P L D 1977 S C 657

JUDGMENT

S. ANWARUL HAQ C J.--'This petition by Begum Nusrat

Bhutto, under Article 184 (3) of the 1973 Constitution of the
Islamic Republic of Pakistan, seeks to challenge the
detention of Mr. Zulfikar Ali Bhutto, former Prime Minister
of Pakistan, and ten other leaders of the Pakistan People's
Party under Martial Law Order No. 12 of 1977. It raises
several difficult questions of far-reaching constitutional
importance. Besides addressing elaborate arguments as to
the validity and legal effect of the imposition of Martial Law
by the Chief of the Army Staff. the parties as well as two of
the detenus, namely, Mr. Zulfikar Ali Bhutto and Mr. Abdul
Hafeez Pirzada, have filed lengthy written statements on the
factual aspects of the case, setting out their respective
versions of the events culminating in the Proclamation of
Martial Law on the 54th of July, 1977. These two detenus
have also personally appeared before the Court and made
detailed oral submissions in support of their positron. A
third detenu, viz. Mr. Mumtaz Ali Bhutto, has also filed a
written statement. The other eight detenus have neither
filed written statements nor asked to be heard personally.

The petition states that Mr. Zulfikar Ali Bhutto and the ten
other leaders of the Pakistan people's Party were arrested in
the early hours of the 17th of September, 1977, and
detained in various prisons in the four Provinces of Pakistan.
It is stated that on the evening of the 17th of September,
1977, the Chief of the Army Staff made a public statement,
in which he levelled highly unfair and incorrect allegations
against the Pakistan People's Party Government and the
detenus by way of explaining away their arrest and
detention. He also indicated his intention of placing the
detenus before military Courts or tribunals for trial so as to
enforce the principle of public accountability. The petition
avers that this action has been taken against the detenus in
a mala fide manner, with the ulterior purpose of preventing
the Pakistan People's Party from effectively participating in
the forthcoming elections which were scheduled to be held
during the month of October, 1977.

Relying mainly on the judgment of this Court in Miss Asma

Jillani v. The Government of the Punjab and another
PLD1972SC139, Mr. Yahya Bakhtiar, learned counsel for the
petitioner, contends that the Chief of Staff of the Pakistan
Army had no authority under the 1973 Constitution to
impose Martial Lave on the country; that this intervention
by the respondent amounts to an act of treason in terms of
Article 6 of the Constitution; that as a consequence the
Proclamation of Martial Law dated the 5th of July 1977, the
Laws (Continuance in Force) Order, 1977, as well as Martial
Law Order No. 12, under which the detenus have been
arrested and detained, are all without lawful authority; that
even if all or any of these acts or actions may be justified on
the doctrine of necessity, yet arrest and detention of the top
leadership of the Pakistan People's Party is highly
discriminatory and mala fide, intended solely for the
purpose of keeping the Pakistan People's Party out of the
forthcoming elections; and that the respondent cannot
place himself beyond the reach of the Courts by relying on
an order promulgated by himself, as the 1973 Constitution
continues to be the supreme legal instrument of the
country, especially as the respondent himself has declared
that this Constitution was not being abrogated but only
certain parts thereof were being held in abeyance for the
time being so as to create a peaceful atmosphere for the
holding of elections and restoration of democratic
institutions.

Mr. Yahya Bakhtiar submits that, in the circumstances, the

orders of detention have resulted in a flagrant violation of
the detenus Fundamental Rights, as contained in Chapter I,
Part II of the Constitution, particularly Articles 9, 10, 17 and
25 thereof, which relate to the security of person,
safeguards as to arrest and detention, freedom of
association and equality of all citizen before law. He further
submits that as the detenus are being held in various prisons
all over Pakistan, therefore, it is not possible for them to
move the various provincial High Courts for relief. He
contends that this is eminently a case requiring redress by
the Supreme Court under clause of Article 184 of the
Constitution, which specifically empowers this Court to
make an order for the enforcement of any of the
Fundamental Rights conferred by Chapter I of Part II, if the
Court considers that a question of public importance with
reference thereto is involved.

Mr. A. K. Borhi, learned counsel appearing for the

Federation of Pakistan, which was also made a patty at his
request, has taken two preliminary objections as to the
maintainability of this petition

(a) That it is directed against the Chief of the Army Staff,

whereas the orders of detention had been passed by the
Chief Martial Law Administrator; and

(b) That the petitioner is not an aggrieved person in terms of

Article 184 (3) of the Constitution read with Article 199
thereof, as she does not allege any violation of her own
Fundamental Rights, but only those of the detenus.

He also maintains that this Court has no jurisdiction to grant

any relief 3n this matter owing to the prohibition contained
in Articles 4 and 5 of the Laws (Continuance in Force; Order,
1977, which clearly contemplate that no Court, including the
High Court and the Supreme Court, can question the validity
of any Martial Law Order or Regulation, or any order made
there under by a Martial Law Authority. He submits that
under clause (3) of Article 2 of the aforesaid Laws
(Continuance in Force) Order the right to enforce
Fundamental Rights stands suspended, and for this reason
as well the petition is not maintainable.

As to the legal character of the new regime, and the validity

of the Laws (Continuance in Force) Order, 1977, and the
various Martial Law Regulations and Orders issued by the
Chief Martial Law Administrator and the President under its
authority, Mr. Brohi submits that up to the 5th of July 1977,
Pakistan was being governed under the 1973 Constitution,
but on that day a new Legal Order came into force by virtue
of the Proclamation issued by the Chief Martial Law
Administrator, and this Legal Order has displaced-albeit
temporarily-the old Legal Order. The validity or legality of
any action which takes place after the 5th of July 1977 can
only be tested against the guidelines provided by the new
Legal Order. According to him, the grundnorm of the old
Legal Order, us provided by the 1973 Constitution, has given
way to a new, grundnorm provided by the Proclamation and
the Laws (Continuance in Force) Order, and to that extent
the jurisdiction of the superior Courts has been altered. He
submits that as the transition from the old Legal Order to
the new Legal Order has not been brought about by any
means recognised or contemplated by the 1973
Constitution, therefore, it constitutes a meta-legal or extra-
Constitutional fact, attracting the doctrine of "revolutionary
legality". In this context, according to Mr. Brohi, whenever a
Constitution and the national Legal Order under it are
disrupted by at, abrupt political change not within the
contemplation of the Constitution, such a change is called a
revolution, which tear, also includes coupe d'etate. In such a
situation the Court has to determine certain facts which may
be termed "constitutional facts", which relate to the.
existence of the Legal Order within tine framework of ,which
the Court itself .-exists and function. If it finds that all the
institutions of State power have, as a matter of fact,
accepted the existence of the new Legal Order, which has
thus become effective, then all questions cal' legality or
illegality are to be determined within the framework of the
pew Legal Order. Mr. Brohi submits that, on this view of the
matter, a viable alternative can be found between the two
extreme positions adopted by this Court in Dosso's case P L
D 1958 S C (Pak) 533, and Asma Jillani's case-one holding
that every revolution, once successful is legal, and the other
holding that a revolution as such is illegal. According to him,
the Supreme Court in Dosso's case could have decided the
controversy by simply holding that, as a matter of
constitutional fact, a new Legal Order had come into being
in the country, and the question in issue in that case could
only be decided by reference to this new Legal Order which
had attained effectualness. He contends that the view taken
by the Supreme Court in Asma Jillani's case leaves several
questions unanswered, by rejecting Kelsen's pure theory of
law, because it does not provide any guidelines as to what
law the Courts ought to apply in case a revolution has
become effective by suppressing or destroying the old Legal
Order. As a result. Mr. Brohi submits that this Court should,
therefore, lean in favour of holding that a new Legal Order
has effectively emerged in Pakistan by means of a meta-
legal or extra-Constitutional range, and for the time being
this is the legal framework according to which all questions
coming before the Court must be decided. In his view it is
not necessary for the Court, nor is it a concomitant of
judicial power to either side with the revolution or to act as
a counter revolutionary, by giving its seal of approval to a
military intervention or to condemn it by describing it as
illegal. Judicial restraint requires that the Court should only
take judicial notice of events which have transpired in the
country, and decide as a constitutional fact, whether the
new Legal Order has become effective or not.
As to the necessity for the imposition of Martial Law on the
5th of July 1977, Mr. Brohi has stated that the events
leading thereto fall into two phases.

(i) Tile first phase relates to the unconstitutional and illegal

governance of this country by the detenus and their
associates and terminates on the eve of the imposition of
Martial Law; and

(ii) The second phase relates to the preparations which were

being made by detenus and their associates for the
fomenting of civil war within the country and their intention
to frustrate and prevent the holding of free and fair
elections and thereby consolidate their illegal tenure of
office.

He submits that the Court may take judicial notice of the

picture emerging from the mosaic of these events, which are
cited merely to illustrate the overall pattern of events, and
not to embark upon a detailed factual inquiry which would
be outside the scope of these proceedings. According to the
learned counsel, the specific illegalities committed by or at
the instance of the former Government will form the
subject-matter of independent legal proceedings in which
the persons concerned will be afforded a reasonable
opportunity for their defence in accordance with law.

