Malik Ghulam Jilani a politician from Lahore and Altaf Hussain Gohar, Editor-in-Chief, Dawn Karachi were arrested under an Order dated 22 December 1971 issued under rule 32 (i) (1) read with rule 213 of the Defence of Pakistan rules, 1971. Government rescinded this Order and substituted it by another purported to have been issued under Martial Law Regulation No.78 by the Martial law Administrator Zone “C”. The writ petition challenging detention of Ghulam Jillani was filed in Lahore High Court while that of Altaf Hussain Gohar was filed in Sindh High Court. On the hearing on 15 January 1972 the Government raised a preliminary objection that the jurisdiction of the High Court was barred in the matter by virtue of the provisions of clause 2 of the jurisdiction of Courts (Removal of Doubts) Order, 1969 promulgated by the Chief Martial Law Administrator. The Lahore High Court (Shafi-ur-Rehman, J) relying on State V. Dosso, PLD 1958 S.C 533 held that the Jurisdiction of Courts (Removal of Doubts) Order, 1969 was valid and binding and as such, it had no jurisdiction to entertain and decide the petition. The Constitutional petition against the detention of Altaf Hussain Gohar also failed because the Sindh High Court held it had no jurisdiction to grant relief against the martial law orders stating the same reasons as given by Lahore High Court in Ghulam Jillani Case. Both filed appeal in the Supreme Court of Pakistan.
The precise question before the Supreme Court was whether the High Courts had jurisdiction under Article 98 of the Constitution of Pakistan (1962) to enquire into the validity of detention under the Martial Law Regulation No. 78 of 1971 in view of the bar created by the provisions of the Jurisdiction of Courts (Removal of Doubts) Order, 1969. The further question was whether the doctrine enunciated in the case of State v. Dosso PLD 1958 SC (Pak.) 533 was correct.
The successive maneuverings for usurpation of power under the Pseudonym of Martial Law, it was urged, were neither justified nor valid nor had even reached the effectiveness to merit the legal recognition that was given to them in the case of State v. Dosso
Supreme Court observed that in laying down a novel juristic principle of such far‑reaching importance the Chief Justice in the case of State v. Dosso proceeded on the basis of certain assumptions, namely :‑
(1) “That the basic doctrines of legal positivism”, which he was accepting, were such firmly and universally accepted doctrines that “the whole science of modern jurisprudence” rested upon them;
(2) that any “abrupt political change not within the contemplation of the Constitution” constitutes a revolution, no matter how temporary or transitory the change, if no one has taken any step to oppose it ; and
(3) that the rule of international law with regard to the recognition of States can determine the validity also of the States’ internal sovereignty.
The appeals were heard and allowed by the Supreme Court declaring both the impugned orders of detention to be void and without legal effect setting both the detenus at liberty.
Court held these assumptions were not justified. Kelsen’s theory was, by no means, a universally accepted theory nor was it a theory which could claim to have become a basic doctrine of the science of modern jurisprudence, nor did Kelsen ever attempt to formulate any theory which “favours totalitarianism”. Kelsen was only trying to lay down a pure theory of law as a rule of normative science consisting of “an aggregate or system of norms”. He was propounding a theory of law as a “mere jurists’ proposition about law”. He was not attempting to lay down any legal norm or legal norms which are “the daily concerns of Judges, legal practitioners or administrators”. Kelsen in his attempt to evolve a pure science of law as distinguished from a natural science attached the greatest importance to keeping law and might apart. He did not lay down the proposition that the command of the person in authority is a source of law. Kelsen’s attempt to justify the principle of effectiveness from the standpoint of international law cannot also be justified, for, it assumes “the primacy of international law over national law.” In doing so he has overlooked that for the purposes of international law the legal person is the State and not the community and that in international law there is no “legal order” as such. The recognition of a State under international law has nothing to do with the internal sovereignty of the State, and this kind of recognition of a State must not be confused with the recognition of the Head of a State or Government of a State. An individual does not become the Head of a State through the recognition of other States but through the municipal law of his own State. The question of recognition of a Government from the point of view of international law becomes important only when a change in the form of Government also involves a break in the legal continuity of the State, or where the question arises as to whether the new Government has a reasonable expectancy of permanence so as to be able to claim to represent the State.
