[Supreme Court of Pakistan]
Present: Mian Saqib Nisar, C.J. Umar Ata Bandial, Maqbool Baqar, Faisal Arab and Ijaz ul Ahsan, JJ
GOVERNMENT OF SINDH through Secretary Health Department and others---Appellants
Versus
Dr. NADEEM RIZVI and others---Respondents
Civil Appeals Nos. 125-K to 131-K and 2306 to 2309 of 2016 and Civil Miscellaneous Applications Nos. 1254-K and 8973 of 2018 and Civil Petition 2312-L of 2018, decided on 17th January, 2019.
(Against the impugned judgment dated 04.07.2016 passed by the learned High Court of Sindh in Constitutional Petition No. D-1692/2011, etc. and dated 03.04.2018 passed by the learned Lahore High Court in I.C.A. No. 1359/2017)
Per Ijaz ul Ahsan, J; Mian Saqib Nisar, CJ, Umar Ata Bandial and Faisal Arab, JJ agreeing; Maqbool Baqar, J, dissenting.
(a) Constitution of Pakistan---
----Art. 270AA, Cls. 8 & 9---Transfer of certain hospitals and a national museum from the Federation to the Provinces in light of the Eighteenth Amendment to the Constitution---Constitutionality---Jinnah Postgraduate Medical Center, Karachi ("JPMC"); National Institute of Cardiovascular Diseases, Karachi ("NICVD"); National Institute of Child Health, Karachi ("NICH"); National Museum of Pakistan, Karachi ("NMP"); and Sheikh Zayed Postgraduate Medical Institute, Lahore ("SZPMI")---[Per Ijaz ul Ahsan, J (Majority view): Transfer of said Institutions from the Federal to the Provincial Government was unconstitutional, in that the Institutions did not fall within the Concurrent Legislative List as required by Cl. (8) read with Cl. (9) of Art. 270AA of the Constitution---Implementation Commission, which was constituted to implement and give effect to the provisions of the Eighteenth Amendment to the Constitution, went beyond its constitutional mandate in such regard---Consequently, any purported transfer/devolution of the said Institutions (to the Provinces) by the Federal Government and the subsequent notifications and orders issued pursuant thereto were unlawful and of no legal effect---Order accordingly.
(b) Constitution of Pakistan---
----Fourth Sched.---Legislative Lists, interpretation of---Said Lists must be liberally construed and given the widest possible meaning and amplitude---Principles of interpretation with respect to Legislative Lists stated.
Following are the principles of interpretation with respect to Legislative Lists in the Constitution:
(i) The entries in the Legislative Lists of the Constitution were not powers of legislation but only fields of legislative heads;
(ii) In construing the words in an Entry conferring legislative power on a legislative authority, the most liberal construction should be put upon the words;
(iii) While interpreting an Entry in a Legislative List it should be given widest possible meaning and should not be read in a narrow or restricted sense;
(iv) Each general word in an Entry should be considered to extend to all ancillary or subsidiary matters which could fairly and reasonably be said to be comprehended in it;
(v) If there appeared to be apparent overlapping in respect of the subject-matter of a legislation, an effort had to be made to reconcile the Entries to give proper and pertinent meaning to them;
(vi) A general power ought not to be so construed so as to make a particular power conferred by the same legislation and operating in the same field a nullity;
(vii) Legislation under attack must be scrutinized in its entirety to determine its true character in pith and substance; and
(viii) After considering the legislation as a whole in pith and substance, it had to be seen as to with respect to which topic or category of legislation in the various fields, it dealt substantially and directly and not whether it would in actual operation affect an item in the forbidden field in an indirect way.
Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802 ref.