Mr. Brohi goes on to state that massive rigging took place

during the elections held on the 7th of March 1977 in
accordance with the directions issued at the highest
Government level, and that the then Chief Election
Commissioner. in an interview given to the daily Millat,
Karachi, pointedly commented on the widespread
irregularities committed in relation to these elections, and
recorded his opinion that results in more than 50% of the
seats were affected thereby. He bad further expressed the
view that the appropriate course would be to hold fresh
elections Mr. Brohi contends that the evidence now
available leads to the inescapable conclusion that there was
a master-plan for the rigging of the elections which had
been conceived, directed and implemented by the then
Prime Minister, Mr. Z. A. Bhutto. The learned counsel
submits that as a result ~ of this massive rigging of the
elections in violation of the mandate of the Constitution for
holding free and fair elections, Mr: Bhutto's Government
lost whatever constitutional validity it had earlier possessed,
and there were widespread disturbances throughout the
country, amounting to a repudiation of Mr. Bhutto's
authority to rule the country. Mr. Bhutto prolonged the
dialogue between himself and. the leaders of the Pakistan
National Alliance in a mala fide manner, that the nation
reached a critical juncture and the spectre of civil war
loomed ahead. It became clear beyond doubt that no
possibility of a free and fair election being held existed as
long as the levers of power remained in Mr. Bhutto's hands.
He asserts that there was a general recognition of this fact
which also led to widespread public demands that the Army
should accept responsibility for the holding of elections.
According to the learned counsel, in the circumstances, it
became imperative for the Army to act, and the imposition
of Martial Law on the 5tb of July 1977 was greeted with a
sigh of relief throughout the country. He states that in the
three months since the imposition of Martial Law peace and
quiet has been restored; the national economy which had
reached the stage of collapse is slowly being brought back to
normalcy; Government institutions which were on the verge
of disintegration are being restored to health; and the
country's foreign policy is being conducted in the national
interest and not for the aggrandizement of Mr. Bhutto or
the projection of his personal image. Mr. Brohi adds that the
Chief Martial Law Administrator has already declared his
intention to hold elections as soon as possible, and the
postponement of the October elections has been ordered in
response to the public demand for enforcing accountability
in relation to the top leadership of the Pakistan People's
Party. In this view of the learned counsel, it can thus be seen
that Martial Law was imposed not in order to displace a
constitutional authority, but in order to provide a bridge to
enable the country to return to the path of constitutional
rule.

Mr. Sharifuddin Pirzada, the learned .Attorney-General,

appearing as the Law Officer of the Court. has supported Mr.
Brohi's submission that the change which took place in
Pakistan on the 5th of July 1977 did not amount to
usurpation of State power by the Chief of the Army Staff,
but was in fact intended to oust the usurper who had
illegally assumed power as a result of massive rigging of the
elections of the 7th of March 1977. It was also' intended to
displace the illegally constituted legislative assemblies both
at the Centre and in the Provinces, as majority of the
members had succeeded in the elections by corrupt and
criminal practices. Mr. Pirzada accordingly contends that the
present situation is not governed by the dicta of this Court in
the two well-known cases of Dosso and Asma Jillani for the
reason that the circumstances here are radically different, in
that in those cases the change brought about by the military
intervention was of a permanent nature, whereas the
avowed purpose of the present Chief Martial Law
Administrator is to remain in power only for a limited and
temporary period so as to hold free and fair elections for the
restoration of democratic institutions.

Mr. Sharifuddin Pirzada next submits that although he would

generally support Mr. Brohi's submissions as to the legal
character of an effective revolution, yet he does not wish to
adopt a position contrary to the one he took up while
appearing as amicus curtae in Asma Jillani's case, regarding
the validity and applicability of Kelsen's pure theory of law
relating to the metalegal character of the change and the
birth of a new gruridnorm. He submits that there are several
renowned jurists who do not fully subscribe to Kelsen's
views and consider that effectualness alone, to the exclusion
of all considerations of morality and justice, cannot be made
a condition of the validity of the new Legal Order. The
learned counsel, however, submits that the circumstances
culminating in the imposition of Martial Law on the 5th of
July 1977 fully attract the doctrine of State necessity and of
salus populi est suprema lex, with the result that the action
taken by the Chief Martial Law Administrator must be
regarded as valid, and the Laws (Continuance in Force)
Order, 1977, must be treated as being a supra-Constitutional
instrument, now regulating the governance of the country.
The learned Attorney-General contends that the doctrine of
necessity is not only a part of the legal systems of several
European countries, including Britain, but is also recognised
by the Holy Qur'an. He contends that consequently all
actions taken by the Chief Martial Law Administrator to
meet the exigencies of the situation and to prepare the
country for future elections with a view to the restoration of
democratic institutions must be accepted by the Courts as
valid, and there can be no question of condonation, which
concept can apply only in the case of the acts of a usurper.
On this view of the matter, Mr. Sharifuddin Pirzada submits
that the Court cannot grant any relief to the detenus, under
Article 184 (3) of the Constitution, as the Fundamental
Rights stand suspended by virtue of clause (3) of Article 2 of
the Laws (Continuance in Force) Order, 1971.

Mr. Brohi as well as Mr. Sharifuddin Pirzada were also asked

to address the Court on the possible effect and implications
of the new oath of office administered to the Judges of the
Supreme Court and the High Courts after the imposition of
Martial Law. They both stated that, in their view, the new
oath has not in any manner restricted the independence of
the superior judiciary, nor affected their obligation to
perform their judicial functions according to law; it only
indicates that the superior judiciary, like the rest of the
country, has accepted the fact, which is even otherwise also
evident, that on the 5th of July 1977, a radical
transformation took place in the pre-existing Legal Order.
Both the learned counsel are agreed, and Mr. Yahya
Bakhtiar, learned counsel for the petitioner, joins them, that
the taking of the fresh oath by the Judges of this Court does
not in any way preclude them from examining the question
of the validity of the new Legal Order and decide the same
in accordance with their conscience and the law.

I shall first take up the preliminary objections raised by Mr.

A. K. Brohi, and supported by Mr. Sharifuddin Pirzada,
regarding the maintainability of the present petition.

The first objection is that the petition is directed against the

Chief of V Army Staff whereas the orders of detention had
been passed by the Chief Martial Law Administrator. It is
clear that the objection is only in the nature of a
technicality, as the Chief of the Army Staff is also the Chief
Martial Law Administrator, and the objection could,
therefore, be easily rectified by adding the words Chief
Martial Law Administrator to the description of the
respondent as stated in the petition.

The second objection is that the Petitioner, namely petition

Nusrat Bhutto is not an aggrieved person in terms of Article
194 (3) of that Constitution read with Article 199 thereof, as
she does not allege any violation of her own Fundamental
Rights; but only those of the detenus. Clause (3) of Article
184 of the Constitution gives a concurrent power to the
Supreme Court to make an order for the enforcement of
Fundamental Rights in the same terms as could be made by
a High Court under the provisions of Article 199. Clause (l)
(c) of Article 199 does indeed contemplate that an
application for the enforcement of Fundamental Rights has
to be made by an aggrieved person. Now, it is true that in
the case before us the petitioner is not alleging an
contravention of her own Fundamental Rights, but she has
moved the present petition in two capacities, namely, as
wife of one of the detenu and as Acting Chairman of the
Pakistan People's Party, to which all the detenus belong. In
the circumstances, it is difficult to agree with Mr. Brohi that
Begum Nusrat Bhutto is not an aggrieved person within the
meaning of Article 199. In more or less similar circumstances
in Manzoor Elahi v. State P L D 1975 S C 66 this Court
entertained a petition under Article 184 (3) of the
Constitution although it was not moved by the detenu
himself but by his brother. I consider, therefore, that both
the preliminary objections raised as to the maintainability of
the petition have no merit.

The main question which arises for determination in this

case is regarding the legal character of the new regime
which has come into existence in Pakistan as a result of the
Proclamation of Martial Law on the 5th of July 1977.

In the comparatively short period of thirty years since

attaining Independence Pakistan has passed through six
periods of Martial Law:

(i) Martial Law imposed under the orders of the Federal

Government in 1953 in Lahore in order to suppress anti-
Ahmedia agitation and the disturbances arising there from;

(ii) The 1958 Martial Law imposed by President Iskander

Mirza and Field Marshal Muhammad Ayub Khan;
(iii) The 1969 Martial Law imposed by General Agha
Muhammad Yahya Khan to depose Field Marshal
Muhammad Ayub Khan;

(iv) Continuation of the 1969 Martial Law by Mr. Z. A. Bhutto

on assuming power on the 20th of December 1971 and
becoming the first civilian Chief Martial Law Administrator in
our history;

(v) Local Martial Law imposed in April 1977 in several cities

of Pakistan by Mr. Bhutto's Federal Government under
Article ?45 of the 1973 Constitution; and

(vi) Martial Law imposed on the 5th of July 1977 by the Chief
of the Army Staff, General Muhammad Ziaul Haq.