On the grund norm, court held that in any event, if a grund‑norm is necessary, Pakistan need not have to look to the Western legal theorists to discover it. Pakistan’s own grund‑norm is enshrined in its own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March 1949. This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military or civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy Quran: Say, ‘O Allah, Lord of sovereignty. Thou givest sovereignty to whomsoever Thou pleasest; and Thou takest a Nay sovereignty from whomsoever Thou pleasest. Thou exaltest whomsoever Thou pleaaest and Thou abasest whomsoever Thou pleasest.‑Holy Quran, Pt. 3, Chap. III, A1 ‘Imran, Ay. 27. The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach of trust or fails to discharge his obligations under a trust. The functional Head of the State is chosen by the community and has to be assisted by a Council, which must hold its meetings in public view and remain accountable to public. It is under this system that the Government becomes a Government of laws and not of men, for no one is above the law. It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system “the law rules through the utterance of justice, and the power of the Governor carries out the utterance of it.
The principle enunciated in Dosso’s case, therefore, is wholly unsustainable, and it cannot be treated as good law either on the principle of stare decisis or even otherwise.
Now to judge the validity of the events that took place on and from the 24th of March 1969. On the 24th of March 1969, Field‑Marshal Muhammad Ayub Khan, the then President of Pakistan, wrote a letter to the Commander‑in‑Chief of the army expressing his profound regret for coming to the conclusion that “all civil administration and constitutional authority in the country has become ineffective” and admitting after reciting the unhappy state of events that had taken place in the country earlier, that “it is beyond the capacity of the civil Government to deal with the present complex situation, and the defence forces must step in.”In these circumstances, he thought that there was no option left for him but “to step aside and leave it to the defence forces of Pakistan, which today represent the only effective and legal instrument, to take over full control of the affairs of the country”, and finally called upon the Commander‑in‑Chief to do the needful. This was followed by a Broadcast over the Radio network at 7‑15 p.m., of the 25th of March 1969. There was nothing either in this letter or in this broadcast to show that he was appointing General Agha Muhammad Yahya Khan as his successor‑in‑office or was giving him any authority to abrogate the Constitution which he had himself given to the country in 1962. Both these merely called upon the Commander‑in‑Chief of the army to discharge his legal and constitutional responsibility not only to defend the country against external aggression but also to save it from internal disorder and chaos. He did not even proclaim Martial Law. Nevertheless, the Commander‑in‑ Chief on the very same day,namely, the 25th of March 1969, on his own proclaimed Martial Law throughout the length and breadth of Pakistan and assumed the powers of the Chief Martial Law Administrator. He also abrogated the Constitution, dissolved the National and Provincial Assemblies and declared that all persons holding office as President, members of the President’s Council, Ministers, Governors of Provinces and members of their Council of Ministers shall cease to hold office with immediate effect. Existing laws and Courts were, however, preserved with the proviso that no writ or other order shall be issued against the Chief Martial Law Administrator or any person exercising powers or jurisdiction under the authority of the Chief Martial Law Administrator.
It is clear that under the Constitution of 1962, Field‑Marshal Muhammad Ayub Khan had no power to hand over power to anybody. Under Article 12 of the Constitution he could resign his office by writing under his hand addressed to the Speaker of the National Assembly and then under Article 16 as soon as the office of President fell vacant the Speaker of the National Assembly had to take over as the acting President of the Country and an election had to be held within a period of 90 days to fill the vacancy. Under Article 30 the President could also proclaim an emergency if the security or economic life of Pakistan was threatened by internal disturbances beyond the power of a Provincial Government to control and may be for the present purposes that he could also proclaim Martial Law if the situation was not controllable by the civil administration. It is difficult, however, to appreciate under what authority a Military Commander could proclaim Martial Law.
