Corona Epidemic and Constitutional Scheme – A Legal Perspective

Corona virus first came into notice in China and ostensibly it spread to the rest of the world from there. At the onset of the outbreak, Pakistan successfully controlled it initially by regulating the flights and passengers from China. In past, SARS infected most of the nations but its spread to Pakistan was contained by employing the simple method of border control. It was all fine till travelers from Iran, Saudi Arabia and other countries (except China) started pouring in and brought the virus to Pakistan. Consequently, what we are looking at now is a pandemic growing at an exponential rate. Whereas nations around the globe are trying to flatten to curve to bring it within the handling capacity of their respective health systems, we don’t have much of such capacity in comparison to the size of our population and hoping that our people turn out to be more virus resistant being previously exposed to malaria and of younger age profile. Leaving aside the point scoring on political grounds amongst different parties, since our fist and perhaps only line of defence i.e. border control was compromised, it is important to dissect the issue of quarantine and related borders controls from a purely legal and constitutional standpoint.

The Constitution of 1973 in its Fourth Schedule or the Federal Legislative List expressly assigns certain legislative and executive responsibilities to the federal government. According to Federal Legislative List, not only border control and admission from all channels including marine (Entry 20), aviation (Entry 22), land and pilgrimages to places beyond Pakistan (Entry 6) squarely falls in the jurisdiction of the federal government but the port quarantines and hospitals connected with the port quarantines (Entry 19) are also federally regulated. The plain reading of law makes it abundantly clear, that if the disease is emanating from a foreign destination, it is the exclusive jurisdiction and responsibility of the federation to take care of it. The provinces should not be trolled, it is Federal Government which controls the entry and exit from the country. The devolution or 18th Amendment has not tackled this subject in any way. Even before independence, ports and connected quarantine hospitals were federal subjects under the Government of India Act, 1935.

Legally speaking, provinces can charge the bill of these services being rendered by them to federation for a subject for which federation is legally responsible. It is to be borne in mind that the financial powers of the federation extend to the subjects enumerated in the federal legislative list and likewise the principle applies to the provinces as well.

Not only the Constitution, the federal government is responsible to take necessary actions under The Ports Act of 1908, The Civil Aviation Ordinance 1960 and The Epidemic Diseases Act 1897.  Three provincial legislatures have also passed the resolutions under Art 144 of the Constitution and have assigned the subjects of medicine and drug control to the Federation. Besides, all the provinces have passed resolutions under Art. 144 and assigned the subject of Disaster Management to the Federation. These assignments of the subjects of the medicine do not confer the responsibility of healthcare on the Federal Government, nor does it denude the provincial government of its power, but it does provide the authority to the federation to ensure regular supplies of the drugs and medicine. The federal government is failing on this count also.

The apex court has placed the responsibility of protecting the right to life on the Federal Government: "The right to life is a positive right, it placed a positive duty on the state to act. Therefore, the State, which undoubtedly includes the Federal Government as per Article7 of the Constitution, is duty-bound and is under an obligation to guarantee the enforcement of the fundamental rights enshrined in the Constitution, with the most important one being the right to life...... The right to life undoubtedly entails the right to healthcare which means that everyone has the right to highest attainable standards of physical and mental health and this comprises of access to all kinds of medical services including but not limited to hospitals, clinics, medicines and services of medical practitioners which must not only be readily available and easily accessible to everyone without discrimination."  (emphasis provided). This assertion by Federal Government that healthcare is a provincial responsibility and so is quarantine or pandemic spreading through national borders is therefore untenable.

The law and the precedent apart, the reality is that provincial governments are dealing with a peril which could have been contained on borders. They have been unduly burdened because federal government was not responsive enough in assuming its responsibility and blocking the disease at the border. This is indeed not the time to start a blame game or to pass the buck, an effective emergency response demands coordinated approach between federation and provinces. Having said, it is however critical to be crystal clear about who is or was supposed to do what as per legal scheme of things.

Provinces have dealt with the situation commendably, especially Sindh, Punjab and KP. Sindh was first to smell the rat and failure of the Federal Government; worthy Chief Minister supported by its party dealt the situation with great mastery. The Provincial Government of Punjab has promulgated new law to replace the archaic 62 years old law on the subject, besides doing necessary actions to control the situation. Under the repealed the Punjab Epidemic Diseases Act 1958, the Deputy Commissioner had unbridled powers to frame the regulations. The Punjab ordinance has only structured the existing, discretion provided to the Deputy Commissioner and has further provided the DC powers to provide relief. It is a welfare statute and does not govern the civil law or criminal law rights inter se the citizenry. In such statutes, oversight of the superior judiciary through judicial review is an accepted norm and administrative expediency requires that jurisdiction of the civil courts be curtailed. It is very heartening to note that this aspect has also been taken care of. Otherwise, there was a risk that the entire civil administration would have gotten embroiled in unnecessary fact finding proceedings of the trial courts. The statute provides for policy decisions which are very difficult to challenge or adjudicate on the basis of isolated incidental evidences. Hence, judicial review by the High Court, or in case of appeal by the Supreme Court, will serve the purpose well.

As a country, we must not miss the opportunity of learning lessons from this experience and some of those key lessons would come from legal and constitutional domains and the interplay of those with the administration.

The writer is Ch Sultan Mahmood Advocate Supreme Court, He is a practicing lawyer since 2004 and served as Assistant Advocate General for Punjab for about 3 and half year. He can be reached at [email protected].