As many of the, actions taken by the Martial Law Authorities

during the first five periods were challenged before the
Courts, the question of the legality and the extent of the
powers enjoyed by these Authorities has been repeatedly
examined by the Courts in this country. One may in this
behalf refer to Muhammad Umar Khan v. Crown P L D 1953
Lah.528, Dosso v. State P L D 1958 S C (Pak.) 533,
Muhammad Ayub. Khoro v. Pakistan P L D 1960 S -C 237,
Guloh Din v. Major A. T. Shaukat P L D 1961. Lah. 952, M fir
Hassan v. State P L D 1969 Lab. 786 and Asma Jillani's case
already referred to. It does not, however, appear to me to
be necessary to examine this particular aspect at this stage
for the reason that on Mr. Brohi's argument the legality of
the actions taken by the new regime is not dependent on
any power derived from Martial Law as such, but rests on
considerations arising out of the alleged break-down of the
pre-existing Legal Order. According to him, it is immaterial
whether the new regime is called a Martial Law regime, or
by any other name. However, it will be necessary to advert
to this question when considering the learned Attorney-
General's contentions.

As already stated, Mr. Brohi has placed reliance on the

concept of revolutionary legality, as expounded by Professor
Hans Kelsen. This concept was adopted by this Court in
Dosso's case, already referred to, but rejected as in the case
of Asn:a Allanl. It, therefore, becomes necessary to examine
these two cases in the light of the submissions now made by
Mr. Brohi in this behalf.

The facts in Dosso's case were that by a Proclamation made

on the 7th of F; October 1958, the President dismissed the
Central Cabinet and the Provincial Cabinets and dissolved
the National Assembly and both the Provincial Assemblies of
East Pakistan and West Pakistan: Simultaneously, Martial
Law was declared throughout the country and General
Muhammad Ayub Khan, Commander-in-Chief of the
Pakistan Army was appointed as the Chief Martial Law
Administrator. Three days later, the President promulgated
the Laws (Continuance in Force) Order; -1958, the general
effect of which was the validation of laws, other than the
late Constitution, that were in force before the
proclamation, and restoration of the jurisdiction of all Courts
including the Supreme Court and the High Courts. The order
contained the further direction that the Government of the
country, thereafter to be known as Pakistan and not the
Islamic Republic of Pakistan, shall be governed as nearly as
may be in accordance with the late Constitution. The
question raised before the Court was whether certain
prerogative writs issued by the High Courts had abated by
reason of the provisions of clause (7) of Article 2 of the
aforesaid Order.

Delivering the judgment of the Court, Muhammad Munir, C.

J. observed that "as we will have to interpret some of the
provisions of this Order, it is necessary to appraise the
existing constitutional position in the light of the juristic
principles which determine the validity or otherwise of law-
creating organs in modern States, which being members of
the comity of nations are governed by International Law. In
judging the validity of laws at a given time one of the basic
doctrines of positivism on which the whole science of
modern jurisprudence rests, requires a jurist to presuppose
the validity of historically the first Constitution whether it
was given by an internal usurper, an external invader or a
national hero or by a popular or other assembly of persons.
Subsequent alterations in the Constitution and the validity
of all laws made there under is determined by the first
Constitution. Where a Constitution presents such continuity.
a law once made continues in force until it is repealed,
altered or amended in accordance with the Constitution. It
sometimes happens, however, that a Constitution and the
national Legal Order under it is disrupted by an abrupt
political change not within the contemplation of the
Constitution. Any such change is called a revolution, and its
legal effect is not only the destruction of the existing
Constitution but also the validity of the national Legal Order.
A revolution is generally associated with public tumult,
mutiny, violence and bloodshed but from a juristic point of
view the method by which and the persons by whom a
revolution is brought about is wholly immaterial. The change
may be attended by violence or it may be perfectly peaceful.
It may take the form of a coup d'etat by a political
adventurer or it may be effected by persons already in-
public positions. Equally irrelevant in law is the motive for a
revolution, inasmuch as a destruction of the constitutional
structure may be prompted by a highly patriotic impulse or
by the most sordid of ends. For the purposes of the doctrine
here explained a change is, in law, a revolution if it annuls
the Constitution and the annulment is effective. If the
attempt to break the Constitution fails those who sponsor or
organise it are judged by the existing Constitution as guilty
of the crime of treason. But if the revolution is victorious in
the sense that the persons assuming power under the
change can successfully require the inhabitants of the
country to conform to the new regime, then the revolution
itself becomes a law-creating fact because thereafter its own
legality is judgment by reference to the annulled
Constitution but by reference to its own success . On the
same principle the validity of the laws to be made thereafter
is judged by reference to the new and not the annulled
Constitution. Thus the essential condition to determine
whether a Constitution has been annulled is the efficacy of
the change . In the circumstances supposed no new State is
brought in to existence though Aristotle thought otherwise.
If the territory and the' people remain substantially the
same, there is, under the modern juristic doctrine, no
change in the corpus or inter- national entity of the State
and the revolutionary Government and the new constitution
are, according to International Law, the legitimate
Government and the valid Constitution of the State. Thus a
victorious revolution or a successful coup d'etat is n
international recognised legal method of changing a
Constitution".

"After a change of the character I have mentioned has taken

place, the national Legal Order must for its validity depend
upon the new law-creating organ. Even Courts lose their
existing jurisdiction, and can function only to the extent and
in the manner determined by the new constitution."

In support of these conclusions, the learned Chief Justice

cited a passage from Hans Kelsen's "General Theory of Law
and State", inter alia, to the effect that:

"This shows that all norms of the old Order have been
deprived of their validity by revolution and not according to
the principle of legitimacy. And they have been so deprived
.dot only de facto but also de jure. No jurist would maintain
that 'I even after a successful revolution the old Constitution
and the laws based thereupon remain in force, on the
ground that they have not been annulled in a manner
anticipated by the old Order itself."

Mr. Brohi, as already stated, has precisely taken this stand

before us, except that instead of describing the revolution as
successful he would use the word effectual or effective, and
would not also go to the extent of conferring permanent
legitimacy on the new Legal Order, leaving this question to
be determined by the future course of events including an
Act of indemnity, if any, by a future Parliament.

The view taken by the Supreme Court in Dosso's case

continued to hold the field for almost fourteen years until it
was brought under challenge in Asma Jillani's case in
connection with an order of detention made under a Martial
Law Order issued by General Agha Muhammad Yahya Khan
and inherited by Mr. Z. A. Bhutto on his assumption of
power as Chief Martial law Administrator on the 20th of
December 1971. It is interesting to observe that in Asma
Jillani's case Mr. Yahya Bakhtiar, the learned counsel
appearing for Begum Nusrat Bhutto, defended the decision
in Dosso's case on various grounds including that of stare
decision whereas the present Attorney General, Mr.
Sharifuddin Pirzada and Mr. A. K. Brohi, learned counsel for
the respondent, criticised this decision while appearing as
amicii curiae. Although a counsel is not bound by the
position he may have taken on a previous occasion, it would
be instructive to note the point of view then advocated by
Mr. Brohi as regards the correctness of the decision in
Dosso's case. On page 171 of the Report, Hamoodur
Rahman, C. J. has observed:

"Mr. Brohi is of the view that the fallacy underlying the

decision in Dosso's case lies in they fact that it has accepted
a purely legal theory of law as a question of law itself.
although it was nothing more than "a question about law"
and no legal judgment could possibly be based on such a
purely hypothetical proposition. He is further of the view
that the Court in making the impugned observations
proceeded clearly upon the assumption that (a) the
revolution, if any, had succeeded and (b) that its own
authority was derived from the Laws (Continuance in Force)
Order. Both these assumptions were wrong. The question as
to whether the revolution, if any, had in fact succeeded in
creating an effective legal order was a question of fact and
had to be decided as such objectively. It was not even gone
into. The decision was, therefore, purely an ad hoc decision,
which cannot be treated as binding."

Muhammad Yaqub Ali, J. summed up Mr. Brohi's position

(on pp. 224-225 the Report), in the following words:

"Mr. A. K. Brohi (amicus curiae) first argued the question

that Courts of Law are, as a matter of legal obligation, bound
by the dictates of the 1962 Constitution and have not
been absolved of that legal obligation by taking cognizance
of the new authority destructive of the established legal
order. He also questioned the nature of the new Legal Order
based on the system officially described as Martial Law. In
his opinion this system was not regulated by any set of legal
principles known to jurisprudence and was merely
contingent on the will and whim of one man . . . . . . He also
attacked the decision in Dosso's case and analysed Kelsen's
theory on which that decision is based. It was argued that
Kelsen's theory that a victorious revolution and successful
coup d'eter are law-creating facts is a mere theory of law as
distinguished from law itself. The function of a theory of law
is to explain or to describe the nature of law or the nature of
s legal system. It is, however, itself not a part of legal system
or the law which it seeks to describe. This according to Mr.
Brohi was the central fallacy in the judgment given by
Muhammad Munir, C. J."

