Construction of Navy Golf Course termed illegal: Army can’t undertake any activity beyond its composition: IHC

ISLAMABAD: The Islamabad High Court (IHC) has said there is no provision under the Army laws which authorises or empowers the Pakistan Army to undertake, directly or indirectly, activities beyond its composition for the purposes of welfare, unless the Federal Government has expressly granted permission to do so.

The IHC 105-page judgment, authored by Chief Justice Athar Minallah, said the Pakistan Army Act 1952, the Air Force Act 1953 and the Pakistan Navy Ordinance, 1961 have been promulgated to regulate the respective branches of the Armed Forces and its discipline. The statutes regulate the discipline and internal working of the respective branches of the Armed Forces but do not empower the officers to undertake any activity beyond the establishments.

The judgment on the petitions for the protection and preservation of the Margalla Hills said: “As a corollary, the Pakistan Army has no power or jurisdiction to, directly or indirectly, engage in business ventures of any nature outside its composition, nor to claim the ownership of state land.”

It noted; “Regrettably, most illegal encroachments in the notified area of the Margalla Hills have been made by State institutions/ entities such as Pakistan Navy, Pakistan Air Force, etc.”

The IHC declared the construction of the Navy Golf Course illegal and instructed the Ministry of Defence to conduct an inquiry into the golf course. The Remount, Veterinary and Farms (RVF) Directorate, an internal office of the General Headquarters (GHQ), had no locus standi nor was it competent to execute a lease agreement of a commercial nature in respect of a property situated in the notified protected and preserved area of the Margalla Hills.

The chief justice also regretted that in the case in hand, the State and its public functionaries failed in protecting, preserving and managing the notified area of the Margalla Hills for the benefit of the present and future generations. “They failed in implementing the enforced laws and thus have caused damage to the environment and the integrity of the ecosystem services and habitats that are home to the native flora and fauna.” The most ironic and disturbing factor is the involvement of institutions of the State in the desecration of the protected and preserved notified area of the Margalla Hills.

The branches of the Armed Forces, the Pakistan Navy and Pakistan Army, by taking the law into their own hands, have violated the enforced laws while the public functionaries responsible for protecting the rights of the people by implementing the promulgated statutes and to hold the perpetrators accountable refused to perform their obligations.

“In disregard to the wellbeing and welfare of the people at large and their constitutionally guaranteed rights, the public functionaries allowed institutions to illegally damage the protected and preserved notified area of the Margalla Hills and thus cause environmental degradation.”

The judgment said it was a classic case of undermining the rule of law and elite capture. The expression “elite” has been defined in the literature of the World Bank as “actors who have disproportionate influence in the development process as a result of their superior, social, political or economic status”.

The IHC said that the enforced laws have not been violated by private citizens, rather, by the institutions and by doing so they have exposed themselves to the consequences. It is now the duty of the State to restore the damage done to the Margalla Hills and take positive measures on the touchstone of the precautionary principle so as to save the notified protected area from further environmental degradation.

The Armed Forces cannot own, acquire or otherwise deal with immovable property. The land vests in the government and is managed by departments and officials who have been expressly designated under the aforementioned laws.

Copyright Business Recorder, 2022