Court further held that proclamation of Martial Law does not by itself involve the abrogation of the civil law and the functioning of the civil authorities and certainly does not vest the Commander of the Armed Forces with the power of abrogating the fundamental law of the country. It would be paradoxical indeed if such a result could flow from the invocation in the aid of a State of an agency set up and maintained by the State itself for its own protection from external invasion and internal disorder. If the argument is valid that the proclamation of the Martial Law by itself leads to the complete destruction of the legal order, then the armed forces do not assist the State in suppressing disorder but actually create further disorder, by disrupting the entire legal order of the State. It is, therefore, not correct to say that the proclamation of Martial Law by itself must necessarily give the Commander of the armed forces the power to abrogate the Constitution, which he is bound by his oath to defend.
Therefore, there can be no question that the military rule sought to be imposed upon the country by General Agha Muhammad Yahya Khan was entirely illegal.
The Presidential Order No. 3 of 1969 is a sub‑constitutional legislation and it could not have curtailed the jurisdiction that was given to the High Courts and to the Supreme Court by the Constitution of 1962, for, that jurisdiction was preserved even by the Provisional Constitution Order.
Looking at the matter, therefore, from any point of view, whether, from the strictly legal and constitutional side, or on the basis of the principle of implied authority or even in terms of the so‑called legal order purported to be created by the Provisional Constitution Order of 1969 itself, the conclusion cannot be escaped that the Presidential Order No. 3 was an unconstitutional document, General Agha Muhammad Yahya Khan had no authority to pass such legislation taking away the powers of the Courts in his capacity as President under the Provisional Constitution Order. The Martial Law introduced by him was illegal and, therefore, even as Chief Martial Law Administrator he was not competent to validly pass such laws, and it certainly was in excess of the implied authority, if any, given to him by the letter of Field‑Marshal Muhammad Ayub Khan dated the 24th of March 1969.
The Martial Law Regulation No. 78 gives very wide powers to the Chief Martial Law Administrator and a Zonal Martial Law Administrator and even a Deputy Martial Law Administrator to detain a person without trial for any length of time, without giving him any reasons for such detention or any opportunity even of making any representation against such a detention. These are indeed very extraordinary powers for taking away the most cherished right of a citizen in a most arbitrary manner. They provide no machinery for seeking any redress against any possible abuse or misuse of power or for making any representation or even for an appeal from Ceaser to Ceaser.
Both the Presidential Order No. 3 of 1969 and the Martial Law Regulation No. 78 of 1971 were made by an incompetent authority and, therefore, lacked the attribute of legitimacy which is one of the essential characteristics of a valid law.
The Court came to the conclusion that Yahya did not allow the constitutional machinery to come into effect. Instead he usurped the functions of the government and started issuing all kinds of martial law regulations, presidential orders and even ordinances. There was thus no question that the military rule sought to be imposed upon the country was entirely illegal. The presidential order barring the jurisdiction of the high courts, being sub-constitutional legislation, could not curtail the jurisdiction of the courts given to them by the Constitution of 1962, for that jurisdiction was preserved even by Provisional Constitutional Order. Martial Law Regulation No. 78 was struck down as having been made by an incompetent authority and, therefore, lacked legitimacy.
After having held Yahya as usurper and all laws enacted by his regime as illegal, the SC took resource to the doctrine of necessity because ignoring it would result in disastrous consequences to the body politic and upset the social order. After having reached to the conclusion that the acts of usurper illegal, the question arose as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their illegality, in wider public interest. The Court condoned:
(1) All transactions which were past and closed (because no useful purpose could be served by re-opening them);
(2) All acts and legislative measures which were in accordance with, or could have been made under, the abrogated constitution or previous legal order;
(3) All acts which tended to advance or promote the good of the people; and
(4) All acts required to be done for the orderly running of the state and all such measures as would establish or lead to the establishment of the objective mentioned in the Objectives Resolution of 1949.