(c) Constitution of Pakistan---
----Arts. 9, 142(c), 247 & Fourth Sched., Pt. I, Entries Nos. 15, 16---National Institute of Cardiovascular Diseases (Administration) Ordinance (I of 1979), S. 6---Transfer of certain hospitals and a national museum from the Federation to the Provinces in light of the Eighteenth Amendment to the Constitution---Constitutionality---Jinnah Postgraduate Medical Center, Karachi ("JPMC"); National Institute of Cardiovascular Diseases, Karachi ("NICVD"); National Institute of Child Health, Karachi ("NICH"); National Museum of Pakistan, Karachi ("NMP"); and, Sheikh Zayed Postgraduate Medical Institute, Lahore ("SZPMI")---[Per Ijaz ul Ahsan, J (Majority view): Entry No.16 of Part I to Fourth Schedule of the Constitution ('Entry No. 16' of the Federal Legislative List) had two basic requirements; first, the agency or institute in question must be "federal"; and second, such federal agency or institute must be for the purposes of research, professional training, technical training, or the promotion of special studies---Jinnah Postgraduate Medical Center, Karachi ("JPMC") was a federal agency/institute and therefore satisfied the first limb of Entry No.16 of the Federal Legislative List---As regards the second limb, the hospital and institute aspects of 'JPMC' were interdependent and mutually supporting---Bearing in mind that legislative lists ought to be construed liberally and be given the widest amplitude possible, 'JPMC' did fall within Entry No.16---National Institute of Cardiovascular Diseases, Karachi ("NICVD") was also a federal agency/institute---Research/training aspect of 'NICVD' was not ancillary or incidental to the functioning of the hospital and therefore, it too fell within Entry No.16---Admittedly, the National Institute of Child Health, Karachi ("NICH") was separated from JPMC in the year 1990 and made an attached department of the Federal Ministry of Health, thereby satisfying the first limb of Entry No.16 being a federal agency/ institute---While NICH had hospital facilities, it was an established fact that it was also a teaching/training institute offering various degrees/diplomas including 'FCPS', 'MCPS', nursing programs and paramedical courses---Furthermore, 'NICH' also had facilities for clinical research, resulting in the production of numerous research papers in the relevant field---Like 'JPMC' and 'NICVD', such aspects as a whole brought 'NICH' within the purview of the second limb of Entry No.16---Prior to its purported transfer/devolution, National Museum of Pakistan, Karachi ("NMP"), was a museum controlled/ financed by the Federation and therefore squarely fell within the ambit of Entry No.15 of Part I to Fourth Schedule of the Constitution---In any case, there was no relevant entry in the Concurrent Legislative List within which 'NMP' would fall---Features of the 'Resolution' dated 29.05.1986 through which the Sheikh Zayed Postgraduate Medical Institute, Lahore ("SZPMI") was established made it clear beyond any doubt that it was a federal agency/institute in terms of Entry No.16 of the Federal Legislative List---Objectives/functions of the 'SZPMI' as identified in the Resolution showed that it had a predominant research/training aspect which was far from ancillary or incidental to the functioning of Sheikh Zayed Hospital, Lahore and therefore, without any doubt 'SZPMI' fell within Entry No.16---Besides, at the time of the purported transfer to the Province, the administrative control of 'SZPMI' along with its staff and equipment vested with the (Federal) Ministry of Health and was given to the Cabinet Division, therefore falling strictly within the domain of the Federal Government (i.e. Cabinet Division), it could not have been transferred to the Provincial Government through the impugned notification which mentioned that the "Prime Minister has been pleased to order transfer of administrative control of…" 'SZPMI' to the Provincial Government---Prime Minister alone did not have the power or authority to make such transfer without the approval of the Federal Cabinet---Even otherwise there was nothing on record to indicate that the said transfer was approved by the Federal Cabinet---Transfer of 'SZPMI' to the Province was clearly in excess of the powers available to the Prime Minister under the Constitution, the law and the Rules of Business, 1973---Entry No.37 of the Federal Legislative List allowed the Federal Government to exercise its executive authority with respect to works, lands and buildings vested in it or in its possession (apart from military, naval or air force works) but with a caveat, that if such works, lands and buildings were situated in a Province, then they shall be subject to Provincial legislation unless Federal law provided for otherwise---Intention behind the 18th Amendment to the Constitution could not have been to prevent the Federal Government from opening healthcare facilities in any of the Provinces, for concluding so would be tantamount to attributing absurdity to a constitutional provision---Declaration to the effect that the Institutions in question had been transferred by the Federal Government to the Provinces without following due process of law, application of mind and in a mechanical manner did not by any stretch of the imagination impugn upon or encroach the Provincial autonomy granted by the Constitution---Furthermore power of the Federation to set up, run and operate projects including hospitals and related research facilities where enforcement of Fundamental Rights was involved was an obligation of the Federal Government under the Constitution---In the present case, enforcement of right to life was involved which was one of the most fundamental of the Fundamental Rights---To curtail or circumscribe the power of the Federal Government to enforce Fundamental Rights guaranteed by the Constitution would be an athema for the concept of Federalism--- Supreme Court declared the transfer/devolution of JPMC, NICVD, NICH, NMP and SZPMI (to the Provinces) to be