Supreme Court of Pakistan releases detailed reasons in Civil Appeals No.125-K TO 131-K and 2306 to 2309 of 2016 and Civil Miscellaneous Applications No.1254-K and 8973 of 2018 and Civil Petition 2312-L of 2018

Islamabad (HRNW)- Supreme Court of Pakistan has released detailed reasons in Civil Appeals No.125-K TO 131-K and 2306 to 2309 of 2016 and Civil Miscellaneous Applications No.1254-K and 8973 of 2018 and Civil Petition 2312-L of 2018 (Against the impugned judgment dated 04.07.2016 passed by the learned High Court of Sindh in Const.P. No.D-1692/2011, etc. and dated 03.04.2018 passed by the learned Lahore High Court in I.C.A. No.1359/2017) today i.e. 21.11.2019. The case was heard by 05 number bench headed by Mr. Justice Mian Saqib Nisar and comprising Mr. Justice Umar Ata Bandial, Mr. Justice Maqbool Baqar, Mr. Justice Faisal Arab and Mr. Justice Ijaz ul Ahsan in January 2019 and short order was passed. The full text of the judgment is also available on our website www.supremecourt.gov.pk. The detailed reasons of the judgment are given below: –

JUDGMENT SUMMARY
• The validity and constitutionality of the 18th Amendment is nowhere under question, which has been upheld by this Court in the judgment reported as District Bar Association, Rawalpindi and others v Federation of Pakistan and others (PLD 2015 SC 401).
• The question of provincial autonomy and distribution of executive and legislative power between the Federation and the respective Provinces as provided in the Constitution and the 18th Amendment have been affirmed and reiterated in various judgments of this Court.
• This opinion does not in any manner re-open the said issue.
• The question before us is of a limited nature, namely, the legality and vires of the action whereby certain federal institutions were transferred to the Provinces.
• As per Clause (8) of Article 270AA of the Constitution, matters which were devolved to the Provinces were those specifically mentioned in the Concurrent Legislative List, and this was the precise constitutional mandate given to the Implementation Commission constituted by the Federal Government under Clause (9) thereof.
• The Implementation Commission had to first satisfy itself as to whether the federal matter that came before it related to any Entry in the Concurrent Legislative List that was omitted, and if so, only then could such Commission take steps for the purposes of devolution.
• We find from a perusal of the entries contained in the Concurrent Legislative List, as it stood prior to its omission by the 18th Amendment, that none of them cover any of the institutions, i.e. JPMC, NICVD, NICH and NMP (“Institutions”).
• We find that the transfer of the 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 Clause (8) read with Clause (9) of Article 270 AA of the Constitution, hence the Implementation Commission went beyond its constitutional mandate in this regard.
• Consequently, any purported transfer/devolution of the Institutions by the Federal Government and the subsequent notifications and orders issued pursuant thereto were unlawful and of no legal effect.
• Entry No.16 of the Federal Legislative List has two basic requirements: (i) the agency or institute in question must be “federal”; and (ii) such federal agency or institute must be for the purposes of research, professional training, technical training, or the promotion of special studies.
• It is an admitted fact that JPMC was a federal agency/institute and therefore satisfies the first limb of Entry No.16 of the Federal Legislative List.
• The hospital and institute aspects of JPMC are interdependent and mutually supporting. Bearing in mind the cardinal principle of interpretation that legislative lists ought to be construed liberally and be given the widest amplitude possible, we find that JPMC did fall within Entry No.16 ibid.
• As regards the first limb of Entry No.16 supra, NICVD was a federal agency/institute. As with JPMC, while it may be hard to say with certainty as to whether the research/training aspect outweighed that of treatment, a perusal of Section 6 of the NICVD Ordinance makes it abundantly clear that the research/training aspect of NICVD is not ancillary or incidental to the functioning of the hospital and therefore, we are of the view that NICVD falls within Entry No.16 supra.
• Institute of Cardiovascular Diseases (Sindh Administration) Act, 2014 (“NICVD Sindh Act”) which is basically a replica of the NICVD Ordinance. The former appears to have been enacted to displace the latter. We find this act of the Provincial Assembly attempting in effect 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 as stands established hereinabove.
• 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 supra of being a federal agency/institute. While NICH has hospital facilities, it is an established fact that it is also a teaching/training institute offering various degrees/diplomas including FCPS, MCPS, nursing programs and paramedical courses. 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.
• It is an undisputed fact that prior to the purported transfer/devolution, NMP was a museum controlled/financed by the Federation and therefore squarely falls within the ambit of Entry No.15.
• It is manifest from the objectives/functions stated in Resolution dated 29.05.1986 vide which SPZMI was established that SZPMI has 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.
• Entry No.37 of the Federal Legislative List 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 situate in a Province, subject always to Provincial legislation, save in so far as Federal law otherwise provides.” 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 (apart from military, naval or air force works) but with a caveat, that if such works, lands and buildings are situated in a Province, then they shall be subject to Provincial legislation unless Federal law provides for otherwise.
• We are of the view that the Institutions were purportedly transferred/devolved onto the Province of Sindh by the Federal Government pursuant to the 18th Amendment.
• The Implementation Commission could only act in terms of Clauses (8) and (9) of Article 270AA of the Constitution and since it failed to satisfy itself that none of the Institutions were covered by the entries contained in the Concurrent Legislative List (as omitted by the 18th Amendment), therefore such Institutions could not have been devolved, consequently the purported transfer/devolution was unconstitutional and unlawful.
• JPMC, NICVD, NICH and SZPMI fell within the ambit of Entry No.16 of the Federal Legislative List while NMP fell within the purview of Entry No.15 thereof and were therefore within the exclusive federal domain and could not have been transferred/devolved upon the Province of Sindh.
• The transfer of SZPMI was also unlawful for the reason that it was done by the Prime Minister and not the Federal Cabinet as defined by Mustafa Impex’s case.
• JSMU may also 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.
• Arrangements may be agreed upon with JPMC and NICH in order to ensure that the status of JSMU is prevented from falling foul of PMDC’s regulations.
• A six-month grace period is granted to JSMU during which the past arrangement vis-à-vis the faculty shall continue.
• If required, JSMU shall ensure compliance with the faculty requirements as set out in the 2018 Regulations either by hiring separate full-time faculty for SMC on JSMU’s payroll; or JSMU negotiates with the Federal Government to allow the employees of JPMC and NICH to continue to be employed as the teaching staff at JSMU while holding a lien on their respective posts in the Federal Government.
• The Federal Government, the Provincial Government and JSMU shall mutually agree on the workable methodology to retain and preserve the status of JSMU.