The Bench, the Bar and ad hoc judges
How will the Judicial Commission proceeds with ad hoc appointments if the required consensus lacks?
By Reema Omer
With the controversy over prosecution of superior court judges for contempt of court still brewing in the background, the relationship between the bench and bar in the country has received another blow: on the 14th of February, the Supreme Court of Pakistan passed a unanimous resolution extending Justice Khalil-ur-Rehman Ramday’s tenure as an ad hoc judge for one year and appointing Justice Rehmat Jafri as an ad hoc judge for two years.

Yeh Woh
The Clifton green
By Masud Alam
Public parks are a natural habitat for the homeless and the dispossessed. And, therefore, this old man in rags, carrying all his belongings in a greasy and patchy cotton sack, seems right in his elements hunched against a tree trunk, studying its bark in a small, nondescript park in Clifton.

politics
Gun-point agenda
The Punjab seems to be becoming the next political battleground after PPP fails to deliver on PML-N’s agenda
By Waqar Gillani
The threat by Pakistan Muslim League-Nawaz (PML-N) to oust the Pakistan People’s Party ministers from the provincial cabinet after the latter failed to fulfill former’s charter of demands based on 10-point agenda may plunge the country into political crisis in the near future.

All roads lead to Kurram
The peace truce between Sunnis and Shias in Kurram Agency is being celebrated and looked at with suspicion
By Zia Ur Rehman
Although Sunni and Shia warring tribes of Kurram Agency have agreed to end their four-year long conflict through a government-backed jirga of tribal elders, it is yet to be seen how long the deal holds ground and helps maintain normalcy in the area.

Healthy move
Stakeholders are bracing for transition of Health Ministry to provinces with concerns
By Shahzada Irfan Ahmed
The devolution of Health Ministry to provinces under the 18th Amendment to the Constitution of Pakistan is on the cards. All the stakeholders are bracing for the upcoming transition which is likely to take place by mid 2011.


Long live the office

What does extension in service for officials signify -- political favours or good governance?

By Alefia T Hussein

In a surprise move on Feb 19, 2011, the National Judicial Commission put off a second extension for Justice Khalilur Rehman Ramday and reappointment of retired Justice Rehmat Hussain Jafri as ad hoc judges of the Supreme Court, seemingly because of opposition from the lawyers’ community.

Reportedly, the decision to defer the contentious appointments of ad hoc judges came after Pakistan Bar Council (PBC) vice-chairman Latif Afridi and Supreme Court Bar Association president Asma Jehangir met the SC Chief Justice Iftikhar Mohammad Chaudhry on Feb 18 -- to express dissatisfaction of the lawyers’ community over a resolution passed by a full court meeting of the Supreme Court on Feb 14 for a one-year extension in Justice Ramday’s term and the ad hoc appointment of Justice (retd) Jafri for two years.

However, the commission unanimously approved a further one-year extension of service of six additional judges of the Sindh High Court whose tenure ended on Feb 18 and let go the names of three other additional judges of the same court.

As one turns away from the judges re-appointments issue, one faces the termination of illegal extension of civil bureaucrats whom the Supreme Court had directed the government to dismiss.

The list of bureaucrats includes bigwigs such as FIA Director General Waseem Ahmad, head of staff at the presidency Salman Farooqui and Secretary to the President Asif Hayat. But Prime Minister Yousuf Raza Gillani, who had granted extensions to them initially using his discretionary powers, is now reluctant to remove them. He defends these extensions as "a pioneering step towards good governance".

The court has found several bureaucrats to be serving in violation of existing laws on extensions of service. Some retired civil servants have been granted contracts that do not comply with federal employment regulations while others have been granted service extensions beyond their superannuation age. Although in compliance with the court’s orders, the PM has dismissed at least 10 officials, at least 30 other officials have yet to receive their terminations. Prominent among them are Defence Secretary Lt-Gen (Retd) Syed Athar Ali, Budget Coordinator Nasrul Aziz and Joint Secretary Ministry of Finance Talib Baloch.

The above recap of last week’s series of events reflects an interesting pattern: that we have an unconcealed fetish for ad hoc appointments of retired government officials. And fetish it is. Even in the armed forces: Take army chief General Ashfaq Parvez Kayani and Director General Inter-Services Intelligence (ISI) Lt-General Ahmad Shuja Pasha. These appointments have not been challenged in the court; at least not as yet.

