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The Constitutional 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 those Principles in so far as they relate to the functions of the organ or authority.
The observance of any particular Principle of Policy, however, has been made subject to the availability of resources. In respect of 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 Province, are required to prepare and present to the National Assembly and the Provincial Assembly respectively, a report on the observance and implementation of the Principles of Policy. The presentation is supposed to be followed by discussion on such report.
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. The State so far has been unable to fulfill this responsibility in a satisfactory manner.
One such 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 Principle of Policy is enough to revolutionize the state of affairs in the country.
One excuse that we keep hearing about nowadays about the inaction on the part of the federal government is the Eighteenth 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. Health is not on the Federal Legislative List. This means that only the provinces can legislate on this subject. The deletion of the Concurrent Legislative List means that the federal government can only legislate on subjects which are specified in the Federal List; and the provinces are free to make laws relating to all the remaining subjects.
But believe it or not, this is how the situation has always been like since the introduction of the Constitution in 1973. So the Eighteenth Amendment has not really affected the health sector in any consequential manner.
One major change, however, that this constitutional amendment brought about was that `drugs and medicines’ which was on the Concurrent Legislative List was deleted. This showed the 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, and it created 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 inserted Article 270AA in the Constitution through the Eighteenth 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 means that a law, like the Drugs Act, or the Pharmacy Act, can indefinitely remain in force until the Parliament repeals or modifies it.
However, an anomalous situation had been created. Drugs and medicine are areas which require national uniform legislations. The Constitution provides a way out from such a situation. Under Article 144 of the Constitution, two or more Provincial Assemblies can pass resolutions authorizing the Federal Parliament to regulate by law any matter that is an exclusive Provincial subject. The Center eventually had to ask the provinces to pass resolutions authorizing it to regulate drugs and medicines as it is a subject which requires uniformity throughout the country, and it is not feasible to have different drug laws in each province.
The Eighteenth Amendment under Article 142(b) also gave the Center the power to continue to legislate on criminal law related matters. Accordingly, the Pakistan Penal Code 1860 (No XLV), which is one of the oldest laws still in force, not just in Pakistan but also in India and Bangladesh, remain in force. Its chapter XIV contains sections dealing with offenses affecting the public health. Its sections 272 and 273 make it a crime punishable with imprisonment extending up to six months, or with fine ranging up to Rs 1,000, to adulterate any article of food or drink with the intention to sell it. This provision would thus also cover instances where food has rotten and 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 authorized to do so 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.

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