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Wednesday January 19, 2022

Beyond naval farms

January 15, 2022

The science of the law is not advanced by coining entirely new concepts – because that, in the world of law, would be heresy.

This doesn’t mean there are no advances at all in this field. The law is advanced when a jurist applies old legal concepts to a given set of facts and produces results which had previously been seen as impossible. It often takes a stroke of genius to get there. But when you look backwards, even the most surprising legal conclusions seem irresistible and simple. That is what we see in a judgment recently authored by the Islamabad High Court in the case of the Naval Farms and the Naval Club.

This was a petition where the court was called upon to judicially review the emergence of the real-estate venture called Naval Farms Islamabad. The court declared the entire venture as illegal and unconstitutional. This, in itself, would not have been such a big thing. The more significant part is the legal reasoning adopted by IHC Chief Justice Athar Minallah, which in fact cuts at the very existence of the military’s business enterprise.

In its 45-page long order, the court has declared unconstitutional the mutation of 2400 kanals of Islamabad land in the name of an office of the headquarters of the Pakistan Navy. The court has also directed the CDA to demolish the Sailing Club because it violates relevant environmental and zoning laws. In the long run, though, the most important finding of the court is that the navy – and by extension any of the armed forces of Pakistan – can neither buy or hold any land nor engage in any business venture whatsoever.

So how did the court arrive at such revolutionary findings? Through nothing more fancy than a combined reading of the doctrine of enumerated powers, Articles 173 and 245 of the constitution and the Navy Ordinance, 1961.

The doctrine of enumerated powers, which is one of the most salient doctrines of modern constitutional law, dictates that the state, or any other juristic person, for that matter – quite unlike the kings of yore – can only exercise such powers as are expressly conferred by the law. This means that if the law doesn’t empower any branch of the state to do a particular thing, then it cannot do that. Full stop.

The action under challenge – such as doing business – might itself not be an illegal activity, but it is, as lawyers call it, ultra vires: that is, beyond the legal mandate of the person doing it. The rule for corporate persons is the exact opposite of that which applies to natural persons. As mentioned in Article 4 of the constitution, a natural person can do anything and everything for as long as it is not expressly prohibited by law. For state institutions, not so.

It is because of this doctrine that the foundational document of almost any juristic person – be it corporation or statutory body – contains a “functions” clause which lists down in tedious detail the things that the juristic person can do. Often included in this copious list are the words “to acquire, hold or dispose of property in its own name”.

In this regard, while examining the foundational documents of the armed forces of Pakistan – Article 245 and the Navy Ordinance, 1961, the Air Force Act, 1953 and the Army Act, 1954 – one notices a stunning omission. Nowhere in this entire legal corpus is there any mention of the power to buy or hold immoveable property. The wisdom behind this stunning ‘omission’ comes out when you read these laws in conjunction with some other laws: namely, Article 173(2) of the constitution and the Cantonments Act, 1924.

The scheme of our law is as follows: the only “enumerated function” of the armed forces is to “defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so.” If the armed forces want land for achieving these purposes, they have to ask the federal government for it, which can provide the same using powers conferred upon it by the Cantonments Act, 1924. Under Article 173(2) of the constitution, such land, even if it is being used for defence purposes, will continue to vest in the federal government and not be transferred in the name of any other force or institution. If the forces want money, they cannot raise it through business; they have to ask the federal government for it, which can provide the same through the next Finance Act. On their own, the forces can do no such thing.

This rather simple and obvious point of constitutional law was always latent in Pakistani law. It’s nothing new. It was always there. Yet, despite its serious long-term ramifications for civil-military relations, for decades it lay undiscovered. Finally, through the efforts of a courageous petitioner and a fertile judicial mind, it has now been unearthed and has become a part of our jurisprudential landscape.

Cynics will say that many such bold and creative judgments of the high courts of Pakistan have come in the past too but have been reversed or, at least, suspended by the Supreme Court. It’s a pattern which started with the Munir Court overturning the brilliant Sindh High Court judgment, authored by Chief Justice Constantine, in the Maulvi Tamizuddin case. Recently, the Islamabad High Court’s judgment in the One Constitutional Avenue case was reversed through spurious reasoning while the Peshawar High Court’s judgment in the case of Internment Center Regulations remains suspended. That may well be so. But the same judicial history also tells us that a sound legal idea has never been permanently vanquished through power.

After a 60-year tussle with the ‘doctrine of necessity’, Chief Justice Constantine’ original view returned as a victor in 2009. Justice Mansoor Ali Shah’s view about the constitutional entrenchment of local government, overruled in 2015, was recently resurrected in 2021. Power can be heady and flashy, but it is a very temporary phenomenon. In the long run, the empire of the intellect is far more abiding.

The writer is a partner at The Law and Policy Chamber. He can be reached at:

umer.gilani@gmail.com

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