"Mr. Brohi next referred to the decision in the case of

Madzirnbamuto v. Lardner-Burke [(1968) 3 All E R 561] in
which Kelsen's theory of effectiveness was applied. This case
is mentioned by some authors as the grundnorm case. He
pointed out that the decision in this case was the maximum
success which Kelsen could have conceivably envisaged "

"Continuing, Mr. Brohi pointed out that the characteristic o!

forms of civilised Government is that the structural
distribution of power is regulated in a manner that every,
functionary no matter so highly placed is the servant of the
law should a system of Government exist in which power is
regulated and derived not from law, but from force such a
system cannot claim to be a legal system of Government
whatever else it may be ……………..'

"Lastly, Mr. Brohi argued that in Pakistan the real sovereign

is God Almighty and the State of Pakistan has a limited
power of which it is a recipient as a trustee or a delegatee.
On this hyp9thesis he argued that the will of one man was
repugnant to the grundnorm of Pakistan, viz. the Objectives
Resolution and in Pakistan no single man could be the sole
repository of State power. He referred to a passage from his
book: "The Fundamental Laws of Pakistan" that according to
the Western Jurisprudence legal sovereign are the people
who give the first Constitution; that in Pakistan the first
sovereign is God Almighty and the power received from Him
as a delegatee or a trustee is to be exercised by chosen
representatives of the people and not by the will of one
man."

The stand taken by Mr. Sharifuddin Pirzada while appearing

as amicus curiae in Asma Jillani's case may also be briefly
mentioned. Besides contending that toe decision in Dosso's
case was given in haste and against the principles of natural
justice, because no opportunity at all was given to learned
counsel appearing for the respondents to argue the
contrary, he submitted that being a Municipal Court, the
Supreme Court should not have made a rule of International
Law regarding recognition of States the basis of its decision;
that the Court's interpretation of Kelsen's doctrine was
incorrect; that in any event the theory of Kelsen is not a
universally accepted theory and should not have been
applied to the circumstances then prevailing in Pakistan; and
that the doctrine of necessity as a validating factor was not
even noticed. According to Muhammad Yaqub Ali, J., Mr.
Sharifuddin Pirzada added that the decision in Dosso's case
purported to legalise the so-called revolution without any
conditions which authorised absolutism and sanctioned that
might is right; and that effectiveness was not the only
criterion of legitimacy.

It appears that the learned Judges hearing Asma Jillani's case

were greatly impressed by the submissions made by Messrs
A. K. Brohi and Shariluddin Pirzada, with the result that they
unanimously came to the conclusion that Dosso's case had
not been correctly decided. They accordingly proceeded to
overrule the same. In doing so, Hamoodur Rehman, C. J.
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, (i) 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; (ii) 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 (iii) that the rule of International Law
with regard to the recognition of States can determine the
validity also of the States' internal sovereignty . . . . . . . . . . .
."

These assumptions were not justified. Kelsen's theory was,

by no means, g 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
admit to formulate any theory which favours totaliterianism
. . . . 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 jurist's proposition about law. He was not attempting
to lay down any legal norm or 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. Fee did not lay
down the proposition that the command of e person in'
authorities a source-of law . . . . Kelsen's attempt to justify
the principle of effectiveness from the stand-point 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 purpose 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 recogrition 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
....

"The criticism, therefore, is true that the Chief Justice of the

Supreme Court not only misapplied the doctrine of Hans
Kelsen but also fell into error in thinking that it was a
generally accepted doctrine of modern jurisprudence. Even
the disciples of Kelsen have hesitated to go as far as Kelsen
had gone . . . . . ."

"In any event, if a grundnorm is necessary, Pakistan need

not have to look to the Western legal theorists to discover it.
Pakistan's own grundnorm is enshrined in its own doctrine
that the legal sovereignty over the entire Universe belongs
to Almighty Allah alone and the authority exerciseable by
the people within the limits prescribed by Him i9 a sacred
trust. This is an immutable and unalterable form 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 Qur'an . . . . It is under this
system that the Government becomes a Government of
laws and not of men, for no one is above the law . . . . ."

"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."

In view of the position taken up by Mr. Brohi in Asma Jillani's

case, and the success he had in persuading the Court to
agree with him, Mr. Brohi has indeed faced an uphill task
before us to question the correctness of this judgment, in so
far as it rejects the application of Kelsen's pure theory of law
as providing validity to the new Legal Order emerging as a
result of a coup d'etat. He submits that the learned Judges
were in error in analysing the decision in Dossr's cc- as if
they were sitting in appeal; that they also erred in going
behind the facts proved or assumed to have been proved in
that case, namely, that the revolution had become
successful; and that in any case they were not clear in their
mind as to whether Muhammad Munir, C. J. had
misunderstood Kelsen"s theory or misapplied it when
deciding Dosso's case. He has referred us to Quin v. Learhem
1901 A C 495 , Prager v. Blatspiel, Stamp & Heacock Ltd.
1947 A C 156 , Read v. J. Lyons & Co. Ltd. (1924) 1 K B 566
and Candler v. Crane Christmass & Co. (1951) 1 All E R 426,
in support of the proposition that a judicial precedent is not
. to be criticised or taken to pieces in the manner in which
Dosso's case was treated by this Court.

In the first-mentioned case, it was observed by Lord

Halsbury that "while considering a precedent, we must look
at the. hypothesis of fact upon which the case was decided
by the majority of those .who took part in the decision." In
the second case, it was observed that "the object of the
common law is to solve difficulties and adjust relations in
social and commercial life. It must meet,. so far as it can,
sets of fact abnormal as well as usual. It must grow with, the
development of the nation. It must face and deal with
changing normal circumstances. Unless it can do that, it fails
in its function and declines in its dignity and value. An
expanding society demands an expanding common law." In
the next case, the observation relied upon by Mr. Brohi is to
the effect that "your Lordships' task in this House is to
decide particular cases between litigants and your Lordships
are not called upon to rationalise the law of England. That
attractive if perilous field may also be left to other hands to
cultivate." In the last case referred to by Mr. Brohi, it was
said by Lord Denning L. J. that "this argument about the
novelty of the action does not appeal to me. It has been put
forward in all the great cases which have been mile-stone of
progress in law and it has nearly always been rejected ... It
was fortunate for. the common law that the progressive
view prevailed."

I have no cavil with the propositions and observations

referred to by Mr. Brohi, but I do not see how they affect
the correctness of the view taken in Asma Jillani's case. Even
if the Court erred in observing that the assumption
regarding the success of the revolution was not justified for
the reason that a few days after the pronouncement of the
Court President Iskander Mirza was himself deposed by Field
Marshal Muhammad Ayub Khan, and the Court should have
assumed the facts as stated by Muhammad Munir, C. J., the
view taken by the Court as to the applicability of Kelsen's
theory is not affected by this error. The Court has given
sound reasons for rejecting it, particularly the fact that it
was at best a theory about law, which had not been
universally accepted by other renowned jurists. Unless,
therefore, compelling reasons are shown for departing from
the view taken by this Court in Asma Jillani's case, I would
like to adhere to the same for the reasons so ably stated in
the judgments of Hamoodur Rehman, C. J. and Muhammad
Yaqub Ali, J. (as he then was).

Mr. Brohi submits that the logical consequence of this

Court's decision in Asma Jillani's case would be to render
illegal, with retroactive effect, all actions taken during the
time of Field Marshal Mohammad Ayub Khan, including the
Constitution of 1962 which he gave to the nation as the will
of one man ; that the regime of his successor, General Agha
Mohammad Yahya Khan having been specifically declared to
be illegal by the Supreme Court, the usurper could not
legitimately hand over power to Mr. Z. A. Bhutto on the 20th
of December 1971, nor could the latter derive validity for his
Government by getting the Interim Constitution of 1972,
and the permanent Constitution of 1973 passed by a
truncated National Assembly, which was not attended by
nearly 160 members belonging to Fan: Pakistan which had
by that time seceded from Pakistan„ under the name of
Bangla Desh. It appears to Mr. Brohi that these
consequence, were overlooked boy the learned Judges who
decided Asma Jillani's case and rejected Kelsen's theory
regarding the legality of a successful revolution. Mr. Brohi
next submits that in any case, in the subsequent case of
State v. Zia-ur-Rehman P L D 1973 S C 49, the Supreme Court
itself backed away from the grundnorm provided by the
Objectives Resolution, on which it had tried to base itself in
Asma Jillani's case in the absence of any other concept of
legitimacy.

The answer to some of these criticisms is to be found in the

several judgments delivered in Asma Jillani's case. On p. 161
of the Report, it is observed by Hamoodur Rehman, C. J. that
"the country by and large accepted the 1962 Constitution
and even the Judges took oath under the fresh Constitution.
Two President:--elections were held under this Constitution,
the erstwhile Commander-in-Chief was elected on both
occasions. National arid Provincial Assemblies were set up
and the country continued to be governed era accordance
with its term-- till the 25th of March 1969 . . . . ."