unconstitutional, without lawful authority and of no legal effect]---[Per Maqbool Baqar, J (Minority view): Hospitals, along with public health, fell exclusively within the provincial domain---Research and training were the most essential components of the public health, without which, the obligation to provide quality and affordable healthcare could not be discharged, dispensed and fulfilled, it would therefore not be fair to say that health related research education and training could not lawfully form part of a "hospital" and/or "public health", in the context of the distribution of legislative, hence executive powers in a federal dispensation---Classifying a general hospital as of the category falling under Entry No.16 of the Federal Legislative List, for its conducting research and/or imparting professional or technical training in the fields of health sciences would dissuade hospitals owned and operated by the provincial governments from pursuing such activities, for a fear of being so branded, and thus being taken over by the Federal Government---Scope and extent of the "right to life", as protected under Art. 9 of the Constitution was so wide spread that it embraced almost every aspect and facet of human existence---Allowing the federation to assume power and authority under such a rubric would, thus, hardly leave anything for the provincial government to undertake, discharge, or fulfil, jeopardizing the nation's collective odyssey towards greater provincial autonomy---In the present case, primary character and nature of 'JPMC' was that of a tertiary care public hospital---Research, education and training activities were made possible at 'JPMC' because of it being a hospital, and that too, with at least twenty eight different departments for treatment of as many diseases and ailments and their different strands---Not all the departments and facilities at 'JPMC' were being used for imparting education and training---Perusal of S. 6 of National Institute of Cardiovascular Diseases (Administration) Ordinance, 1979, showed that the core function/purpose of 'NICVD' was that of a cardio vascular hospital, while training and research were employed merely as tools and means to achieve and realize such purpose---Said Ordinance of 1979, was no impediment in the transfer of 'NICVD'; firstly for the reason that the Ordinance did not exist in the eyes of law, having been promulgated by the federal government beyond its constitutional mandate and in violation of the restriction placed on it by means of Art. 142(c) of the Constitution, as hospitals and public health never fell within the legislative sphere of the federation and had always, exclusively remained provincial subjects---More significantly, the impugned transfer of the institute to the Province, though made belatedly, was in compliance with the constitutional mandate, as prescribed by Art. 274 of the Constitution---National Institute of Child Health, Karachi ("NICH") had developed into a five hundred bed children hospital, where teaching and training was carried out merely as an ancillary activity]---Order accordingly. (d) National Institute of Cardiovascular Diseases (Administration) Ordinance (I of 1979)---
----S. 6---National Institute of Cardiovascular Diseases (Sindh Administration) Act, 2014 (IV of 2015), Preamble ---Constitution of Pakistan, Fourth Sched., Pt. I, Entry No. 16 --- National Institute of Cardiovascular Diseases (Sindh Administration) Act, 2014, vires of---Provincial Assembly had passed the National Institute of Cardiovascular Diseases Act, 2014 ("the 2014 Act"), which was basically replica of the National Institute of Cardiovascular Diseases (Administration) Ordinance, 1979---Said Ordinance appeared to have been enacted to displace 'the 2014 Act'---Said Act of 2014, which was an attempt to overturn a Federal law and nullify the same, was unconstitutional, particularly considering the fact that the National Institute of Cardiovascular Diseases, Karachi ("NICVD") fell within the domain of the Federal Government---Supreme Court suspended the 2014 Act and directed that such suspension shall be subject to other directions of the Court, which shall apply in all respects to 'NICVD', and nothing in the Provincial Law (i.e. the 2014 Act) nor in the suspension thereof shall in any manner hinder, restrict, impede or otherwise affect the return and restoration of 'NICVD' to the Federation---Order accordingly.
(e) Constitution of Pakistan---
----Art. 9---Right to life---Scope---Right to healthcare---Right to life undoubtedly entailed the right to healthcare which meant that everyone had the right to the highest attainable standard of physical and mental health and this comprised of access to all kinds of medical services including but not limited to hospitals, clinics, medicines and services of medical practitioners which must not only be readily available and easily accessible to everyone without discrimination, but also of high standard---Federal Government had an obligation to carry out all necessary steps to ensure realization of this goal.
State of Punjab and others v. Mohinder Singh Chawla and others (1997) 2 SCC 83 and State of Punjab and others v. Ram Lubhaya Bagga and others (1998) 4 SCC 117 ref.
(f) Constitution of Pakistan---
----Arts. 97, 137, 142, Pt. II, Chapt. 1 & Fourth Sched.---Fundamental Rights, enforcement of---Federal Government, duty of---Scope---Federal Government was not absolved from conferring the fundamental rights contained in the Constitution upon its citizens and the State was required to enforce such rights---Such duty prevailed, notwithstanding the respective domain of Federal and Provincial executive authority as determined by the respective Federal and Provincial legislative competence in light of the provisions of Arts. 97, 137 & 142 of the Constitution read in conjunction with the Federal Legislative List---Such duty transcended and surpassed other provisions of the Constitution and could not, in any circumstance whatsoever be curtailed or abridged.
