Advocate Raza Rabbani said the case relates to the three organs of the State and involves sensitivity; therefore, the full court bench of the Supreme Court be constituted for hearing this case. He said the matter also involves the provincial autonomy and the 18th Amendment. However, the Chief Justice clarified: "We are not hearing the 18th Amendment."
A five-member larger bench, headed by Chief Justice Mian Saqib Nisar, was hearing the Sindh government's appeal regarding transferring the ownership of Jinnah Postgraduate Medical Centre (JPMC), National Institute of Cardiovascular Diseases (NICVD) and National Institute of Child Health (NICH), Karachi, from the Federation to the Sindh government and the Sheikh Zayed Hospital in Lahore to the Punjab government.
The bench issued notices to Attorney General for Pakistan, PMDC, Federation and the Punjab government regarding the matter. The Chief Justice said, "Our concern is whether or not the hospitals could be devolved to provinces."
Rabbani said if the federal government regulates the hospitals in a province then Article 137 of Constitution would become redundant, adding it is the lego-politico matter; therefore, the court should not pass any judgement as smaller provinces after making a lot of efforts have reached the present situation (autonomy).
The Chief Justice remarked it is not the lego-politico, but the simple legal question. "We in the 18th Amendment case held that it is a valid amendment." The Chief Justice restrained Rabbani from going into the debate of smaller or bigger provinces.
Rabbani said, "We should also keep in mind the political perspective. Hospitals and health in all constitutional documents from the Government of India Act, 1935 have either been on the provincial list or became residuary subjects."
The Chief Justice remarked those were the colonial laws, saying: "We have our own constitutional history and struggle."
Rabbani argued that from the collective reading of Articles 97, 137 and 142(c) of Constitution it emerges that it is legislative competence which determines the executive competence.
He said if the federal government begins to trespass on the constitutional domain of the provinces on the basis of perception that it can do better then the federal scheme of the 1973 Constitution, which is parliamentary structure and provincial autonomy will go like the wind. It would then be better to amend the Constitution and introduce a Presidential and unitary form of government so that, at least, the sanctity of Constitution is maintained.
The Chief Justice inquired if a provincial government is doing nothing regarding any specific disease in that province then should not the federal government set up the hospital in that province and also run that facility? He also questioned why the federal government after setting up a hospital hand it over to a provincial government.
Rabbani contended that according to the Article 137 of Constitution, the legislative competence of hospitals and health is with provinces, therefore, the executive competence will also be with provinces. The intention of the legislature in keeping hospitals and health with the province is evident from the Constitution of 1962, wherein other lists were dropped except for the State List and deliberately hospitals and health were made residuary subjects.
Similarly, in the 1973 Constitution and in the 18th Amendment where a class of hospitals was to be given to the federal government it was mentioned in the Entry No. 19 and in the Federal Legislative List Part. Therefore, if the intention was to give JPMC to the federation then it could have been added to the said Entry.
Justice Umar Atta Bandial asked him, "You want to say that the executive authority and the administrative authority are not the same. You mean to say that the executive authority is that which implements its order and legislative instruments while the administrative authority coordinates with the executive authority."
Upon the court's query, Rabbani said that a private citizen can run a hospital in the province. Justice Ahsan stated, "You prevent the federal government from running a health project in the province but say that a private person could do it."