"The Courts is the country also gave full effect to this

Constitution and adjudicated upon the rights and duties of
citizens in accordance with the terms thereof by recognising
this law constitutive medium as a competent authority to
exercise that function and also enforce the laws created by
that medium in a number of cases . . . . . ."

"Thus even -according to the arguments advanced by the

learned counsel appearing for the appellant: all the laws
made and acts done by the various Governments, civil and
military, became lawful and valid by reason of the
recognition given to them by the new Constitution and the
Courts. They had riot only de facto validity but also acquired
de jure validity by reason of the unquestioned recognition
extended to them by the Courts of highest jurisdiction in the
country. The validity of the acts done there under is no
longer, therefore, open to challenge, even under the
concept of law propounded by the realist school of jurists
and adopted by the learned counsel for the appellants."

On the same subject. Mohammad Yaqub Ali, J. went a step

further and remarked as under;--'

"The Attorney-General lastly urged that by challenging the

validity of Martial Law imposed by Yahya Khan who was no
longer in power the intention in fact was to dispute the
legality of the present Government. In reply, Mr. Manzoor
Qadir acknowledged the legitimacy of the Government
headed by Mr. Z. A. Bhutto as Chairman of the majority
party in the National Assembly, and said it was based on the
will of the chosen representatives of the people. This was
the reason behind the plea raised by him that the invalidity
in the Legal Framework Order (issued by General Yahya
Khan;) did not affect the legality of the Elections held under
it to the National Assembly and the Provincial Assemblies.
This coincided with the position taken up by the Attorney-
General that Mr. Z. A. Bhutto was not the recipient of power
from Yahya Khan and that he held the office of President as
leader of the majority party in the National Assembly. We
also take judicial notice of the fact that after arguments
were concluded in these appeals, tile National Assembly met
and unanimously expressed confidence in the Government
of Mr. Z. A. Bhutto. An Interim Constitution has also been
passed and Mr. Z. A. Bhutto is to be inaugurated as
President under this Constitution on the 21st of April 1972.
The legitimacy of tier, present Government is thus beyond
the shadow of doubt." .

In the judgment of Salahuddin Ahmed, J. it was observed

that the Supreme Court had derived its power from the
1962` Constitution, because that was the only legal
instrument under which the instrument of Supreme Court
was established. The learned Judge wells can to state that as
soon as General Agha Mohammad Yahya Khan made his exit
from the scene the 1962 Constitution which had been
dormant in the meantime revived.

It will thus appear that all the members of the Court which
decided Asma Jillani's case, were ,agreed that even though
the 1962 Constitution was given by one man, namely, Field
Marshal Mohammad Ayub Khan, it . had acquired validity by
its general acceptance by the people of Pakistan and
recognition by the superior Courts, and. it was on the basis
of this assumption that they declared General Agha
Mohammad Yahya Khan to be a usurper, inasmuch as he
had abrogated, without lawful authority, the pre-existing
1962 Constitution of the Islamic Republic of Pakistan. The
observations made by Mohammad Yaqub Ali, J. regarding
the legitimacy of the successor Government of Mr. Z. A.
Bhutto were not endorsed by ~ the other Judges of the
Court but this question was directly answered in the
affirmative in the subsequent case of Zia-ur-Rehman, when
it was observed that ;---

"After the abrogation of the Constitution of 1962 and the

establishment of military rule, the Legal Framework Order
was clearly an endeavour to restore the principles of
democracy wherein the State was to exercise its powers
through the chosen representatives of the people and frame
a Constitution for the State of Pakistan, wherein the
Muslims shall be enabled to order their lives in the individual
and collective spheres in accordance with the teachings and
requirements of Islam as set out in the Holy Qur'an and
Sunnah as envisaged by the Objectives Resolution itself. This
was clearly, therefore, a step towards achieving the goals set
out in the Objectives Resolution and for making provisions
for the orderly and ordinary running of the Government of
the country through the chosen representatives of the
people. If there was any act of the usurper which could be
condoned on the basis of the doctrine of necessity, then this
was pre-eminently such an act. This was the first time that
the representatives of the people had been chosen in the
country by fret: and fair elections on the basis of adult
franchise. The credentials of the people so elected were not,
therefore, open to challenge on any principle of democracy,
and since they had been elected under the Legal Framework
Order, they had also been given a mandate by the people to
make provision for the Constitution of Pakistan.

“The question then arises as to whether the fact that 160

male and seven female members (from East Pakistan) could
not or did not participate in the proceedings of the National
Assembly would make a difference either to the effective
working of the Assembly or to the validity of the
Constitution unanimously adopted by it. If the majority of
the members had been forcibly prevented or otherwise
wrongfully excluded from participating in its proceedings,
there may have been some scope for contending that the
Constitution produced was not a valid document. In the
absence, however of any evidence to show that any one was
so prevented, excluded or prohibited from attending the
meeting of the National Assembly convened for the purpose
of framing the Constitution, it cannot be said that the
meeting of the National Assembly, which mustered the
necessary quorum required by Article 17 of the Legal
Framework Order and adopted a Constitution, was lacking in
competence or was not a legally constituted body or that its
acts were open to challenge on the ground that the majority
of the members of the House were not present . . . . It
cannot be invalidated 'merely on the ground that a large
number of members were not present or did not
participate."

Nothing was said at the Bar by Mr. Brohi to persuade the

Court to take a view different from the one reproduced
above in regard to the validity of the Constitutions of 1962,
1972 and of 1973. Accordingly, it seems to me that the
apprehension expressed by the learned counsel that the
decision of this Court in Asma Jillani's case had the effect of
rendering illegal all the successive governments of Pakistan,
and the Constitutions framed during their times is not well-
founded, and in any case stands effectively repelled by the
decisions just mentioned. As a result, it follows that the
controversy in the present case must proceed on the
assumption that - the 1973 Constitution had been validly
framed and was in force when the Chief of the Army Staff
proclaimed Martial Law on the 5th of July 1977.

Similarly, Mr. Brohi's criticism that, in Ziaur Rehman's case,

the Supreme Court has itself backed away from the
grundnorm provided by the Objectives Resolution on which
it had tried to base itself in Asma Jillani's case, is not
justified. While explaining his observations on this subject in
Asma Jillani's case, Hamoodur Rehman, C. J. stated that it
was not correct to say that in that case the Court had
declared that the Objectives Resolution adopted by the first
Constituent . Assembly of Pakistan on the 7th of March 1949
was the grundnorm for Pakistan, and therefore, impliedly
held that it stood above even the Interim 'Constitution or
any Constitution that might be framed in the future. After
citing the relevant passages from the various judgments
delivered in Asma Allani's case, his Lordship concluded that
"it will be observed that this does not say that the Objectives
Resolution is the grundnorm but that the r norm is the
thereof legal sovereignty accepted the people of Pakistan an
to consequences that the flow from it I did not described
the objectives Resolutions as a corner-stone of Pakistan’s
legal edifice, but merely pointed out that one of the learned
counsel appearing in the case had described it as such . . . . ."
His Lordship then proceeded to clarify that "The Supreme
Court has never claimed to be above the Constitution nor to
have the right to strike down any provision of the
Constitution." I think these observations by Hamoodur
Rehman, C. J. effectively answer the point sought to be
made by Mr. Brohi.

The question, however, is whether these opinions about the

status of the Objectives Resolution or the legal doctrine of
sovereignty obtaining in Islam, serving as grundnorm for
Pakistan, even if somewhat contradictory in character as
considered by Mr. Brohi, affect the correctness of the view
taken by the Court in Asma Jillani's case regarding the
concept of revolutionary legality. It appears to me that while
a mention of the concept of grundnorm become:
unavoidable when discussing Hans Kelsen's pure theory of
law, yet the opinion of the Court as to its soundness and
application to the circumstances presented by the seizure of
power by General Agha Mohammad Yahya Khan in March
1969 is not based on these considerations ; rather it
proceeds on a detailed consideration of the opinions of
Western jurists regarding the concept of law, which reject
the idea of effectiveness or effectualness as being the only
criterion for its validity. Such being the case, no modification
of the view taken in Asma Jillani's case is called for simply on
the ground that in Zia-ur-Rehman's case. the Objectives
Resolution of 1949 was not treated as the grundnorm for
Pakistan, although it appeared to have been so treated in
Asma Jillani's case.
Mr. Brohi submits that the position taken up by him
regarding the legality of an effectual new regime established
as a result of suppression or destruction of the old Legal
Order finds full support from the several judgments
delivered by the High Court in the famous case from
Southern Rhodesia, the Privy Council judgment in which is
reported as Madaimbamuto v. LardnerBurke and another
(1968) 3 All E R 561. Learned counsel wishes to adopt the
reasoning of Macdonald, J. of the Appellate Division of the
High Court of Rhodesia as embodying his submissions in this
behalf.

