In the night between 4th and 5th July, 1977 General Zia Ul Haq took over the administration of the country through the operation code named as Operation Fairplay. Bhutto and his cabinet members were taken into protective custody. National assembly and provincial assemblies were dissolved and the martial law was imposed in the country.

Laws (Continuance in Force) Order, 1977 was promulgated to administer the affairs of the state.

Bhutto was again arrested under Martial Law Order No. 12 of 1977.

Writ petition, under art 184(3) of the Constitution, challenging the detention of Bhutto and ten other colleagues was filed in SC by Nusrat Bhutto which was accepted for hearing in by CJ Muhammad Yaqoob Ali.

Military government issued CMLA Order No 6 amending the Laws (Continuance in Force) Order, 1977 in the result of which CJ Yaqoob Ali ceased to hold office as chief justice. Anwar Ul Haq was appointed as CJ of Supreme Court of Pakistan.

The writ petition was heard by the full bench comprised of nine judges, rather than full court.

Yakhya Bakhtiar counsel for the petitioner mainly relied on Asma Jillani’s case and argued:

  • that COAS had no authority to impose martial law on the country;
  • that the intervention by COAS amounted to an act of treason in terms of art.6 of the Constitution;
  • that as a consequence, the proclamation of Martial Law dated 5th July, 1977, the Laws (Continuance in Force) Order, 1977 as well as Martial Law Order No 12, under which Bhutto and his colleagues were detained were all illegal and without lawful authority; it was further argued that  even if all or any of these enactments or actions could be justified on the doctrine of necessity, the arrest and detention of the top leadership of Pakistan People’s Party was highly discriminatory and malafide, intended to solely to keep the PPP out of forthcoming general elections;
  • that the COAS could not place himself beyond  the reach of the courts by relying on an Order promulgated by himself, as the 1973 Constitution continued to be the supreme law of the country, especially as the COAS himself had declared that the Constitution was not being abrogated but certain parts thereof were being held in abeyance for the time being so as to create a peaceful atmosphere for conducting the elections and restoring the democratic institutions;
  • that the orders of detention resulted in flagrant violations of detenus’ fundamental rights as contained Chapter I, Part II of the Constitution of Pakistan, particularly Articles 9, 10, 17 and 25 thereof.

AK Brohi, counsel for the Federation and Sharifuddin Pirzada, the newly appointed Attorney General arguments can be summarized as:

Preliminary Objections:

  • The Petition is not maintainable because writ was directed against the COAS whereas the order of detention has been passed by the Chief Martial Law Administrator, and
  • The petitioner was not an aggrieved person in terms of article 184(3) read together with article 199 of the Constitution of Pakistan as she did not alleged violation of any of her fundamental rights but only those of detenus.

It was further contended:

  • that Supreme Court had no jurisdiction to grant any relief in the matter owing to the prohibition contained in articles 4 and 5 of Laws (Continuance in Force) Order, 1977 which ousted the jurisdiction of any court, including the superior courts to question the validity of any Martial Law Order or Regulation, or any order made thereunder by any Martial Law authority; and additionally, under Laws (Continuance in Force) Order, 1977 right to enforce the fundamental rights stood suspended.
  • that on July 5, 1977 a new legal order came into force by virtue of the Proclamation issued by the CMLA and the new legal order displace__ though temporarily__ the old legal order so that any action which took place thereafter could only be tested against the guidelines provided by the new legal order with the new grund norm and to the extent the jurisdiction of the Courts had been altered. It was further contended that new legal order had effectively emerged in Pakistan be means of extra constitutional change. The Court needs to take judicial notice of events which had transpired in the country to decide as a constitutional fact, whether the new legal order had become effective or not as envisaged by Kelsen’s theory of law.
  • that the change which took place in Pakistan on 5th July, 1977 did not amount to usurpation of State powers by COAS but, in fact, was intended to oust a usurper who had illegally assumed the power as a result of massive rigging of the elections of 7th March, 1977; It was intended to displace the illegally constituted legislative assemblies, both at center and provinces; the purpose of the Martial Law Administrator was to remain in power only for limited and temporary period so as to hold free and fair elections for the restoration of democratic institutions
  • that the circumstances culminating in the imposition of Martial Law on 5th July, 1977 fully attracted the doctrine of State necessity and of salus populi est suprema lex, with the result that actions taken by CMLA must be regarded as valid and the Laws (Continuance in Force) Order, 1977 must be treated as supra-constitutional instrument, at the time regulating the governance of the country. Consequently, all the actions taken by the CMLA to meet the exigencies of the situations and to prepare the country for the future elections with a view to the restoration of democratic institutions must be accepted by the Courts as valid.
  • that Court could not grant any relief to the detenus under art 184(3) of the Constitution as the fundamental rights stood suspended by virtue of article 2 of the Laws (Continuance in Force) Order, 1977.

