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.
The net effect of the modifications in the FLL was to provide for legal basis of dealing with international law relating to health and for providing the role of federation in matters related to medical profession and scientific research.
Health Governance Architecture
As a result of the 18th Amendment, the governance architecture qua health was revised and new structures were introduced at federal and provincial levels. As per the Rules of Business, 1973, the Ministry of Health was re-designated as the Ministry of National Health Services, Regulations and Coordination. The provinces, likewise, re-organized their health departments considerably. For example, in Punjab, according to its Rules of Business, 2011, it has two departments that deal with the health sector. These are: (1) the Primary and Secondary Healthcare Department; and (2) the Specialized Healthcare and Medical Education Department.
Pakistan Medical and Dental Council Versus Muhammad Fahad Malik Case
The legal framework provided by the 18th Amendment was further developed by the judicature by deciding on the issues that were brought before it and through its suo motu jurisdiction. An important case came up in January 2018 before the Supreme Court of Pakistan (SCP) wherein the constitutionality of provincial regulation of the medical education was examined. On 12th January 2018, the SCP upheld the judgement of a two-member bench – comprising JJ. Ayesha A. Malik and Jawad Hassan – of the Lahore High Court (LHC) in which it was held that the Council of Common Interests (CCI) was vested with the power to regulate medical education on the strength of the modifications introduced to the FLL through the 18th Amendment. While recording the detailed reasons of its decision, the LHC relied, primarily, on an earlier judgement of the SCP in a case titled Messrs Gadon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641) that noted:
“The Council of Common Interests is an independent Constitutional body, with an important Constitutional role to play, answerable directly to the Parliament without any interference from the Cabinet or the executive Government of the Federation. The executive authority of the Federation stands, to the extent defined in Article 154, abridged, and to that extent, it stands vested in the Council; and the provisions of Article 154 are mandatory in character. If a matter falls within the powers of the Council of Common Interests under Article 154, it must be placed before it. It is wrong to think that the function of the Council is to resolve disputes and that it is to be activated only when there is a dispute to be resolved. Secondly, the policy decision by the Council of Common Interests must precede any decision by the Federal Government or for that matter any of its instrumentalities such as the Authority. Thirdly, if the Council has made a policy decision in the performance of its functions under Article 154, it is binding upon the Federal Government and the Authority. That is the necessary result of Article 154 being a constitutional provision and it being of mandatory character.”
The Supreme Court not only upheld the decision of the LHC, but also appointed an Ad Hoc Council headed by Mr Justice (Retd.) Shakir Ullah Jan, a former judge of the SCP, to run the affairs of the PMDC till election/appointment of the regular members of the Council.
Federal Government’s Role in Health
Dr Sania Nishtar has advocated for the role of federal government in health. She has delineated seven areas where national role is constitutionally sustainable. These seven areas are: (i) national health policy; (ii) trade in health; (iii) health information; (iv) health research; (v) health regulation; (vi) international commitments; and (vii) human resource. Her view is weighty and there is a strong case that the CCI be sensitized about national role of the federation in all the seven areas highlighted by the distinguished international expert on health. The judgement of the SCP can prove a point of departure for the CCI to ensure federation’s role in health matters.