Apropos the earlier discussion, the instant part of the series is set to examine the impact of the Eighteenth Amendment on the health sector. The task is not easy though, as the ‘health sector’ is not a singular entity; it’s a combination of many activities that may include issues that cut across many other fields of activities. For example, the issue of drug regulation may involve obligations under the international legal agreements; likewise, the issue of disseminating information regarding diseases may conveniently be bracketed with the broadcasting regulation. In any case, an attempt will be made to briefly examine the issues at the heart of the health sector that have been affected by the Eighteenth Amendment.
Health: Not a Fundamental Right
As noted by Dr Sania Nishtar in her seminal work ‘Health and the Eighteenth Amendment’, unlike the right to education that has been introduced as a Fundamental Right under Article 25-A of the Constitution of Pakistan, 1973, there is no constitutional Fundamental Right guaranteeing health. She noted that many other constitutions in the world guarantee health as a constitutional right. The purpose of highlighting this point is to underscore the fact that the constitution of Pakistan does not treat health at par with education.
Health Sector and the 18th Amendment
For a layperson, the health is a singular item; this singular treatment of the health is, constitutionally and practically speaking, not correct. The governance of the health sector was distributed between the federation and the provinces, enabling both to legislate in the sector. The concurrent legislation, and consequently the concurrent governance, of health by the federation and the provinces was discontinued. In essence, two main legislative interventions were made through the 18th Amendment:
(a) barring some modifications, the following entries in the Concurrent Legislative List (CLL) were abolished, empowering the provinces to exclusively legislate in these areas:
(b) the Federal Legislative List (FLL) was modified by:
(i) placing the ‘legal, medical and other professions’ entry into Part II of the FLL;
(ii) inserting a new provision in Part I of the FLL providing for legislation by the federal legislature relating to ‘international treaties, conventions and agreements, and international arbitration’;
(iii) shifting the entry of the ‘National planning and economic coordination, including planning and coordination of scientific and technological research’ from Part I of the FLL to its Part II.
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