So, what does the practice of granting re-appointment beyond the civil servants’ superannuation age signify? Does it lie within the existing rules? Experts say so far as the implications of extensions in army or judiciary are concerned they are politically consequential and become precedents in legal terms. For example, Justice Ramday’s extension, if granted, will be seen as a precedent. Further, they point out, since the chief justice initiates such nominations, a judge getting appointed as ad hoc will always be seen as subservient to the chief which is against the principles of independence of judiciary.

Similarly, a general granted extension will have more political repercussions than legal.

Political analyst Shafqat Mahmood agrees that arbitrary appointment made by heads of government institutions is bound to carry political implications. "They are likely to be perceived as personal favours," he iterates. Besides, he adds, the distinction between normal cadre and ex-cadre in civil service must be made clear. "Even though such appointments are not unconstitutional, at present there are no transparent mechanisms concerning service extensions of government officials. Often there is no justification for granting an extension or contract. We are told that the workload demands extension and re-appointment. Honestly, I fail to understand this phenomenon. Why can’t new jobs be created to ease the pressure of work?"

Executive director of Pakistan Institute of Legislative Development and Transparency (PILDAT), Ahmed Bilal Mehboob, rubbishes the PM’s claims of "a pioneering step towards good governance" because he says, "I do not see any connection between ad hoc service extensions and good governance."

Presently, he opines, the appointment processes are informal and the work undertaken opaque and not clearly linked to the results. "This reflects weak succession management practices in the government institutions. There is nothing drastically wrong with granting officials service extensions and hiring them on contract but it must be done systematically and institutionally. Perhaps, the Public Services Commission of Pakistan should be assigned a more pro-active role in this process."

Also, he says, "contractual re-appointments are usually better remunerating; which in my opinion slays the competitive spirit among the subordinates particularly if they do not have the right connections or sifarish to place themselves in an influential position. Contractual appointments burden the national exchequer too."

 

The Bench, the Bar and ad hoc judges

How will the Judicial Commission proceeds with ad hoc appointments if the required consensus lacks?

By Reema Omer

With the controversy over prosecution of superior court judges for contempt of court still brewing in the background, the relationship between the bench and bar in the country has received another blow: on the 14th of February, the Supreme Court of Pakistan passed a unanimous resolution extending Justice Khalil-ur-Rehman Ramday’s tenure as an ad hoc judge for one year and appointing Justice Rehmat Jafri as an ad hoc judge for two years.

The resolution stated that this decision was taken to "clear the backlog of the pendency (of cases)" in the Supreme Court, and that the two Justices had also agreed to the same "in view of wider institutional interest".

The resolution was immediately rejected by the Bar. The President of the Supreme Court Bar Association, Asma Jahangir, stated that if this decision was carried through, it would be strongly opposed, while the Pakistan Bar Council’s executive council called the resolution unconstitutional and demanded an elimination of ad hocism in the judiciary in all forms. Asma Jahangir and Vice-Chairman of the Pakistan Bar Council, Latif Afridi, also met Chief Justice Iftikhar Muhammad Chaudhry and expressed their reservations about the resolution.

The very next day, however, the Judicial Commission of Pakistan, constitutionally empowered to appoint ad hoc judges in cases of urgent need along with the President, delayed the appointments of Justice Ramday and Justice Jafri after it failed to reach a consensus on the matter. Since five of the nine members of the JC are judges of the Supreme Court and have previously agreed to the appointments in the SC resolution, it seems unclear how the Judicial Commission would proceed if the remaining four members, the minority, remain opposed to the ad hoc appointments.

Under the Constitution of Pakistan, the appointment of ad hoc judges is a legitimate practice. Article 182 clearly empowers the Chief Justice, in consultation with the Judicial Commission and with the approval of the President, to appoint retired judges of the Supreme Court as ad hoc judges if it is required to increase temporarily the number of judges of the Supreme Court for a necessary time period.

However, the Supreme Court judgment in the Al-Jehad case, which is widely celebrated in the legal community, clearly expressed disapproval at the practice of appointing ad hoc judges, and held that such appointments should only be made "when it has become imperative to increase temporarily the existing strength of the Judges of the Supreme Court" and not when permanent vacancies in the court exist. The judgment warned against misuse of the provision and expressed concern about the detrimental impact this practice has on the independence of the judiciary.

