Daily Times

The Islamabad High Court (IHC) Wednesday issued a detailed judgment on the construction of Navy Golf Course in the Margalla Hills National Park and held that the army had no power or jurisdiction to, directly or indirectly, engage in business ventures of any nature outside its composition.

The court, therefore, declared the construction of the Navy Golf Course illegal and instructed the Ministry of Defense to conduct an inquiry into the golf course and administer a forensic audit to assess the damage to the national exchequer.

“Since the command and control of the armed forces vests in the Federal Government; therefore, no branch can undertake any activity or perform functions outside their respective establishments unless expressly directed or called upon to do so. 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 court also rejected the ownership claim of the Pakistan Army Directorate on 8,068 acres of land in the National Park. In the detailed judgment issued by Chief Justice Athar Minallah, 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.

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, says a news report.

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 Pakistan Army nor its officers are authorized or mandated to undertake, directly or indirectly, any activity such as leasing government land for commercial purpose”.

The judgment 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 judgment 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 judgment said. The chief justice criticised state institutions for their “willful and brazen disregard and abuse of the enforced laws”.

“The complacency of state institutions in environmental degradation and their willful disregard for the enforced laws have been obvious during these proceedings, while accountability seems to be alien in the system of governance practiced within the 1400 square miles of the Islamabad Capital Territory,” he observed. Justice Minallah added that the cases on which the judgment was based and their proceedings symbolized the role of state institutions in undermining the rule of law and refusing to protect the assets which belong to the people. Regarding the Margalla Hills, the judgment said the Capital Development Authority (CDA) did not have the power or jurisdiction to interfere in matters pertaining to them and thus, commercial activities such as construction of buildings and food outlets were in violation of the relevant laws. “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 CDA was either complacent or seemed to be helpless,” the judgment pointed out.