ISLAMABAD: Refusing to entertain appeals filed by Pakistan Navy challenging recent judgements against the naval farms, sailing and golf clubs in the capital, the Islamabad High Court (IHC) on Thursday observed that a branch of the military was not a ‘legal person’ and any legal action it sought to initiate would have to be approved by the federal government.
A division bench consisting of Justice Aamer Farooq and Justice Miangul Hassan Aurangzeb took up the three identical intra-court appeals filed against recent verdicts issued by Chief Justice Athar Minallah that ordered the Capital Development Authority (CDA) to demolish the navy’s sailing club and take over its farmhouses and golf course.
In the Jan 7 judgment, the IHC chief justice pointed out that “the mandate of the armed forces of Pakistan has been described in Chapter 2 of Part XII of the Constitution. The three main branches of the armed forces are the Pakistan Army, Pakistan Navy and Pakistan Air Force. Article 243 of the Constitution provides that the federal government shall have control and command of the armed forces.”
On Thursday, when the counsel for Pakistan Navy tried to present his argument, the IHC bench inquired whether the federal government had approved these appeals.
Bench asks for re-filing of appeals on matters related to naval farms, sailing and golf clubs
The counsel replied that the appeals were filed on behalf of naval authorities and they had accorded the necessary departmental approvals.
At this, Justice Miangul Hassan Aurangzeb remarked that as per the constitutional scheme, only the federal government could give approval for filing of these appeals.
The counsel then asked the court for permission to amend the petitions and re-file them through the defence secretary.
“You need to file fresh petitions after completing the formalities,” Justice Aurangzeb told the counsel for navy.
The bench also asked the counsel whether Pakistan Navy was a juristic person — non-human legal entity that is not a single person but an organisation recognised by law.
Justice Aurangzeb pointed out that the “armed forces… are not juristic persons and the navy is neither a juristic person, nor is it authorised to file the petition”.
The court also asked Additional Attorney General Qasim Wadud to explain whether the navy could have filed the appeals against the judgement of a single-member bench.
Mr Wadud told the court that the appeals could be filed after seeking permission from the ministry concerned.
In a landmark 45-page judgement, IHC Chief Justice Athar Minallah had ruled that the construction of the navy sailing club and farmhouses on protected land was unauthorised and had directed the CDA to take over the farmhouses and raze the sailing club located on the banks of Rawal Lake.
The court had termed it an irony of fate that “the chief of naval staff and one of the branches of the armed forces i.e. the Pakistan Navy were involved in violating the enforced laws and transgressions from the mandate prescribed under the supreme law of the country, the Constitution.
“The most disturbing factor was the conflict created by one of the branches of the armed forces with the society and its citizens. Any such conflict is intolerable in a society governed under the Constitution.”
Published in Dawn, January 14th, 2022