I find that this case was fully noticed in the judgment of

Muhammad Yaqub Ali, J. in the case of Asma Allani, and the
learned Judge expressed his agreement with the submission
made by Mr. Brohi on that occasion that "the view
expressed by the Judges of the High Court of Rhodesia was
the maximum success for the theory of effectiveness which
Kelsen could have conceivably envisaged." This remark
appears to imply that the judgment did not really go far
enough to support Kelsen's theory in its entirety. In the
circumstances, it would not have been necessary to go over
the same ground again, except for the fact that Mr. Brohi
relies very heavily on the propositions stated by Macdonald,
J.

The facts of that case need not be stated at any length

except to say that in 1965 the Government of Ian Smith
overthrew the 1961 Constitution given to Southern Rhodesia
by the British Parliament, and made a Unilateral Declaration
of Independence to the effect that Southern Rhodesia was
no longer a Crown colony but an independent sovereign
State. The Parliament of the United Kingdom did not
recognise this Unilateral Declaration of Independence, but
continued to assert that it had responsibility and jurisdiction
for the colony. The Governor, appointed by Her Majesty the
Queen, dismissed Mr. Smith and other Government
Ministers and called on all citizens to refrain from acts which
would further the objectives of the illegal authorities, but
added that it was a duty of all citizens to maintain law and
order and to carry out their normal tasks. . This applied
equally to the Judiciary, the Armed Forces, the Police and
the public service. The dismissal of the Prime Minister and
other ministers was ignored and a new Constitution was
adopted, and thereafter the usurping Government
proceeded on the basis that the 1965 Constitution had
superseded the 1961 Constitution. Madzimbamuto, the
appellant before the Privy Council, questioned the legality of
her husband's detention under an Emergency Regulation
continued in force by the Rhodesian authorities after the
Unilateral Declaration of Independence.

The case first came up before a Division Bench comprising

Lewis, J. and Goldin, J., who held that the 1965 Constitution
was not the lawful Constitution and that Mr. Smith's
Government was not a lawful Government but they held
that necessity required that effect should be given to the
emergency power Regulations and, therefore, the detention
of the appellant's husband was lawful. The five Judges of the
Appellate Division delivered separate judgments. Beadle, C.
J. took the view that "The status of the present Government
today is that of a fully de facto Government in the sense that
it is in fact in effective control of the territory and this
control seems likely to continue. At this stage, however, it
cannot be said that it is yet so firmly established as to justify
a finding that its status is that of a de jure Government." He
further held that "the present Government, having
effectively usurped the Governmental powers granted to
Rhodesia under the 1961 Constitution, can now lawfully do
anything, which its predecessors could lawfully have done,
but until its new Constitution is firmly established and thus
becomes the de lure Constitution of the country, its
administrative and legislative acts must conform to the 1961
Constitution. Jarvis, A. J. A. was in general agreement with
Beadle, C. J., whereas Field send, A. J. A. expressed his
conviction that a Court created in terms of a written
Constitution bad no jurisdiction to recognise either as a de
jure or de facto Government, any Government other than
that constitutionally appointed under that Constitution.
However, he went on to consider the doctrine of necessity
for validating certain acts of the present authorities.
Macdonald, A. J. A. and Quenet, J. took the view that
"allegiance to the State imposes as one of its most
important duties obedience to the laws of the sovereign
power for the time being within the State", and "so far as a
municipal Court is concerned a de facto Government is a de
jure Government in the sense that it is the only law-making
and law -enforcing Government functioning for the time
being within the State."

Mr. Brohi submits that in coming to this conclusion this

learned Judge was influenced, among others, by the opinion
expressed by Sir Ivor Jennings in his book "The Law and the
Constitution" to the effect that "All revolutions are legal
when they have succeeded and it is the success denoted by
acquiescence which makes their Constitutions law." Mr.
Brohi also draws our attention to the fact that Macdonald,
A. J. A., has, in the body of his judgment, exhaustively traced
the history of constitutional development in England for
coming to the conclusion that under the English law duty of
allegiance lies to a de facto sovereign. The learned counsel
particularly wishes to rely on the conclusions reached by this
learned Judge to the effect that "the lesson to be gleaned
from the history of the English law is that Judges should not
allow themselves to be embroiled in political controversy
and in particular should not take part in revolutionary or
counter revolutionary activity ….The more unsettled the
time an the greater the tendency towards the disintegration
of established institutions, the more important it is that the
Court should proceed with the vital, albeit, unspectacular
task of maintaining law and order and by so doing act as a
stabilising force within the community. This objective can
only be achieved if the acts of a Government for the time
being within the State are given the force of law".

On appeal to the Privy Council, Lord Reid, delivering the

majority judgment, rejected Kelsen's theory of effectiveness
and held "with regard to the question whether the usurping
Government can now be regarded as a lawful Government,
much was said about de facto and de lure Government.
Those are concepts of International Law and, in their
Lordships' view, .they are quite inappropriate in dealing with
the legal position of a usurper within the territory of which
he has acquired control . . . . . It happens not infrequently
that the Government recognises a usurper as the de facto
Government of a territory while continuing to recognise the
ousted sovereign as the de lure Government. But the
position is quite different where a Court sitting to a
particular territory has to determine the status of a new
regime which has usurped power and acquired control of
that territory."

Lord Pearce, in a dissenting judgment, observed that "the de

facto status of sovereignty could not be conceded to a rebel
Government as against the true sovereign in the latter's own
Courts, but the principle of implied mandate (i.e. that acts
done by those actually in control without lawful validity)
might be recognised as valid or acted on provided that they
were directed to and reasonably required for ordinary,
orderly running of the State. that they did not impair the
rights of the citizens under the lawful Constitution, and that
they were not intended to (and did not in fact) directly help
the usurpation and did not run contrary to the policy of the
lawful sovereign."

Considering the divergence of opinion expressed by the

learned Judges who have dealt with this case at various
stages, it cannot be said that it provides any effective judicial
precedent, capable of application in subsequent cases. The
decision in this case has, however, been commented upon
by several learned authors, and it may be useful td briefly
refer to them at this stage.
In an Article entitled "Splitting the Grundnorm", printed in
1967 Modern Law Review, Vol. 30, J. M. Eekelaar has
analysed the various judgments at some length, and reached
the conclusion that they have the effect of splitting the
grundnorm between the de lure Constitution of 1961 and
the de facto authority of Ian Smith who gave the 1965
Constitution. He observes that the Smith regime would find
little comfort in the judgment as it does not recognise its
legality but merely treats it as a de facto authority in
Southern Rhodesia.

In another Article appearing in the same volume of Modern

Law Review under the heading "The Judicial Process: UDI
and the Southern Rhodesian Judiciary", by Claire Palley, the
social backgrounds of the Judges concerned have been
mentioned as influencing the view they took in this case,
and it is stated that the Judges were reluctant to pronounce
on the validity of Smith regime, although they were willing
to validate actions of the regime on the doctrine of
necessity." As a result, "although they virtually rejected the
Kelsen's doctrine and the 1965 Constitution, and
distinguished between de lure authority and legality which
they would not enforce. and effective authority and law and
order which they would enforce, it is clear that in Rhodesia
the regimes edicts are laws enforced in the Austinian sense
by the Courts".

Commenting on this case under the heading "Legal Politics:

Norms Behind the Grundnorm" in 1968 Cambridge Law
Journal (Vol. 26), R. W. M. Dias observes that "the above
review of the case shows that as to the lawfulness of the
Smith regime, the weight of judicial opinion was overwhelm-
ingly against it, notwithstanding its effectiveness." He is also
critical of the judgment delivered by Macdonald, J.
observing that: "In the first place, he begs the essential
question which is not whether there is a duty to obey the
laws of the Government for the time being but whether its
decrees are laws. Secondly, to make effectiveness the only
criterion of its legality is to abandon judicial independence . .
. . . Fourthly, what an incentive to rebellion the judgment
provides." The learned author goes on to state "What then
are the implications of the grundnorm case. The most
obvious one is that it has revealed shortcomings in what
Kelsen has taught. He said in one place that the grundnorm
imparts legality as long as the total Legal Order is effective.
The grundnorm case shows that although the Smith regime
was totally effective, it was not lawful. But at the same time
that only some of its decrees were to be treated as laws: On
the other hand, the old order was totally ineffective, yet it
possessed an important controlling influence." He remarks
further "when there is as yet no accepted grundnorm, as in
the midst of a revolution, the Courts may nonetheless
accept as laws propositions identified with reference to
whatever criterion they choose; which is precisely what
happened in the grundnorm case. This, as pointed out
earlier, is how laws and lawfulness of their origin come to be
distinguishable".

This Article contains very useful observations as to the

content of law, which have direct relevance for us in the
present context. Dias observes that "Rules and legal
phenomenon do not exist only for the instant; they endure,
be it for short or indefinite periods. The concept of enduring
laws is more in accord with experience than that of
instantaneous laws just as enduring human beings are more
real than instantaneous ones. The concept of any
phenomenon as a continuing thing must necessarily include
the factors essential to continuing as an integral part of it .
These would includes the factors but for which it would not
have come into being and continued to be, as well as those
involved in its function and functioning . . . . . . The
grundnorm is an enduring phenomenon, and , it is
insufficiently appreciated that not only effectiveness but
also conformity to morality and justice is among the very
springs of its, being and on continued life".