Findings of the Court:

Court took judicial notice of the facts (as narrated in its judgment) from 7th March, 1977 onward and stated that Z.A. Bhutto’s constitutional and moral authority to rule as Prime Minister stood seriously eroded. It was difficult for his government to maintain law and order, to run orderly administration of the country, to keep educational institutions open and to ensure normal economic activity. The constitutional authority not only of PM but federal ministers and provincial government was being repudiated by a large scale throughout the country. The representative character of national and provincial assemblies was not being accepted by the people. The political crisis was leading the country to a constitutional break down. A situation has arisen for which the constitution provided no solution. It was in these circumstances that the armed forces intervened to save the country from the brink of disaster. It was undoubtedly an extra-constitutional step but obviously dictated by the highest consideration of state necessity and welfare of the people.

It cannot be laid down as a general proposition of law that whenever the power is assumed in an extra-constitutional manner by any authority not mentioned in constitution, then it must amount to usurpation in all events but it would be a question for determination in the circumstances of the particular case before the Court as to whether the assumption of power amounts to usurpation? Once the assumption of power is justified by the doctrine of necessity, different consideration arises from those which would be relevant for judging the acts of a usurper. Once the assumption power is held to be valid, the legality of actions taken by such an authority would have to be judged in the light of principles pertaining to the law of necessity.

Referring to Quranic verse 173 of Chapter II (Sura-al-Baqar) Courst said that the doctrine of necessity is recognized even by Islam, in so far as, if one is forced by necessity then becomes permissible which is otherwise impermissible and to repel a public damage a private damage is preferred.

The superior courts continued to have the power to judge the validity of any act of Martial Law authorities, if challenged, in the light of the principles underlying the law of necessity and their power under art 199 of the Constitution remained available to the full extent and could be exercised notwithstanding anything contained in any Martial Law Order or Regulation.

Since the situation had deteriorated to such an extent that it justified an extra-constitutional step by armed resulting in the suspension of certain parts of the constitution, the situation was obviously at least of the kind contemplated by art 232(1) of the constitution and CMLA was justified in providing art 2(3) of Laws (Continuance in Force) Order, 1977 that the right to enforce fundamental rights shall be suspended. No exception could, therefore, be taken to the validity of this provision. Therefore the petition under art 184(3) for the enforcement of fundamental rights of detenus was not maintainable, the Court further observed, for the reason that fundamental rights stood suspended since 5th July, 1977 under article 2(3) of Laws (Continuance in Force) Order, 1977.

Court stated that the 1973 Constitution still remained the supreme law of the land subject to the condition that certain parts thereof were held in abeyance on the account of State necessity.

Court found that CMLA, having validly assumed power by means of an extra constitutional step, in the interest of the State and welfare of the people, was entitled to perform all such acts and promulgate all legislative measures which had been consistently recognized by judicial authorities as falling within in the scope of law of necessity namely:

(a) all acts or legislative measures which are in accordance with or could have been made under the 1973 Constitution, including the power to amend it;

(b) all acts which tend to advance or promote the good of the people;

(c) all acts required to be done for the orderly running of the state; and

(d) all such measures as would establish or lead to the establishment of the declared objective of the proclamation of Martial Law namely, restoration of the law and order and normalcy in the country and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions the 1973 Constitution.

Court observed that all or any of these acts falling in the scope of the law of necessity could be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations, or Orders, as the occasion required.

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