Liaqat Hussain and others v. Federation of Pakistan through Secretary, Planning and Development Division, Islamabad and others PLD 2012 SC 224 ref.
(g) Jinnah Sindh Medical University Act (XXIII of 2013)---
----Ss. 2(h), 2(i), 2(j), 2(k), 4(1), 4-A & 22---Medical and Dental Institutions (Recognition, Eligibility Criteria for Enhancement in Annual Admissions and Accreditation Standards) Regulations, 2018, Reglns. 2(f), 3(1), 5(1), 5(2), 9, 14 & Appendix I, Cls. 21, 22, 23, 24 & 25---Practical difficulties that would be faced by Jinnah Sindh Medical University ("JSMU") in case, Jinnah Postgraduate Medical Center, Karachi ("JPMC"), National Institute of Cardiovascular Diseases, Karachi ("NICVD"), and National Institute of Child Health, Karachi ("NICH") were reverted to the Federation from the Province---In view of such practical difficulties and in order to protect the interests of students and faculty members of Sindh Medical College ("SMC"), the Supreme Court gave a grace period of six months to Jinnah Sindh Medical University ("JSMU") and issued certain directions to the Federal and Provincial Governments to ensure that (post reversion to the Federation) 'JSMU' complied with provisions of Medical and Dental Institutions (Recognition, Eligibility Criteria for Enhancement in Annual Admissions and Accreditation Standards) Regulations, 2018---Supreme Court issued directions in such regards.
(h) Constitution of Pakistan---
----Arts. 9 & Fourth Sched., Pt. I, Entries Nos. 15, 16---National Institute of Cardiovascular Diseases (Administration) Ordinance (I of 1979), S. 6---Transfer of certain hospitals and a national museum from the Federation to the Provinces in light of the Eighteenth Amendment to the Constitution---Constitutionality---Supreme Court declared the transfer/devolution of Jinnah Postgraduate Medical Center, Karachi ("JPMC"); National Institute of Cardiovascular Diseases, Karachi ("NICVD"); National Institute of Child Health, Karachi ("NICH"); National Museum of Pakistan, Karachi ("NMP"); and, Sheikh Zayed Postgraduate Medical Institute, Lahore ("SZPMI") (to the Provinces) to be unconstitutional, without lawful authority and of no legal effect and gave certain directions to that effect.
Supreme Court after declaring the transfer/devolution of Jinnah Postgraduate Medical Center, Karachi ("JPMC"), National Institute of Cardiovascular Diseases, Karachi ("NICVD"), National Institute of Child Health, Karachi ("NICH"), National Museum of Pakistan, Karachi ("NMP"), and Sheikh Zayed Postgraduate Medical Institute, Lahore ("SZPMI") from the Federation to the Provinces as unconstitutional, without lawful authority and of no legal effect gave the following directions:
(i) All acts done or orders, directions, notifications and directives issued or made pursuant to the purported transfer/devolution or to give effect to the same in any manner whatsoever, which were inconsistent with or in derogation of the tenor of the present order to the extent of inconsistency were without lawful authority and of no legal effect;
(ii) Till such time as the exercise (of transfer from Provinces to the Federal Government) was not completed, all matters pertaining to the Institutions shall continue on the same basis as on the date of present judgment including, but not limited to, financial and budgetary matters, disbursements, outlays and expenditures, including disbursements relating to the payment of salaries, pensions and such-like matters;
(iii) Within 90 days of present judgment, the Federal and Provincial Governments and all concerned and related authorities, entities, bodies, departments, establishments and officers shall complete all matters relating to the return of JPMC, NICVD, NICH and the NMP from the Province to the Federation such that the position of these Institutions was restored, to the maximum extent possible, to the status quo ante, being in relation to JPMC, NICVD and NICH the position as on 29-06-2011, and in relation to the NMP the position as on 05-4-2011, and such restoration and return shall include the actual resumption by the Federation of all financial obligations in relation to the Institutions and all serving or retired officers, employees or servants thereof;
(iv) If such exercise could not be completed within 90 days, the Federal Government or the Provincial Government may apply to the Court for an extension and such extension may be granted for such period or periods as the Court deemed appropriate but such period(s) shall not in the aggregate exceed 90 days;
(v) Once the exercise was complete, the Federal and Provincial Governments shall file an appropriate joint statement (duly supported by the necessary and relevant record) before the Court, which may give such notice of the same to such persons or parties as it deemed appropriate, and may thereafter and thereupon make a declaration that the exercise had been completed;
(vi) If in completing such exercise, it was not possible to restore the status quo ante in respect of any Institution in any material respect, then any concerned party may make an appropriate application to the Court, which may issue such directions and make such orders as were deemed expedient and appropriate thereon, but in such manner and to such extent as was consistent with the expeditious restoration of the Institution from the Province to the Federation;
(vii) The Province shall be entitled to a suitable reimbursement/ adjustment from/with the Federation of all disbursements and financial outlays made and expenditures incurred from the date of the transfer/devolution of the Institutions to the Province from the Federation till the date of the return and restoration thereof from the Province to the Federation and/or the actual resumption of financial obligations in relation thereto by the Federation, being disbursements and financial outlays made and expenditures incurred by the Province that it would not have made or incurred but for the devolution/transfer.
