ISLAMABAD: Refusing to entertain appeals filed by the Pakistan Navy challenging recent decisions against naval farms, yachting and golf clubs in the capital, the Islamabad High Court (IHC) on Thursday said that a wing of the Army is a was not a ‘legal person’ and the demand to initiate any legal action would have to be approved by the federal government.
A division bench of Justice Amer Farooq and Justice Miyangul Hasan Aurangzeb took up three similar intra-court appeals filed against recent decisions issued by Chief Justice Athar Minallah, who ordered the Capital Development Authority (CDA) to demolish navy sailing club and take possession of its farmhouses and Golf Course,
In the January 7 judgment, the Chief Justice of the IHC said that “the mandate of the Armed Forces of Pakistan is set forth in Chapter 2 of Part XII of the Constitution. The three main branches of the Armed Forces are the Pakistan Army, the Pakistan Navy and the 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 Pakistan Navy’s counsel tried to present his reasoning, the IHC bench asked whether the government had allowed these appeals.
Bench asked to re-file appeals on matters related to Naval Farms, Sailing and Golf Clubs
The counsel replied that the appeal was filed on behalf of the naval officers and they had granted necessary departmental approval.
To this, Justice Miyangul Hasan Aurangzeb remarked that as per the constitutional scheme, only the federal government can sanction the filing of these appeals.
The lawyer then sought permission from the court to amend the petitions and re-file them through the Defense Secretary.
“You need to file fresh petitions after completing the formalities,” Justice Aurangzeb told the Navy’s counsel.
The bench also asked the counsel whether the Pakistan Navy is a juridical person – a non-human legal entity that is not an individual but an organization recognized by law.
Justice Aurangzeb observed that “the Armed Forces … are not judicial persons and the Navy is neither a judicial person, nor is it authorized to file a petition”.
The court also asked Additional Attorney General Qasim Wadood to state whether the Navy can file an appeal against the decision of the single-judge bench.
Mr Wadood told the court that an appeal can be filed after taking permission from the ministry concerned.
In a landmark 45-page judgment, IHC Chief Justice Athar Minallah ruled that the construction of Navy Sailing Club and farmhouse on protected land was unauthorized and directed the CDA to take over the farmhouses and destroy the sailing club located on the coast . Rawal Lake.
The court had termed it as an irony of fate that “the Chief of the Naval Staff and one of the branches of the Armed Forces i.e. the Pakistan Navy was involved in violating the applicable laws and contravention of the mandate laid down under the highest 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 14, 2022