It also reminded us of how temporary judges are used as a tool by military dictators to change the composition of the court to suit their needs and how India, which has a similar clause as Article 182 in its Constitution, has never appointed ad hoc judges in the Supreme Court. The overall tone of the judgment was against the appointment of ad hoc judges in principle, even if legally the same was allowed by the Constitution.

The Supreme Court’s concerns expressed in the Al-Jehad case make sense even today. The most integral aspect of judicial independence is security of tenure, which means that Supreme Court judges are appointed for life (till they retire), and they may only be removed from office in cases of grave misconduct or incapacity. Such security is essential to ensure that judges decide cases free from any undue influences or fear, even if certain decisions may be politically or popularly opposed. Ad hoc judges, on the other hand, are by definition temporary, making them vulnerable to external pressures.

It is also surprising that the Supreme Court resolution did not specify why it was "imperative" to appoint Justice Jafri as an ad hoc judge for two years and re-appoint Justice Ramday for another year -- "clearing a backlog of cases" does not seem urgent enough to meet the conditions laid down in the Al-Jehad case and is also dangerously vague, leaving the door open for future Chief Justices to keep extending the tenures of justices they like through ad hoc appointments.

The Supreme Court’s manner of appointing ad hoc judges by a full court resolution has also been the subject of much critique. As stated by Asma Jahnagir, "The Supreme Court’s job is to pass judgments, not resolutions." Since Article 182 only asks for the Chief Justice to initiate the request for appointments in the Judicial Commission (the Constitution does not envision the full court’s involvement in the matter), many lawyers express concern that passing the unanimous resolution was a "show of strength" by Supreme Court meant to pressurise the president to approve the appointments.

A petition by the Wattan Party has also been filed in the Supreme Court challenging the resolution, which ironically has been passed by the Court itself!

Pakistan’s judiciary is going through a critical phase where it must find the right balance between asserting its independence and becoming authoritarian. Initiating contempt proceedings against sitting judges of the superior courts and passing a resolution to appoint ad hoc judges in the Supreme Court are causing cracks in the relationship between the Bench and Bar to deepen, further disillusioning those who believed the reinstatement of Chief Justice Iftikhar Chaudhry would strengthen the judiciary and rule of law in Pakistan.

How the Supreme Court proceeds with ad hoc appointments if the Judicial Commission fails to come to a consensus would play a crucial role in shaping the perception of the judiciary, both in the eyes of the people are well as the Bar.

 

Yeh Woh

The Clifton green

By Masud Alam

Public parks are a natural habitat for the homeless and the dispossessed. And, therefore, this old man in rags, carrying all his belongings in a greasy and patchy cotton sack, seems right in his elements hunched against a tree trunk, studying its bark in a small, nondescript park in Clifton.

What’s unusual is some of his belongings and what he uses them for.

Baba Ji has no name and is happy with any title anyone chooses to address him with. He doesn’t get to be addressed very often though, as he prefers conversing in monologues. Long, passionate speeches in fact that he doesn’t like interrupted. But conversation time is after sunset. He spends his day working on the park, which is his home, his work place, and his hang-out.

The only possessions of value in his sack are cans of paint, brushes of various size and thickness, and a half bottle of whiskey. He employs them all in carrying out his self-commissioned work, which is beautification of the park. A swig from the bottle, a stroke of red on the tree trunk or a splash of green on the thick roots lying over-ground … and so he goes about assigning fresh bright colours to fading old nature.

Next to the main entrance is his favourite corner. He uses the periphery wall as his canvas, a natural alcove in the old peepal tree as his doll house, and pieces of broken clay pots as ornaments. He has decorated the benches with intertwining vines, even painted the remaining half skeleton of what must have been once a monkey bar. He looks nothing like M. F. Hussain despite his white flowing beard, and perhaps because of that takes his work more seriously, poring over each detail for hours.

He shares this large, green space with Chodri, a friend of mine with his own set of fetishes: walking barefoot and harassing park-goers into picking out trash. "Here sir, you dropped this," he respectfully hands the man a still-smouldering cigarette butt while fixing him with a punishing stare. Or picks up a pet’s dropping with a discarded plastic bag and insists that the lady holding the leash carry the stinking luggage to a waste bin.