The above reviews of the judgments delivered in the

Southern Rhodesian case are, I think, sufficient to show that
this case cannot be regarded as a judicial authority for the
proposition canvassed by Mr. Brohi, namely, that
effectualness of the new regime provides its own legality.
On the contrary, of weighty criticism has been levelled
against the doctrine on the ground that it seeks to exclude
all considerations of morality and justice from the concept
of law and legality.

In the two leading judgments delivered in Asma Jillani's case

by Hamoodur Rehman, C. J. and Muhammad Yaqub Ali, J. (as
he then was) copious references have been made to the
opinions of renowned writers who do not endorse Kelsen's
view regarding revolutionary legality. It was pointed out that
writers like Garner, G. C. Field, Professor Harold Laski and
Dean Roscoe Pound had not supported the proposition that
a de facto sovereign could become de jure by exacting
obedience by force or coercion; on the other hand, they had
expounded the doctrine that de facto sovereignty becomes
de jure by consent and the development of the habit of
obedience, and that a de facto sovereign gets his position
confirmed by an election or ratification by the people by
habitual obedience over a sufficiently long period of time,
and then alone he can claim to have acquired de lure
sovereignty as well.

A brief reference has already been made to the views of

more modern writers like Eekelaar and Dias. A few further
references will not be out of place. In an Article entitled
"Principles. of Revolutionary Legality" included in the Oxford
Essays on Jurisprudence, 2nd Series, 1973, the
first-mentioned author has attempted to enumerate the
principles that may be relevant to a division whether
revolutionary activity should be given legal justification, so
as to salvage this area of investigation from total extinction
by the operation of positivist dogmatism. In his view the
principles pertaining to revolutionary situations are:-

(i) The principle of effectiveness;

(ii) The , principle of legitimate disobedience to authority

exercised for improper purpose;

(iii) The principle of necessity;

(iv) The principles that violation of a right demands a

remedy and that no one should profit from his own wrongful
act. As a revolution will invariably have involved the
violation of some of the rights protected by the previous
Constitution, a combination of these principles suggests
that, even if the new order is considered legitimate, some
recompense should be offered to those whose rights were
infringed;

(v) The principle that a Court will not permit itself to be used
as an instrument of injustice;

(vi) The principle that it is in the public interest that those in

de facto impregnable control should be accorded legal
recognition. It gives effect to the acceptable policy value
that it is in the interest of the community that order be
preserved. But one might be reluctant to hold that it is the
only relevant principle and that there cannot be others
which would militate against automatically accepting
revolutionaries as legitimate regardless of any other
circumstance;

(vii) The principle that Government should be by the consent

of the governed, whether voters or not. There is nothing
new in this principle. Authority can be found in political
writings at least from the middle ages to the present day.

It appears to the learned author that "the most important

advantage to be gained by the recognition of principles of
this kind is that revolutionary situations would no longer be
seen in absolute terms : that either the usurpers must
always and inevitably remain illegitimate, or that they must
always and inevitably be held legitimate once they have
succeeded, irrespective of the reasons why they took power,
how they have behaved while in power and how long they
have held power. The answer to the problem of legitimacy
may be a qualified one, involving the judicious balancing of a
wide variety of factors".

The views of Dias on the Rhodesian case, and incidentally on

Kelsen's theory, as appearing in an Article written by him,
have already been mentioned. Reference may also be made
to some observations appearing in his book on
Jurisprudence. In Chapter IV under the heading "The
Problem of Power'.", Dias writes that "the effectiveness of a
legislative medium, it should be emphasized, is not a
condition of its own law quality or of its enactments, but
only a factor which influences Courts to accept and continue
accepting- it. A situation may be supposed in the midst of a
revolution where the old order has gone and no new order
has effectively replaced it. In such a lacuna the Courts can
continue to apply as laws the enactments of the old order
even though it is no longer effective . . . ."

"Not only is the legality of a revolutionary regime

independent of effectiveness, but it also has jurisdictional
and temporal dimensions. Thus. although the Rhodesian
regime was eventually accepted as legal by the Rhodesian
Courts, (A. 0- intervening) [(1970) 3 All E R 572), a British
Court refused to recognise a divorce decree pronounced by
a Rhodesian Judge who had not taken the oath under the
1961 Constitution. This shows that legality depends on the
jurisdiction in which the matter is considered, quite apart'
from effectiveness. The temporal dimension is brought out
by a decision of the Pakistan Supreme Court, Jillani v,
Government of Punjab, which rejected effectiveness
altogether as the criterion of legality. In an earlier case The
State v. Dosso, the Supreme Court bad held that a
revolutionary regime, which was effectively in power was
legal and had thereby destroyed the previous Constitution
no matter how or by whom that change had been brought
out. In Jillani's case, the Supreme Court rejected this as a
wholly unsustainable proposition and overruled Dosso. The
point, however, is that this decision was given after that
revolutionary regime had been itself overthrown so that the
declaration that it was illegal ab initio was retrospective."

He goes on to state that "In the result it would seem that the
effectiveness of the legislative authority is not a condition of
the validity either of laws or even of itself. It is a factor
which in time induces the Court to accept such authority . . .
That consonance with morality and the social political
background also play a part in bringing about the
acceptance of a law constitutive medium . . . . There L thus
an arguable case for saying that Courts should .take account
of the morality for which a law constitutive medium stands
in deciding Miether to accept it or not . . . . .

'In Chapter XVI of the same book under the heading "The
Pure Theory", Dias examines Kelsen's theory at some length,
and, after discussing the concept of the grundnorm, he
observes that; some writers have pointed out, with a hint , f
criticism; that in whatever way effectiveness of grundnorm
is measured. Kelsen's theory has ceased to be pure on this
point. for b effectiveness would seem to depend on, those
very sociological factors which he so vehemently excluded
from his theory of law . .-. . . , The force of this point may a
seen when one asks why a particular grundnorm was
accepted, especially if it followed on a revolution, might it
not be that the new criterion of validity was able to
command a minimum of effectiveness because it was
thought to guarantee that measure of justice and morality
which the, previous criterion did not . On this line . of
argument the grundnorm is effective, and continues to be
effective, in so far as an element of morality is built in as
part of the criterion of validity. If so, the continued validity
of every proposition of law derived from the validating
source has an ethical background and the separation of law
from morality would cease to exist . . . . . . All this amounts
to a formidable argument levelled not merely at Kelsen, but
at positivism in genera, It is sufficient here to observe that, if
sound, it would strike at the foundation of his separation of
is and ought."

A brief reference may also be made to the views expressed

by De Smith in his book "Constitutional and Administrative
Law". In Chapter III, under the heading "Ultimate Authority
in Constitutional Law", he discusses the problems posed by
situations involving a breach of legal continuity, be it
peaceful or accompanied by coercion and violence. Such a
situation may have to be treated as superseding the
Constitutional and Legal Order and replacing it by a new
one. He states that "Legal theorists have no option but to
accommodate their concepts to the facts of political life.
Successful revolution sooner or later begets its own legality.
If, as Bans Keen arms postulated , the basic norm or ultimate
principle underlying a constitutional order is that the
Constitution ought to be obeyed then the disappearance of
that order followed by acquiescence on the part of officials,
Judges and the general public in laws, rules and orders
issued by the now holders of power, will displace the old
basic norm or ultimate principle and give rise to a new one.
Thus might becomes right in the eye of the law."

"This is a persuasive rationalisation of the legal consequence

of a successful revolution like the rebellion of the American
Colonists or the English revolution of 1688. It does not,
however, answer all questions. It ode description not a
prescription It does not dictate what attitude Judges and
official ought to adopt when the purported breach of legal
continuity takes place . . . . .'

"Sooner or later a breach of legal continuity will be treated

as laying down legitimate foundations for a new
constitutional order, provided that the revolution is
successful, there is, however, no neat rule of thumb
available to Judges during or immediately after the
revolution for the purpose of determining whether the old
order survives wholly, in part or not at all."

"One other comment must be made. In some situations

where unconstitutional action has been taken by persona
wielding effective political power, it is open to a Judge to
steer a middle course. He may find it possible to hold that
that framework of the pre-existing order still survives, but
that deviations from its norms can be justified on grounds of
necessity. The principle of necessity rendering lawful what
would otherwise be unlawful, is not unknown to English
Law; there is a defence of necessity, (albeit of uncertain
scope) in criminal law- and- in -constitutional law the
application f Martial Law is but an extended application of
this concept But the necessity must be proportionate to the
evil to be averted and acceptance of the principle does not
normally imply total abdication from judicial review, or
acquiescence in suppression of the Legal Order; it is
essentially a transient violation. State necessity has been
judicially accepted in recent years as a legal justification for
ostensibly unconstitutional action to fill a vacuum arising
within the constitutional order in Pakistan, Cyprus, Rhodesia
and Nigeria. To this extent it has been recognised as an
implied exception to the letter of the Constitution. And
perhaps it can be stretched far enough to bridge the gap
between the old Legal Order and its successor."