(viii) In case the Province and the Federation are unable to resolve any matter that shall be deemed to be a dispute between them and the aggrieved party shall be entitled to its remedies in accordance with the Constitution and the law.
Per Maqbool Baqar, J; dissenting
(i) Words and phrases---
----"Federalism", concept of---Salient features of federalism stated.
(j) Constitution of Pakistan---
----Arts. 97, 137, 142 & Fourth Sched.--- Legislative Lists, interpretation of---Federalism, concept of---Scope---Spirit and soul of federalism, was the distribution of legislative powers between the federation and the province, with its core being provincial autonomy---Interpretation of constitutional provisions should thus be in consonance with the said principle, rather than in a manner that encroached upon the space reserved for the provinces---Scope of an entry in the Federal Legislative List should not be expanded or enlarged in a manner that infringed provincial autonomy---Nature and character of the Constitution carried great significance and was 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---Court should therefore 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.
(k) Constitution of Pakistan---
----Pt. II, Chapt. 1 [Arts. 8 to 25]---Fundamental rights, enforcement of---Obligation of State---"State"---Meaning---State had guaranteed the protection of Fundamental rights enshrined in the Constitution---Nonetheless, one must resist conflating the State with the federal government as the provincial and also the local governments too constituted the State---State's obligation with regard to fundamental rights was, 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 said governments be stripped of their rights, authority, or power, nor could they be exempted from discharging or fulfilling their prescribed obligations.
(l) Judgment---
----Dissenting note---Significance and scope---While a dissenting note had no legal force, the purpose of such endeavour was to appeal to the brooding spirit of the law in the hope that what may be dissent today becomes the law tomorrow.
Salman Talib-ud-Din, A.G. Sindh, Farooq H. Naek, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in C.As. Nos.125-K to 131-K/2016).
Salahuddin Ahmed, Advocate Supreme Court and Prof. S.M. Tariq, V.C. JSMU, Karachi for Appellants (in C.A. No.2306/2016).
Raza Rabbani, Advocate Supreme Court and Salim Salam Ansari, Advocate Supreme Court for Appellants (for NICV in C.A. No.2307/2016).
Haider Waheed, Advocate Supreme Court for Appellants (in C.As. Nos.2308 and 2309/2016).
Zafar Iqbal Chaudhry, Advocate Supreme Court for Appellants (in C.P. No.2312-L/2018).
Barrister Umaima Anwar, Advocate (with permission of the Court) for Respondents (in C.A. No.125-K/2016).
Salim Salam Ansari, Advocate Supreme Court for Respondents (for NICV in C.As. Nos.2306 and 2309/2016).
M. Iqbal Chaudhry, Advocate-on-Record for Respondents (in C.A. No.127-L/2016).
Abdul Rauf Rohaila, Advocate Supreme Court for Respondents (in C.A. No.2306/2016).
Sajid Ilyas Bhatti, Addl. A.G.P., Khurram Saeed, Addl. A.G.P., Capt. (Retd) Zahid Saeed, Secy. M/o NHSR&C, Asif Sohail, Dir. Litigation M/o NHSR&C and Raja Abdul Ghafoor, AOR for HEC for Respondents (in C.A. No.2306/2016).
Hamid Khan, Senior Advocate Supreme Court, Ahmed Awais, A.G. Punjab and Qasim Ali Chohan, Addl.A.G. Punjab for Respondents (in C.P. No.2312-L/2018).
Dr. Seemi Jamali, Executive Director, JPMC, Prof. A.R. Jamali, JPMC, Prof. Dr. Kausar Amir, JPMC, Dr. Riaz Gill, JPMC and Dr. M. Attique for Respondents.
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