Army can’t engage in business ventures, IHC rules

Court issues 108-page detailed judgement in Margalla Hills case


Hasnaat Malik July 13, 2022
IHC. PHOTO: Islamabad High Court website

ISLAMABAD:

The Islamabad High Court has held that Pakistan Army neither had the power or the jurisdiction to directly or indirectly engage in business ventures of any nature outside its composition nor to claim the ownership of state land, ruling that any such activity was subject to explicit permission by the federal government.

In a detailed judgement issued on Wednesday in a case pertaining to encroachments in the Margalla Hills National Park, the IHC outlined the functions of one of the vital state organs as stipulated in the constitutional provisions.

In the 108-page detailed judgement, IHC Chief Justice Athar Minallah noted that the Pakistan Army Act, 1952, the Air Force Act, 1953 and the Pakistan Navy Ordinance, 1961, were promulgated to regulate the respective branches of the armed forces and their discipline.

The verdict emphasised that the Constitution expressly described two functions of the armed forces – the primary of them being the duty to defend the country against external aggression or threat of war but that too ought to be undertaken under the direction of the federal government.

The direction of the federal government was a precondition, it explained and pointed out that the other function was to act in aid of the civil power when called upon to do so.

Since the command and control of the armed forces vests in the federal government, therefore, the verdict said no branch can undertake any activity or perform functions outside their respective establishments unless expressly directed or called upon to do so.

Read Margalla Hills National Park: IHC halts construction of Defence Complex

“The unique responsibilities have been prescribed under the Constitution and, therefore, obedience to the provisions ibid and law is an inviolable obligation of every branch and member of the armed forces as provided under Article 5," the detailed judgment read.

The judgement said the military’s stance regarding the claimed acres of land was “atrocious and in violation of the scheme of the Constitution and the applicable laws”.

“It is disturbing to note that the enforced laws are being flagrantly violated by institutions in disregard to the scheme contemplated under the Constitution.

“The urge of state institutions to act as a state within the state is obvious from the above discussed facts,” the judgement noted.

It said the acts and stances of the army had “profound consequences” for the rule of law. “They acted on their own and while doing so they have seriously undermined the rule of law in derogation to their declared functions under the Constitution.

“The sanctity of the protected and preserved notified area of the Margalla Hills has been desecrated,” the judgement said.
The judgement further criticised state institutions for their “willful and brazen disregard and abuse of the enforced laws”.

The court also rejected the ownership claim of the Pakistan Army Directorate on 8,068 acres of land in the National Park.
The ruling said the lease agreement of the Farms Directorate of the Pakistan Army with Monal Restaurant was also declared illegal. The report of the Islamabad Environmental Commission was also included in the 108-page detailed decision.

Read More Navy golf course: Govt to challenge IHC verdict

 

The court said the state and government officials had a duty to protect the Margalla Hills.

“It is the responsibility of the state to take action against those who violate the fundamental rights of the people, however, it is ironic that state institutions are also involved in desecrating the Margalla Hills protected area,” the IHC maintained.

The court further stated that the Pakistan Navy and Pakistan Army had violated the law by taking it into their own hands, which was an ideal case of weakening the rule of law.

According to the IHC, the state has a duty to take steps to repair the damage to Margalla Hills to prevent further destruction.

The court had earlier issued a short order on January 11, 2022, wherein it declared that the allotment of 8,068 acres of land to the Pakistan Army in the National Park area of Islamabad was against the law.

"The claim of Remount, Veterinary and Farms Directorate of Pakistan Army, regarding 8,068 acres of land in the notified National Park area is in violation of the Ordinance of 1979 read with the Ordinance of 1960 and the Master Plan,” an 11-page judgment authored by IHC CJ Athar Minallah said.

“The claim is also not in conformity with the enforced laws applicable to the management of lands for the use of the armed forces. The federal government was bereft of jurisdiction to allow the directorate to use 8,068 acres of land in the notified National Park area,” the judgment stated.

The judgment stated that the armed forces and their members take a constitutional oath in the name of Allah to uphold the Constitution and to honestly and faithfully serve Pakistan as required by and under the law.

"Violation of law by members of the armed forces is definitely a breach of their constitutional oath and a transgression from the prescribed functions,” the ruling said.

 

Monal Restaurant

The judgement criticised the Remount, Veterinary and Farms (RFV) Directorate’s conduct and said that there was no evidence to show that it or the General Headquarters (GHQ) had taken the federal government’s express consent.

“The RFV Directorate 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.”

It said that the purported claim of the RFV Directorate regarding its ownership of the 8602 acres of land, which was expressly covered under the notification dated 28-04-1980, issued by the federal government in exercise of powers conferred under section 21 of the Wildlife Ordinance of 1979, was illegal, unconstitutional and without lawful authority and jurisdiction.

Athar Minallah noted that this was ironic because, despite the unambiguous enforced laws, the federal government, the CDA and the board constituted under the Wildlife Ordinance of 1979 refused to exercise their powers and failed in their constitutional as well as statutory duties to safeguard the protected and preserved notified area of the Margalla Hills.

The wanton disregard of the enforced laws by the RFV Directorate and the GHQ for the enforced laws, already highlighted above, has been “disturbing as well as shocking”.

“The officials of the RFV Directorate have definitely abused their influence and power and have exposed themselves to being proceeded against for misconduct. They had recklessly and wilfully taken the law into their own hands while those who had the statutory duty to protect, preserve and manage the notified area of the Margalla Hills did nothing more than hesitantly sending notices as a mere formality,” the judgement said.

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