an undisputed fact that prior to the purported transfer/devolution, NMP (National Museum of Pakistan) was a museum controlled/financed by the federation and therefore squarely falls within the ambit of Entry No 15,” the Supreme Court said.

“It is manifest from the objectives/functions stated in Resolution May 29, 1986, that Sheikh Zayed Postgraduate Medical Institute (SZPMI) had a predominant research/training aspect which was far from ancillary or incidental to the functioning of Sheikh Zayed Hospital, Lahore, and, therefore, we are in no manner of doubt that SZPMI falls within Entry No 16 of FLL.

“Entry No 37 of FLL provides for works, lands and buildings vested in, or in the possession of government for the purposes of the federation (not being military, naval or air force works), but, as regards property situated in a province. This entry allows the federal government to exercise its executive authority with respect to works, lands and buildings vested in it or in its possession but with a caveat, that if such works, lands and buildings are situated in the province, then they shall be subject to provincial legislation unless federal law provides for otherwise.

“We are of the view that institutions were purportedly transferred/devolved onto the province of Sindh by the federal government pursuant to the 18th Amendment.

“Thus JPMC, NICVD, NICH and SZPMI fell within the ambit of Entry No 16 of FLL while NMP fell within the purview of Entry No 15 and therefore within the exclusive federal domain and could not have been transferred/devolved upon the province of Sindh,” the verdict said.

The judgement asked the Jinnah Sindh Medical University (JSMU) to make arrangements to enter into a public-public or private-private or public-private partnership as per Regulations 9(5) and 14 of the Recognition, Eligibility Criteria for Enhancement in Annual Admissions and Accreditation Standards Regulations, 2018.

Published in Dawn, November 22nd, 2019