Authored By: Fatima Amir
Government College University Lahore
- Case Citation and Basic Information
Case Name: Asma Jilani v Government of the Punjab and Another
Citation: PLD 1972 SC 139
Court: Supreme Court of Pakistan
Date of Decision: 20 April 1972
Bench: Full bench led by Chief Justice Hamoodur Rahman along with Justice MuhammadYaqoob Ali, Justice Sajjad Ahmad, Justice Waheeduddin Ahmad, and Justice SalahuddinAhmad. Area of Law: Constitutional law, martial law, fundamental rights
- Introduction
After independence , the early years of Pakistan’s political history remain turbulent. The civiliangovernment continued to repeatedly replaced by military rule. President Ayub Khan resignedfrom his office due to public pressure and transferred the authority to army head, General YahyaKhan, rather than passing it onto a civilian. After holding authority, Yahya Khan declaredmartial law and abrogated the 1962 Constitution. Asma jilani case emanated directly out of thismilitary takeover.
This case is significant because it was used to overturn the previous decision of court giveninState v Dosso-PLD 1958 SC 533.In,Dosso case, the Court gave the following dictum: Whenasuccessful revolution is in progress it establishes its own legal basis. Asma Jilani case changedthis dictum and made the primacy of the constitution again a central theme in Pakistani law.
- Facts of the Case
Political Background
As a result of nationwide unrest and mass protests (1968- 1969), Ayub Khan’s government wasunable to maintain order, therefore, he resigned in March 1969. Instead of transferringthe authority to the Speaker of the National Assembly as per the constitution, Ayub Khanwrotealetter to Yahya Khan asking him to restore order. Yahya Khan himself declared martial lawandabolished the 1962 Constitution, disbanded the assemblies, and dismissed the provincial governors and President’s Council.
Facts Giving Rise to the Petition
Malik Ghulam Jilani was a politician and he led the Punjab wing of Awami League. He wroteablistering letter to Yahya Khan in which he challenged the President’s claimthat Sheikh MujiburRehman who was once treated as a future prime minister suddenly became a traitor. Furthermore, he accused his regime for wrecking the country. Soon after this he was arrested. His detentionwas initially made under Rule 32 read with Rule 213 of the Defence of Pakistan Rules 1971inanorder dated 22 December, 1971. Later, that order was revoked and replaced with a newdetentionorder that was allegedly issued in accordance with Martial Law Regulation No. 78 of 1971bythe Martial Law Administrator of Zone C. His daughter Asma Jilani had filed a writ petitionagainst his imprisonment. She argued that it did not have a constitutional basis.
The Connected Petition
Altaf Gauhar was a civil official and editor-in-chief of Dawn Karachi newspaper.Asimilarpetition was brought on behalf of him who was arrrested and detained for publishing that letter. Both of these cases were heard together because they involved the same question: Do detentionorders of an illegitimate administration have any legal force?
Procedural History
Presidential Order No. 3 of 1969, the Jurisdiction of Courts (Removal of Doubts) Order whichremove the jurisdiction of the High Courts under Article 98 of the 1962 constitutionforconsidering whether these detentions were lawful. Therefore, High Courts followedtheprecedent set in State v. Dosso to treat the martial law administration as de jure anddidnot examine the merits of the detentions. So the petitioners then appealed to the Supreme Court leading to the landmark case of Asma Jilnai v Goernment of Punjab and Another.
- Legal Issues
Issue 1: Whether the High Courts can judge the legality of detention under Martial LawRegulation 78 in the light of the standard set by the Jurisdiction of Courts (Removal of Doubts)Order 1969?
Issue 2: Whether the doctrine of State v. Dosso – “If a revolution is successful, it is a legitimatesource of constitutional authority” – is correct?
Issue 3: Whether General Yahya Khan was a legitimate head of state or just a usurper?
Issue 4: Whether the Provisional Constitution Order and the Martial Law Regulations issuedonits promulgation could be constitutionally superseded and personal liberty abridged?
- Arguments Presented
5.1 Petitioners’ Arguments
The petitioners’ counsel argued that the detentions were illegal as they were in relianceonregulations issued by a body that had no constitutional status. The Constitution did not recogniseYahya Khan’s rise to power. He was a de facto usurper and the right to liberty of an individual citizen was not to be properly overruled by his orders. The petitioners sought recognitionof thelegal enforceability of the Constitution of 1962, as reflected in the Constitution, and directedtheir release
5.2 Respondents’ Arguments
The government cited Dosso case as the reason for their detentions, saying that a successful revolution creates its own legal order and courts are bound to recognize that regardless of theold constitution. From this viewpoint, Yahya Khan was an effective sovereign, martial lawhadbeen lawfully declared and the Martial Law Regulations were valid because they were derivedfrom that new order rather than the 1962 Constitution.
- Court’s Reasoning and Analysis
Constitutional Supremacy
The Court reaffirmed that the Constitution is the supreme law of the land and cannot bedisplaced by any de facto usurper.It held that merely taking control of the machinery of thestatedoes not not make an individual immune from the constitutional limits. This principle shapedthe court’s reasoning and guided how the Court answered each question.
Rejection of State v Dosso
The Court states that Dosso case was based upon three questionable assumptions: “(1) that thepositivist theory of Kelsen was an accepted foundation of jurisprudence; (2) that any suddenandunchallenged change in political conditions constitutes a revolution; and (3) that international rules regarding state recognition also answer to questions of internal sovereignty within a State.”The Court did not find any of these presumptions to be warranted and refused to accept staredecisis to support a decision it deemed to be wrong and injurious.
