The status of health

Access to health is not a fundamental right under Pakistan’s constitution. No specific provision relating to health is included in the chapter on fundamental rights. However, the constitution contains a chapter on the ‘Principles of Policy’ of the state of Pakistan.

It is the responsibility of each organ and authority of the state, and of each person performing functions on their behalf, to act in accordance with these principles in so far as they relate to the functions of the organ or authority.

The observance of any particular principle of policy has, however, been made subject to the availability of resources. Each year, the president in relation to the affairs of the federation, and the governor of each province in relation to the affairs of his/her province, are required to prepare and present to the national and provincial assemblies a report on the observance and implementation of the principles of policy. The presentation is supposed to be followed by discussion. But there have been no such reports presented for decades now.

Another problem with the principles of policy lies with the fact that Article 30(2) of the constitution says that the validity of an action or of a law cannot be called in question on the ground that it is not in accordance with the principles of policy, and no action lies against the state, any organ or authority of the state or any person on such ground.

One principle of policy is Article 38(d) of the constitution which says that the state should provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all its citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment. This is enough to revolutionise the state of affairs in the country. You can ask the people of Pakistan, particularly the poor and those in regions like Thar, about the extent of implementation of this policy.

One excuse we keep hearing about inaction on the part of the federal government is the 18th Amendment which deleted the concurrent legislative list from the Fourth Schedule to the constitution. This list contained subjects about which both the federal and provincial governments could legislate. The deletion of the concurrent legislative list means that the federal government can only legislate on subjects that are specified in the federal list; and the provinces are free to make laws relating to all the remaining subjects.

Believe it or not, health was never on the federal, or concurrent legislative list. That means that this is how the situation has always been since the introduction of the constitution in 1973; and the 18th Amendment has not really affected the health sector in any consequential manner. The fact that health was not, and is not even now, on the federal legislative list means that only provinces can legislate on this subject.

One major change this constitutional amendment brought about was that ‘drugs and medicines’ – which was on the concurrent legislative list – was deleted. This showed lack of foresight on the part of our law-makers and their lack of interest in the health sector. The federal government, on the basis of the existence of the concurrent list, had introduced the Drugs Act 1976 (No XXXI); and the Pharmacy Act 1967 (No XI). It had lost jurisdiction relating to both these issues, creating a paralysis for a number of years in the whole country as the drug regulatory authorities were not functioning and the government could not make any modifications in the existing laws.

Mercifully, the law-makers had inserted Article 270AA in the constitution through the 18th Amendment which stated that the federal laws, despite deletion of the concurrent legislative list, could remain in force until repealed or amended by the competent authority. This meant that a law, like the Drugs Act or the Pharmacy Act, can indefinitely remain in force until parliament repeals or modifies it.

However, an anomalous situation resulted after the 18th Amendment because drugs and medicine are areas that require national uniform legislations. Realizing this, the federal government relied upon Article 144 of the constitution under which two or more provincial assemblies can pass resolutions authorising the federal parliament to regulate by law any matter that is an exclusive provincial subject. The provinces passed resolutions authorising the centre to regulate drugs and medicines as it is a subject that requires uniformity throughout the country.

The 18th Amendment also gave the centre the power to continue to legislate on criminal law related matters. Accordingly, the Pakistan Penal Code 1860 (No XLV), one of the oldest laws, remains in force. Its chapter XIV contains sections dealing with offences affecting public health. Sections 272 and 273 make it a crime punishable with imprisonment extending up to six months, or with fine ranging up to Rs1,000, to adulterate any article of food or drink with the intention to sell it. This provision would thus also cover instances where food has decayed by being kept for too long.

The provinces thus have almost a free hand to make laws in relation to health and the federal government can do so too if authorised to by the provinces – as it has done in the case of drugs and medicine. It is now a question of political will to change things for the better as far as the health of the citizens of Pakistan is concerned. The government of Sindh can start the process by helping the children in Thar who are dying by the dozens each week.

The writer is an advocate of the Supreme Court. Email: aj@jillani.org