Provinces bound to comply with federal law: SHC

KARACHI: The Sindh High Court has observed that it is mandatory for the provinces to exercise their executive authority in a manner that is fully compliant with the federal law and not in a way that impedes or prejudices against the federal legislation and the executive authority being exercised by the federation.

A three-judge bench headed by Justice Mohammad Iqbal Kalhoro through the March 18 short order had declared a set of notifications issued by the Sindh government following a decision of provincial cabinet to lower the passing marks of the Medical and Dental Colleges Admission Test (MDCAT) as void and without lawful authority.

The bench issued the detailed order on Thursday.

The detailed judgement said that irrespective of how the Sindh government had approached the matter and taken decision, the constitutional scheme envisaging obligations of the provinces in certain cases was quite clear under Articles 148 and 149 of the Constitution.

These provisions enjoin the provinces to exercise executive authority in a manner as to secure compliance with federal laws which apply in the province, it added.

Detailed judgement on MDCAT marks issue released

While referring to a judgement of the Supreme Court reported in 1998, the SHC noted that the federation had to regulate a situation that had arisen in which it was to be considered as to how the federal law must be made applicable in the province so that desired results were achieved and the law was made effective in true sense.

“Hence, no room is left, in the light of these provisions, and for foregoing discussion, 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”, it added.

The order further said, quite strangely the Sindh government has only objected to fixing of benchmark (65%) 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.

“This we find rather paradoxical and unsustainable, as on the one hand it has questioned 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 50%”, it observed.

About the contention of advocate general Sindh to question vires of the Pakistan Medical Commission Act, 2020, the larger bench further noted that the SHC had already declared Sections 4 and 18 and admission regulations framed under Section 8 (2) (f) of the PMC, Act as intra vires despite noting in detail including the concerns raised by AG Sindh here, non-compliances of certain provisions thereof relating to formation of the bodies to supervise implementation of the said law, and despite showing qualms over syllabus selected for formation of questions in MDCAT.

“However, the matter is currently under scrutiny in appeal before the Supreme Court, we do not find any reason to proceed to either agree or disagree with or add anything into it for deciding the issue,” it added.

“Last but not the least, we may observe that the impugned notifications, based as they are on the Sindh Cabinet’s decision, from a bare reading 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 of Sindh on the subject, post 18 amendment, empowering the Sindh Cabinet to make the impugned decision to even bear scrutiny of applicability of doctrine of occupied field in this case. We therefore, quash all four impugned notifications dated 07.12.2021 and 31.12.2021 and declare them to be void ab initio having been issued without a lawful authority and of no legal effect”, it concluded.

The PMC had petitioned the SHC against a decision of the Sindh cabinet taken in its meeting held in December 2021 to lower the passing marks for MDCAT-2021 from 65 per cent to 50 per cent for Sindh and consequent notifications.

Published in Dawn, March 25th, 2022