A single bench of IHC comprising Chief Justice of IHC Justice Athar Minallah ruled this in his 105-page detailed judgment and regretted that most illegal encroachments in the notified area of the Margalla Hills have been made by State institutions/entities such as Pakistan Navy and Pakistan Air Force.
By declaring the construction of the Navy Golf Course as illegal, the IHC bench directed the Ministry of Defence to conduct an inquiry in this matter. It said that 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 IHC bench said that 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. It added that the statutes regulate the discipline and internal working of the respective branches of the Armed Forces but does not empower the officers to undertake any activity beyond the establishments.
The judgment in the petitions for the protection and preservation of the Margalla Hills said, “As a corollary, the Pakistan Army has no power nor jurisdiction to, directly or indirectly, engage in business ventures of any nature outside its composition nor to claim the ownership of state land.”
The IHC 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. He added, “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.”
He further said that 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.
Justice Athar said that 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.
He further said, “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 that 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.
It added that 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.
The judgment said that the 1973 Constitution expressly describes two functions of the Armed Forces. The primary function or constitutional duty of the Armed Forces is to defend Pakistan against external aggression or threat of war and that too under the direction of the federal government. The direction of the federal government is a precondition.
It further said that the other function is to act in aid of the civil power when called upon to do so. There could be multiple eventualities requiring the Armed Forces to act in aid of the civil power e.g. internal security, natural calamities such as floods, earthquakes etc. The secondary function to act in aid of the civil power is subject to law and can only be undertaken if ‘called upon to do so.’
It continued that in case of both the functions the Armed Forces cannot act on its own. These are the only two constitutional functions mandated to the Armed Forces. 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 IHC bench said that the unique responsibilities have been prescribed under the Constitution and, therefore, obedience to the provisions of the Act and law is an inviolable obligation of every branch and member of the Armed Forces as provided under Article 5.
It further said that the branches of 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 authorised or mandated to undertake, directly or indirectly, any activity such as leasing government land for commercial purpose.
The bench stated that the RVF Directorate nor the GHQ can own or acquire nor manage land given for its use as provided under the Constitution and the laws. The land is allocated by the Federal Government for a particular and declared use of the branches of the Armed Forces.
It noted that the land remains the ownership of the Federal Government or the Provincial Government, as the case may be. It has been explicitly declared in the laws that the nature or character of the land allocated for the use of the Armed Forces cannot be changed without the express permission of the federal government.