The two of them work separately as if unaware of each other, all through the day, but end at the same spot on the grass when the day ends. As the sun goes down, a stream of disciples starts arriving. It’s not clear to a casual visitor like myself if they are disciples of Baba Ji or Chodri but going by the protocol observed at the gathering, Baba Ji leads the conversations, Chodri everything else.

"They say we gave you freedom. I tell them to stuff it in the - - - of their mothers. I am free to return your freedom without thanks. Thank you, and your mothers. If god is watching, only if god is watching, I dare to say this. Does god wear sun glasses? How many moons are shadowing the suns? Quaid e Azam has the answers, but he no talk to us. He only speak English and he no talk to lowly - - - people like us. He is a genterman," Baba Ji is railing against ‘them’ without giving any clue as to who they may be. And in the spirit of Punjabi mysticism, he peppers every sentence with swear words, mostly starting or ending with ‘mother’ or ‘sister’.

Chodri picks up the boxed Millenium 12 years old bottle from the middle of the circle and pours out for the two of us. No one else expects to share, neither is offered. It’s a BYO party. Some in the circle have brought cheap local whiskey which they are sharing with Baba Ji. A young man brings Chitrali hash and keeps rolling joint after joint, for anyone in the group to enjoy.

Cheers, Chodri and I clink glasses.

But before I can take a sip, I spot a uniformed policeman walking in our direction. I look around in panic: Baba Ji is talking animatedly, thick clouds of hash smoke hang above us, whiskey bottles and glasses are lying all around, and no one is paying attention to the enforcer of a law we are in the process of breaking.

The policeman is standing over us now. "Assalam-o-Alaikum," he greets loudly, then bends down and kisses Baba Ji’s hands. The artist smiles, pats his shoulder affectionately and goes back to his speech: "… they say we are watching you. I say I’m watching you too. If you have two eyes, I have three, one in my - - - ."

The policeman joins the circle and is promptly passed a joint. He looks longingly at the Millenium bottle, then closes his eyes and takes a long greedy puff.

[email protected]

(Concluded)

 

politics

Gun-point agenda

The Punjab seems to be becoming the next political battleground after PPP fails to deliver on PML-N’s agenda

By Waqar Gillani

The threat by Pakistan Muslim League-Nawaz (PML-N) to oust the Pakistan People’s Party ministers from the provincial cabinet after the latter failed to fulfill former’s charter of demands based on 10-point agenda may plunge the country into political crisis in the near future.

The PML-N, after sidelining the PPP from the Punjab government, is all set for running its affair with the help of "Unification Group" -- a divided block of PML (Quaid-e-Azam) -- which has been allotted separate seats on the Punjab Assembly floor. The PML-N has also been indicating if the government fails to deliver, it would be time to seek "fresh mandate" from the people.

The broader agenda of PML-N includes transparent use of defence budget, transparent probe into assassination of Akbar Bugti and Benazir Bhutto, elimination of corruption and breaking the begging bowl, etc. The broader agenda, expected to become a part of the PML-N manifesto in the next general elections, seems a bid to exert pressure on the PPP government and dismantle the image that PML-N is a ‘friendly opposition’.

Though PML-N is not in a mood to initiate any agitation movement or a call for fresh mandate, it seems setting a preamble for the next election by increasing its opposition gradually till the announcement of the next elections.

"It seems that even by parting ways with the PPP in the Punjab government, the PML-N does not seem in a mood or position to start any immediate campaign against the federal government of PPP," views Suhail Warraich, senior journalist and political analyst.

"The new scenario may give PPP and PML-Q an opportunity in the Punjab to stand together in the assembly with a hawkish posture to confront the ruling PML-N. It is also expected that the PML-N will be giving tough time to the ruling setup in the National Assembly," he adds.

"The political temperature will further rise and allegations would be exchanged against each other bringing the political atmosphere of 90s back," Warraich foresees, adding, "The situation my give benefit to the third power if the political wrangling lingers on." He also fears that the hot political situation may cut short the tenure of assemblies and there could be a call for general election, may be in the fourth year.

Nawaz Sharif, while presenting the party’s 10-point agenda on January 4, recalled that he had reached an agreement with Asif Ali Zardari on March 9, 2008, but the commitment was not honoured. "In the last three years, we kept drawing the attention of President Asif Ali Zardari and Prime Minister Yousaf Raza Gilani to the agreement to check corruption and bad governance but to no avail," PML-N senator and spokesperson for Sharif, Parvez Rasheed, says.