C. Kelsen’s Theory and Its Misapplication
The Court held that the decision in State v Dosso has misinterpreted the Hans Kelsen’s Theoryofrevolutionary legality. Kelsen offered a descriptive analysis of how legal systems changefollowing a successful revolution and did not provide a moral justification for courts tovalidateevery successful power grabs. The Court further pointed out that during the martial laweraof1958 ordinary courts and regular laws still functioned properly and that was not a revolution, which would have meant to replace one legal order with another.
Martial Law and the Constitution
The Court stated that the declaration of martial law does not bar any civil lawor civilianadministration. It’s not a license for the military to take over the Constitution, it’s a temporarymeasure for an emergency. The Court also said that Pakistan’s law did not give an army chief thepower to declare martial law on his own and the civil authorities should have done that.
The Status of General Yahya Khan
By this reasoning, the Court determined that Yahya Khan never had constitutional power. It isevident from Ayub Khan’s letter that he merely asked for his help to restore lawand order, but did not ask to take over the presidency, nor to change the Constitution. Consequently, the Court found that Yahya Khan was an usurper whose rule was ‘de facto’ rather than ‘de jure’ legal.
Protection of Fundamental Rights
The Court ruled both the Presidential Order No. 3 of 1969 and Martial LawRegulation78invalid since they are based on an unconstitutional source of authority. It concluded that thedetentions conducted under these instruments could be challenged in the courts under theprinciple of habeas corpus and that the personal liberty survived the change of regime.
The Doctrine of Necessity
The Court did not invalidate all of the actions done under the illegal regime. It recognizedthat some activities that would genuinely serve the public good, such as completed transactions, property transfers, or measures, could be allowed to stand under a doctrine of necessitytoprevent further instability in the nation. But it was careful to call this a policy of condonationrather than legitimization. These acts that seriously infringed upon the rights of the citizensorwere meant to consolidate the usurper’s power further would not be protected.
- Judgment and Ratio Decidendi
The Supreme Court granted the petitions and held that Malik Ghulam Jilani and Altaf Gauharwere illegally detained and ordered their release. It overruled the State v. Dosso decisionanddeclared Yahya Khan to be a usurper who had no constitutional authority.
Ratio Decidendi
If a constitution is overthrown, this does not amount to a legally successful seizure of power. Mere success alone in assuming control of the state cannot serve as a constitutional basis forlawful authority. While in some cases the exercise of a usurper’s government can be justifiedtoprevent greater evil, it is important that the court maintain the rule of law and not validateanunconstitutional government.
- Critical Analysis
8.1 Significance
The judgement was a resurgence of the Constitutional supremacy as the supreme lawof thelandin Pakistani legal framework, undoing the damage caused by the Dosso case. It reassertedthepower of the judiciary to review the acts of the executive and military, treating the rule of law, rather than the raw power, as the real source of legitimate government.
.8.2 Implications and Impact
The decision remains a precedent to be invoked in Pakistani courts when extra-constitutional government is challenged and it influenced how subsequent courts handled issues of militarycontrol and constitutional continuity. Its treatment of doctrne of necessity also providedlatercourts a framework, however imperfect, for handling the aftermaths of unconstitutional regimes.
8.3 Critical Evaluation
There are significant advantages to the ruling. It engages with Kelsen’s theory more carefullyrather than Dosso’s does and offers a more rational defense of constitutional government, andprotects the civil freedoms by asserting that imprisonment must be based on legal authority. However, it wasn’t that much helpful. The judgment came after Yahya Khan hadalreadyresigned in December 1971 and failed to undo the consequences of his tenure and did not stopfurther military coups. Courts later, when challenged by other extra-constitutional regimes, resurrected the doctrine of necessity that the Court had tried to mitigate the effect of the decision, showing that the Court’s decision against revolutionary legality did not make its way intothepermanent restrictions on political involvement by the military.
- Conclusion
Asma Jilani v. Government of the Punjab and Another was initiated when two men were arrestedunder General Yahya Khan’s martial law without any constitutional basis. The Supreme Court reversed State v. Dosso in holding that a government that is founded solely on military power isincapable of conferring legitimate authority. It was justified on the grounds of constitutional supremacy, a modified version of Kelsen, and the idea that martial lawdid not remove constitutional limitations on the exercise of authority. This case is still considered one of themost landmark decisions in the history of the Pakistani Constitution and a prime example of howthe judiciary cannot do away with the practical effect of an unconstitutional regime by invokingthe doctrine of necessity with care.
- Reference(S):
Cases
Asma Jilani v Government of the Punjab and Another PLD 1972 SC 139. State v Dosso PLD 1958 SC 533.
Legislation
Constitution of the Islamic Republic of Pakistan 1962 (as in force prior to its suspension), arts12, 16, 30, 98.
Martial Law Regulation No 78 of 1971.
Jurisdiction of Courts (Removal of Doubts) Order 1969 (President’s Order No 3 of 1969). Defence of Pakistan Rules 1971, r 32(1)(1), r 213.
Secondary Sources
Hamid Khan, Constitutional and Political History of Pakistan (3rd edn, Oxford UniversityPress2017).
