Provinces have to exercise their executive authority fully compliant with federal law: SHC

KARACHI: The Sindh High Court on Thursday observed that it is mandatory for the provinces to exercise their executive authority in a manner as to be fully compliant with the federal law, and not in a way to either impede or prejudice the federal law or the executive authority being exercised thereunder by the Federation.

The SHC’s full bench, headed by Justice Mohammad Iqbal Kalhoro, observed in a detailed judgment of the Pakistan Medical Commission’s case that neither the province has the legislative competence over the subject namely medical and matters incidental or ancillary to it, which has all along been within the domain of the Federation evidenced from the Ordinance, 1962, nor post 18th Amendment the provinces have retained the executive authority over it.

The SHC’s full bench had earlier struck down the Sindh government’s decision lowering the pass marks from 65pc to 50pc for medical and dental colleges admission test MDCAT-21 in a short order, declaring impugned notification to be void ab initio having been issued without a lawful authority and of no legal effect.

The court observed that no room is left for the provinces to chart their own course on the subject, sans legislative and executive authority, in defiance of a federal law standing the field whilst, and act contrary to it. The court observed that the provincial legislature to have legislative competency on subjects, topics, and activities not mentioned in federal legislative list, in addition to the matters relating to criminal law, criminal procedure and evidence.

The court observed that the Sindh government’s decision with regard to lowering the pass marks from 65pc to 50pc do not seem to be a result of any apparent legal authority or a law in the field, pari materia, etc. promulgated by the province on the subject, post 18th Amendment, empowering the Sindh cabinet to make the impugned decisions to even bear scrutiny of applicability of doctrine of occupied field in this case. The court observed that in a case where both the federal and provincial legislatures have made a law on the same subject claiming concurrent jurisdiction and there is a conflict between them then as per Article 143 of the constitution, to the extent of any repugnancy between the two laws, the federal law shall prevail.

The court observed that quite strangely, the Sindh government has only objected to fixing of benchmark 65pc to attain in the test to become eligible to admission, and has otherwise expressly no issue to the whole mechanism employed for conducting the test, selecting procedure and syllabus for framing the questions, etc.

The court observed that if found, the action of Sindh government was rather paradoxical and unsustainable as, on the one hand, it has questioned the legitimacy of the law as a whole on the ground of having residuary jurisdiction over the matter and, on the other hand, has invoked the same law for selecting students for admission by reducing pass marks to 50pc.

The PMC had challenged the Sindh government’s decision on the ground that the Sindh government has no legal right to allow students who had failed the MDCAT examination to be eligible for admission to medical and dental colleges in the province of Sindh. The PMC case was that fixing the passing marks for the MDCAT examination was the exclusive domain of the PMC under Section 18 of the PMC Act and requirement of MDCAT being mandatory and within legal mandate and domain of the commission was now well established on account of a number of judgments by the superior courts.

The Advocate General, Sindh, had questioned maintainability of the petition submitting that the issue raised in the petition could not be entertained on writ jurisdiction as the matter pertained to the province and the federal government, which should be taken up before the Supreme Court under Article 184(1). The attorney general of Pakistan submitted that the PMC cannot be equated with the federal government to attract the scheme under Article 184 (1) of the Constitution.