"There have been various ups and downs in relations between the two parties, especially in the post-BB period where PML-N seemed uneasy and kept complaining about lack of trust," says political scientist Dr Farooq Hasnat. "The trust deficit kept increasing while the country was faced with terrible energy crisis, poverty and bad economic conditions."

He says the PML-N does not seem ready for fresh elections. "Furthermore, the country’s security, economy, governance and war on terrorism do not allow any such move of mid-term polls. If this happens in desperation, no party will be in a position to sweep the polls and would rely on small coalition partners."

Starting with settling the government matters in the Punjab, the PML-N needs to do a lot of homework in other provinces where it has no clear majority.

Dr Hasnat says though the hardliners on both sides are pushing the parties to take extreme position, the PML-N seems unable to dislodge the government with number game. "But they can create problems and keep on mobilising public opinion against the PPP. These are the moves to get political mileage from the current situation."

Though PPP is still sticking to its policy of "national reconciliation" and intends not to start any move against the PML-N in the Punjab, it will get a fair opportunity to raise its independent voice against the PML-N in the Punjab, where the party needs to do lot of homework for the coming elections.

Will this tussle provide an opportunity for both the parties to prepare themselves for the next elections making Punjab the real political battlefield?

 

Quaid’s 10 points

1- Withdrawal of increase in petroleum prices, mechanism to control electricity and gas prices. (Partially completed).

2- Effective measures to control corruption, including ouster of corrupt ministers and corrupt officers from the government departments. (Partially completed).

3- Measures to provide relief to masses by checking price hike. (Yet to be completed).

4- Implementation on decisions of the Supreme Court, including its verdict against the NRO. (Yet to be completed).

5- Thirty per cent reduction in the government’s development expenses. (Partially completed).

6- Reconstitution of the Election Commission. (A parliamentary committee has been set up to take up the matter).

7- Recovery of loans. (Yet to be completed).

8- Ensuring security of the country. (Partially completed).

9- Strengthening the standing committees of two houses of the parliament. (Yet to be completed).

10- Transparent probe into scams of the Punjab Bank, Insurance Corporation and Steel Mills. (Yet to be completed).

 

All roads lead to

Kurram

The peace truce between Sunnis and Shias in Kurram Agency is being celebrated and looked at with suspicion

By Zia Ur Rehman

Although Sunni and Shia warring tribes of Kurram Agency have agreed to end their four-year long conflict through a government-backed jirga of tribal elders, it is yet to be seen how long the deal holds ground and helps maintain normalcy in the area.

Kurram, one of Pakistan’s seven tribal agencies, borders Khost, Paktia and Nangarhar in Afghanistan and Khyber, Orakzai and North Waziristan agencies in Pakistan. Unlike in other tribal agencies of Fata, sectarian tensions are the main drivers of militancy in Kurram Agency.

"Since 1980s, deadly sectarian clashes have been taking place in Kurram. However, the situation worsened following the emergence of different groups of Taliban in South and North Waziristan, Orakzai and Khyber Agencies," Aqeel Yousafzai, an expert on security issues in tribal areas, tells TNS. "The conflict was brought to Kurram by militant groups from North and South Waziristan and Khyber agencies in 2006. Shia tribes had also established their own lashkars (tribal militias) to defend themselves, but these lashkars are no match for the Taliban. More than 3,500 people had been killed, 50 villages torched and thousands of people displaced in sectarian clashes in Kurram between 2007 and 2010," says Yousafzai, who has also authored two books on militancy in tribal areas.

Over the years, the Shias of Kurram accused various Pakistani and Afghan Taliban groups, including the Tehreek-e-Taliban Pakistan (TTP), of violence and blamed the Pakistan security agencies for lending support to their rival Sunni militant groups. The Sunnis had been saying that Iran was providing arms and money to the Shia militants in Kurram.

The outside militant groups active in Kurram are the TTP, the Orakzai Taliban and the Afridi Taliban which had killed hundreds of Shias and Sunnis. In October 2007, the first Waziristan Taliban lashkar, comprising 400 Mehsud militants, was sent to Kurram by the then head of the TTP, Baitullah Mehsud. Qari Hussain, an anti-Shia commander of the TTP, commanded the lashkar and torched villages and killed dozens of Shias.

