Friday July 12, 2024

SC suspends order against devolution of JPMC, other depts

By Jamal Khurshid
July 26, 2016

Sindh govt says health is a provincial subject and hospitals stand devolved under 18th amendment


The Supreme Court on Monday suspended the Sindh High Court judgment that had declared unconstitutional the devolution of federal public healthcare facilities -- Jinnah Postgraduate Medical Centre, National Institute of Cardiovascular Diseases, National Institute of Child Health and National Museum -- to the province under the 18th amendment. 

The provincial government had assailed the high court’s order and contended that after the passage of the 18th amendments, the health department was a provincial subject and the hospitals were to be devolved to it.  It said the hospitals in general were neither part of the federal list nor had they been on the concurrent list; thus, the hospitals were exclusively in its domain.

Sindh Advocate General Barrister Zamir Ghumro submitted that various departments, offices, organisations and projects of federal ministries, which included health, sports, minorities affairs, environment, labour and manpower, food and agriculture and women development, had been devolved to the provinces in 2011 in pursuance of the 18th amendment to the constitution.

He argued that the subject of health had never been part of any federal legislative list or concurrent list. The hospitals in questions were devolved to the provincial health department by the federal health ministry through a notification issued on June 30, 2011, and subsequently the employees of those institutes were transferred to the Sindh health department under Rule 10-A of the Civil Servants Act,  1973.

Citing the example of a Supreme Court case pertaining to employees of the Lady Health Workers Programme, the provincial law officer noted that it was decided that since health was a provincial issue, the provinces would regularise the employees of that programme.  Keeping these facts in mind, the Sindh Assembly passed the Sindh Civil Servants Amendment Act, 2014 for the protection of rights of the employees of the devolved institutes, he added.

AG Ghumro contended that since 1935 health had been a provincial subject; thus, under Article 142-C, the provincial assembly had exclusive powers to make laws regarding matters which were not mentioned in the federal legislative list. 

He was of the view that the authors of the 18th amendment being fully conscious of that constitutional mandate transferred the management and control of those institutions to the province.

He submitted that there was no entry available in the federal legislative list relating to the subject of health, hospitals, which provided treatment to the public, and as such the 18th amendment was to be seen as a whole, particularly Article 270-AA (6)(8) and (9). He argued that the conclusion of the SHC bench was not sustainable under the law.

The advocate general argued that the SHC lacked jurisdiction to decide the matter which could be a dispute only between the federation and the provinces under Article 184 of the constitution, wherein the jurisdiction of every other court, including that of the high court, was barred under the constitution and the matter rested in the exclusive domain of the Supreme Court.  A three-member SC bench, headed by Justice Gulzar Ahmed, suspended the high court’s order and issued notices to other respondents for their replies.