ISLAMABAD: Justice Maqbool Baqar of the Supreme Court has said the basic feature, rather the spirit and soul of federalism, is distribution of legislative powers between the federation and the provinces, with its core being provincial autonomy.

“Interpretation of constitutional provisions should thus be in consonance with this principle, rather than in a manner that encroaches upon the space reserved for the provinces,” Justice Baqar said, adding that the scope of an entry in the federal legislative list (FLL) should not be expanded or enlarged in a manner that infringed provincial autonomy.

The observations came in a dissenting note issued here on Thursday in a case relating to the ownership of three major hospitals in Karachi after the devolution of the health sector under the 18th Amendment.

In his dissenting note, Justice Baqar explains rationale behind his opposition to transfer of ownership of three Karachi hospitals to federal govt

Justice Baqar said that though a dissenting note had no legal force, the purpose of his endeavour was to appeal to the brooding spirit of the law in the hope that what might be dissent today became law tomorrow.

“The federal character of our constitution and provincial autonomy remains unimpeachable even during a war or external aggression, or internal disturbance beyond the power of a provincial government to control, resulting in a proclamation of emergency, issuance of which requires a resolution of the relevant provincial assembly or approval by both houses of parliament,” Justice Baqar observed.

The Sindh government and the health institutes 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 Jinnah Postgraduate Medical College, National Institute of Cardio Vascular Diseases and National Institute of Child Health also vested with the provincial government.

In January a five-judge bench headed by then chief justice Mian Saqib Nisar had dismissed the appeals of the Sindh government and the health institutes by holding that the ownership of the three hospitals and the National Museum of Pakistan in Karachi were handed over to the Sindh government “illegally” and ordered transfer of the management of the hospitals and the museum to the federal government.

In his dissenting note, Justice Baqar stated that the assumption of power to make laws with respect to matters beyond the FLL and so also the assumption of the functions of the provincial government by the federation were limited to the relevant province, and that too only for a limited period.

The federal government’s consequential ability to make any incidental provision was limited to those that were inevitable to give effect to the object of the proclamation, he said. It should also be kept in mind that the nature and character of the Constitution carries great significance and is of utmost relevance in construing the legislative entries and determining the scope and extent of the subjects assigned by it to the federation and the provinces.

Therefore, Justice Baqar said, the court should avoid an expansive construction of a federal legislative power which rendered redundant or nugatory the legislative field, power and authority assigned to the provinces, either expressly or as residuary, thus undermining provincial autonomy.

He observed that one must resist conflating the State with the federal government as the provincial and also the local governments too constituted the State. The State’s obligation with regard to fundamental rights is, therefore, to be fulfilled and discharged by all tiers of the government and all organs of the State as per their power, authority, obligation, and competence, strictly as prescribed under the Constitution.

Under no notion could any of the governments be stripped of their rights, authority, or power, nor could they be exempted from discharging or fulfilling their prescribed obligations, Justice Baqar said, adding that if allowed, this would result in anarchy and the Constitution would not only be undermined but would become redundant.

The scope and extent of the “right to life”, as protected under Article 9 of the Constitution, was so widespread that it embraced almost every aspect and facet of human existence, he said.

Allowing the federation to assume power and authority under such rubric would, thus, hardly leave anything for the provincial government to undertake, discharge, or fulfil, jeopardising the nation’s collective odyssey towards greater provincial autonomy, as witnessed in the unanimous approval of the 18th Amendment, the dissenting note said.

It was in order to ensure the faithful and instant compliance of the delineation of power between the federation and the provinces and ultimately between the provincial and the local governments that parliament enacted Article 140A in the Constitution. Article 140A in its present form prescribes that “each province shall, by law, establish a local government system and devolve political, administrative and financial responsibilities and authority to the elected representatives of the local government”.

Adhering to this would certainly foster in the people a greater sense of participation and reinforce and strengthen their faith in the State machinery of governance, bringing cohesion and giving strength to the country, Justice Baqar said.

Disregarding the mandatory provisions of the Constitution and the categorical mandate prescribed under it would embolden and encourage those who were averse to the rule of law and had scant regard for the supremacy of the law, thereby strengthening those who wanted to create dissention and discord in our national polity, he said.

Published in Dawn, May 31st, 2019