After two months, Hussain returned to South Waziristan and Hakimullah Mehsud, the then TTP commander for Kurram, Khyber and Orakzai agencies, sent hundreds more militants under the command of Faqir Alam Mehsud to Kurram to fight against Shia lashkars. "Faqir Alam Mehsud, reputed for his brutalities, personally beheaded at least 100 Shias from Kurram, along with a few Sunnis for cooperating with Shias," a Taliban fighter under his command informs TNS.

Orakzai TTP head Mullah Noor Jamal (alias Mullah Toofan) also brought hundreds of his militants to Kurram to take part in the sectarian violence. Different Afridi militant groups, including Tariq Afridi’s TTP Darra Adam Khel, Mangal Bagh’s Laskhar-e-Islam and Haji Mehboob’s Ansar-ul-Islam, also sent hundreds of militants to fights against Shias.

Although Kurram Shias are reluctant to disclose information about Shia militant groups; they have two militant groups active in Kurram -- Mehdi Militia and Kurram Hizbullah.

During the last four years, the roads in Kurram Agency, especially Thal-Parachinar Road connecting Kurram with Peshawar, had remained closed and people had been trapped in their areas. The Shia community as a whole and some Sunni tribes like Mangal in Upper Kurram find it extremely difficult and risky to move out of Kurram Agency. They were not able to travel on the Thal-Parachinar road as it was controlled by Taliban militants. Shias were compelled to use only one road which runs through the Afghan cities of Khost, Gardez, Kabul and Jalalabad.

After two years of negotiations by a jirga, comprising 220 elders and politicians of Fata, a peace truce between Sunnis and Shias was announced at Parachinar on February 3. According to the agreement, all the main roads, including the Thal-Parachinar road, will be opened for traffic while safe return of the forcibly displaced tribesmen to their homes will be ensured by the government.

"The natives of Kurram have been waiting for the restoration of peace for years, and after the truce, they would live like brothers again," says Malik Waris Khan Afridi, a former federal minister and head of the jirga. Haji Munir Orakzai and Sajid Hussain Turi, elected parliamentarians from Orakzai and Kurram agencies respectively, also played a key role in brokering the peace truce. "Tribesmen across both sects assured us of their support to the peace accord while the government will financially compensate the affected people," Waris Afridi informs TNS.

A few days after the agreement, the TTP Kurram head, Fazal Saeed, told a press conference that his organisation would extend all-out support to the political administration and security forces to implement the peace truce and would punish violators if the government or jirga members failed to do so. "The TTP’s statement of support for peace in the area redefines the role of the militants and most dangerous villains are now becoming heroes involved in maintaining peace in the agency," says Ashfaq Turi, an elder of Shia Turi Bangash tribe of Kurram Agency.

"Everybody is happy and celebrating the peace truce by distributing sweets and dancing the Atanh (Pashto traditional dance) in Parachinar," a Parachinar-based journalist tells TNS.

The peace agreement came amid reports by the Pakistani and international media that the Haqqani Network (HN), a powerful Afghan militant group based in North Waziristan, had brokered the deal in return for a new safe haven and right of passage into Afghanistan. The reports of HN’s involvement had been privately confirmed by members of the jirga. International media had reported that Ibrahim Haqqani and Khalil Haqqani, sons of HN’s head Jalaluddin Haqqani, had participated in two rounds of negotiations in September 2010, but the politicians and jirga members involved in the talks had dismissed the report as "a propaganda".

The growing number of drone attacks and American pressure on the Pakistani government to begin a military operation in North Waziristan had increased the strategic significance of Kurram agency, particularly for the TTP and the HN. Experts believe the militants will not only take refuge in this area in case of an operation in North Waziristan, but will also use the area as junction to go onward and back in tribal agencies, settled districts of Khyber-Pakhtunkhwa and provinces of Afghanistan.

The writer is a journalist and researcher and works on militancy issues.

Email: [email protected]

 

Healthy move

Stakeholders are bracing for transition of Health Ministry to provinces with concerns

By Shahzada Irfan Ahmed

The devolution of Health Ministry to provinces under the 18th Amendment to the Constitution of Pakistan is on the cards. All the stakeholders are bracing for the upcoming transition which is likely to take place by mid 2011.

While there is little opposition to the provinces’ control over such an important subject, there are a few concerns which have been raised in this regards. These include ambiguities in the process of registering drugs, fixation of medicine prices, quality control, future of national health programmes and the vertical programmes -- many of them financially dependent on foreign funding -- and so on. The control of national medical institutes, lack of financial resources to take up new tasks and transfer of assets are in addition to these issues.

National Assembly Standing Committee on Health Chairman Dr Nadeem Ehsan says that contrary to the widespread impression there is no dispute among the political parties on the spirit of devolution. "In fact, the debate is about how to make the transition smooth and find a middle way where there’s a need of that," he tells TNS. He says the amendment has been introduced unanimously and it is binding on all the parties to struggle for its implication.

The strongest protest has come from the Pakistan Pharmaceutical Manufacturers Association (PPMA). The body believes the devolution of power to the provinces to register and price drugs and keep a quality check on them will be a big mistake. Under the existing mechanism, it is the Federal Health Ministry which fixes medicine prices which are uniform all over the country. A manufacturer who has invested heavily in research and product development has the right to charge more than the lateral entrants who sell the same salt with a different name.

PPMA Chairman Haroon Qasim tells TNS that presently drugs are registered by the Drug Registration Board of the Federal Health Ministry. He says the board consists of 21 experts who examine the safety, efficacy, quality and economy of a drug before recommending it for registration. "The board constitutes professors, pharmacists, health professionals etc and it is next to impossible to influence them."

He refutes charge that big companies have control over the Federal Registration Board and feel weakened in the emerging scenario. "This assumption is irrelevant as 95 per cent market share already belongs to 100 big companies and the remaining 5 per cent is divided among the hundreds of small companies."

Haroon Qasim says the process of drug registration takes 8 to 12 months during which the ministry follows all the procedures and ensures all term and conditions are fulfilled. He suggests establishment of a National Drug Authority (NDA) to handle matters like licensing, registration and pricing of drugs.

He cites the example of Federal Drug Agency (FDA) of the US which looks after these matters despite the fact that its 52 states are highly independent in that country. Besides, he says, in the European Union (EU) there is single drug policy for different countries whereas in Pakistan, ground is being prepared to have more than half a dozen such authorities.

Haroon Qasim fears that the transfer of these powers to provinces may result in price variations and compromise over quality. His point is that it had taken the Federal Health Ministry more than four decades to acquire expertise in these fields. Expecting the provinces to develop the expertise in days is unrealistic, he says, adding: "If this happens there would be difference in the prices of same medicines in different provinces, their unchecked export, cross-border movement of drugs, compliance issues, undue hassles to register same name in different provinces etc."

The issue of non-payment of salaries to Lady Health Workers (LHWs) by provinces is another cause of concern. The provinces say the LHW programme is the domain of the federal government and that they will be in a position to decide once the Health Ministry is devolved to them.

Officials in the federal and provincial health departments are reluctant to speak on record on "these constitutional matters". The elected representatives, they say, are the ones who can praise or condemn the decision or suggest improvements in it.

However, a provincial health official tells TNS on condition of anonymity that the provinces fear they will be given responsibilities sans required funds. For example, he says, "the provinces are worried about managing the expenses of national health programmes like LHWs, national polio and hepatitis control, national TB control programme, national malaria control programme, national programme for family planning and primary healthcare, prime minister’s programme for prevention and control of hepatitis in Pakistan and the national AIDS control programme."

He adds the transfer of tertiary care hospitals, institutes and several centres of excellence are also being mulled. These include National Institute of Child Health (NICH), National Institute of Cardiovascular Diseases, Central Health Establishment and others.

The National Assembly Standing Committee Chairman Dr Nadeem Ehsan tells TNS the body has involved all the six provincial health secretaries in consultations over the issue. "The recommendations given by them are being compiled and will be submitted to the implementation commission on the 18th Amendment."

Nadeem Ehsan says he believes the provinces can very well run the national and vertical health programmes as they are already running themselves. "The doubts, if any, are about the availability of funds to them. If this aspect is covered, all of them will take charge happily."

Against this backdrop, the proposal from Federal Secretary Planning and Development Sohail Ahmed seems highly relevant. He has suggested that a complete study should be conducted on the impact of devolution on the health sector and an approval sought from the Council of Common Interest (CCI). Under this approval, if approved by the CCI, the devolved ministries may be funded by the federal government for another four years.

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