Lastly, it would be instructive to refer to certain statements

made by Professor Kelsen himself while replying to certain
criticisms made against his pure theory of law by Professor
Julius Stone of the University of Sydney, Australia. Writing in
the 1965 Stanford Law Review (Vol. 17), Kelsen first quotes a
passage from Professor Stone to the effect that "The fact . . .
. . that Kelsen's theory at its formulative stage did not clearly
distinguish the legal norms from the propositions at sheds
revealing light on one of the most dogmatic of Kelsen's
early positions. This is that a Judge (and indeed any lawyer)
must, in order properly to perform his function, operate in
accordance with the pure theory of law . . . . . As soon,
however, as they (the proposition about law) are
distinguished, as Kelsen now admits they must be, then it is
clear that the propositions of the pure theory of law are
mere juristists' propositions about law, and they do not bind
the Judge, in the way in which legal norms bind him." He
then proceeds to reply to this criticism by saying that
"Never, not even in the earliest formulation of the pure
theory of law did I express the foolish opinion that the
propositions of pure theory of law bind the Judge in the way
in which legal norms bind him. In so far as the Judge in
performing his function of applying and creating law adopts
a theory of law his position is the same as that of any other
lawyer. And as far as the lawyers are concerned, I tried, of
course, to convince them that my theory is correct, as every
body who presents a theory tries to convince others of its
correctness. But this does not mean that I considered the
propositions of the pure theory of law as legally binding . . . .
."

From what has been said in the preceding paragraphs, it

become abundantly clear that Kelsen's pure theory of law
has not been universally accepted; nor is it indeed a theory
which could claim to have become basic doctrine of the
science of modern jurisprudence. It has also no found
consistent or full application in all revolutionary situations
which have come before the Courts for adjudication as to
the validity of the new Legal Orders resulting from such
revolutions. Indeed, Professor Kelsen has himself stated that
never did he express the foolish opinion that the
propositions of his pure theory of law bind the Judge in the
way in which legal norms bind him. Hamoodur Rehman, C. J.
has rightly observed in Asma Jillani's case that Kelsen was
propounding a theory of law as a mere jurists' proposition
about law but was not attempting to lay down any legal
norm or norms which are the daily concern of Judges, legal
practitioners or administrators: and that Kelsen did not
attempt to formulate a theory which favoured
totalitarianism as he attached the greatest importance to
keeping law and might apart.

Kelsen's theory is also open to serious criticism on the

ground that by making effectiveness of the political change
as the sole condition o criterion of its legality, it excludes
from consideration sociological facto of morality and ,justice
which contribute to the acceptance or effectiveness of the
new Legal Order. It must not be forgotten that the
continued validity of the grundnorm has an ethical
background, in so far as an element of morality is built in it
as part of the criterion of its validity.

These considerations assume special importance in an

ideological State like Pakistan. which was brought into being
as a result of the demand of the Muslims of the
Indo-Pakistan sub-continent for the establishment of a
homeland in which they could order their lives in accordance
with the teachings of the Holy Qur'an and Sunnah. When the
demand was accepted, it was given effect to by means of a
Constitution passed by the British Parliament, which held
sovereignty over India in 1947. In other words, the birth of
Pakistan is grounded both in ideology and legality.
Accordingly, a theory about law which seeks to exclude
these considerations, cannot be made the binding rule of
decision in the Courts of this country.
It follows, therefore, that the legal consequences of an
abrupt political change, of the kind with which we are
dealing in this case, must be judge not by the application of
an abstract theory of law in vacuum, but by consideration of
the total milieu in which the change is brought about,
namely, the objective political situation prevailing at the
time, its historical imperatives and compulsions; the
motivation of those responsible for the change, and the
extent to which the old Legal Order is sought to be
preserved or suppressed. Only on a comprehensive view of
all these factors can proper conclusions be reached as to the
true character of the new Legal Order.

One last comment may also be offered in this behalf,

namely, that the theory of revolutionary legality, as
propounded by Mr. A. K. Brohi can have no, application or
relevance to a situation where the breach of legal continuity
is admitted, or declared, to be of a purely temporary nature
and for a specified limited purpose. Such a phenomenon can
more appropriately be described as one of constitutional
deviation rather than o revolution. It will indeed be highly
inappropriate to seek to apply Kelsen's theory to such a
transient and limited change in the legal o constitutional
continuity of a country, thus giving rise to unwarranted con-
sequences of a far-reaching character not intended by those
responsible for the temporary change.

On this view of the matter, I consider that no justification

has been made out for resurrecting Dosso's case in
supersession of the view adopted by this Court in Asma
Jillani's case regarding the application of Kelsen's theory of
revolutionary legality in the circumstances obtaining in
Pakistan In other words, I would still prefer the view
advocated by Mr. Brohi in that case to the stand taken by
him before us, which seeks to rob the present political
change of all its moral content, and also leaves its legal
character uncertain and undecided.

The stage has now been reached for a somewhat detailed

examination of the circumstances culminating in the
imposition of Martial Law on the 5th of July 1977. A brief
mention thereof has already been made in the earlier part
of this judgment while summarising the contentions raised
by Messrs A. K. Brohi and Sharifuddin Pirzada. It may be
stated that many of the averments made in this behalf in the
written statement filed by Mr. A. K Brohi have teen
strenuously controverted by the detenus who have filed
written rejoinders and also appeared in person before the
Court. Mr. A. K. Brohi has filed a rejoinder in reply to these
statements of the detenus, and Mr. Zulfikar Ali Bhutto has
filed a further written statement in response thereto. An
affidavit of General (Rtd.) Tikka Khan, a former Chief of Stall'
of the Pakistan Army and Minister of State in Mr. Bhutto's
Government has also been placed on the record in
refutation of certain actions attributed to him in the
respondent's written statement. While taking note of all
these statements and counter statements, I think that in the
present proceedings the Court is not called upon to record a
judicial finding as to the factual correctness or otherwise of
the several allegations and counter allegations made by the
parties against each other. The Court is primarily concerned
with ascertaining the broad trends and circumstances which
culminated in the overthrow of the Government of Mr. Z. A.
Bhutto. For this purpose, we must take judicial notice of
various events which happened in the country during the
period commencing from the 7th of March 1977 on which
date the general Elections to the National Assembly of
Pakistan were held, resulting in an overwhelming majority
for the Pakistan People's Party led by Mr. Z. A. Bhutto.
Ample material appears to be available on the record of this
Court to enable us to arrive at the necessary conclusions.

The National Assembly of Pakistan, consisting of members

elected from the four Provinces of West Pakistan in 1971,
was dissolved in January this year by the President of
Pakistan acting on the advice of the then Prim Minister Mr.
Z. A. Bhutto; similar action was taken by the Governors of
the four Provinces in respect of the Provincial Assemblies in
the Punjab, Sind, N.-W. F. P. and Baluchistan. Fresh elections
were ordered to be held to all these legislative bodies within
90 days of the date of dissolution as required by clause (2) of
Article 224 of the 1973 Constitution. An intensive politics
campaign was launched by the Pakistan People's Party, and
the Pakistan National Alliance, a combination of Nine
Opposition parties, headed by Maulana Mufti Mahmood.
Most political observers, including the to leadership of the
Pakistan People's Party, expressed the view that the election
were going to be hotly contested between the two major
parties, although Mr. Z. A. Bhutto and other leaders of his
party expressed the confidence that they would get
comfortable majority at the Centre and in all the four
Provinces so as to be able to form the Federal and the
Provincial Governments. However, when the results of the
polling to the National Assembly seats were announced by
the evening of the 7th of March 1977, the People's Party
was found to have obtained U5 seats out of the total of 200
seats of the National Assembly, including a large number of
those seats, particularly in the Punjab, where its success
was, to say the least. very doubtful.

The Pakistan National Alliance refused to accept the results.

and alleged massive rigging of the elections by Government
officials under the direction of Mr: Z. A. Bhutto. They also
decided to boycott the polling to the Provincial Assemblies
which was to be held three days later. The Pakistan .National
Alliance called for a country-wide protest movement against
the rigging of elections in contravention of the constitutional
mandate. The agitation gained rapid momentum and spread
to all parts of the country. The main demands of the
Opposition were resignation of the Prime Minister,
resignation of the then Chief Election Commissioner, and
fresh elections to the National and Provincial Assemblies. As
the demands were not conceded, the agitation continued
and soon assumed a violent form resulting in widespread
disturbances, which continued to grow in magnitude. It soon
became apparent that they were beyond the control of the
civil armed forces, with the result that the Army had to be
called out in many places. On the 21st of April 1977, the
Federal Government of Mr. Z. A. Bhutto issued a direction
under Article 245 of the Constitution calling upon the Armed
Forces to act in aid of civil power in Karachi, Lahore and
Hyderabad towns. Troops were also called out in aid of civil
power by the local executive authorities in many other
towns under .the provisions of the Code of Criminal
Procedure.

The agitation, however, continued unabated, resulting in

extensive damage to public and private property and heavy
loss of life, details of which will be given presently. Protest
marches continued in defiance of the orders made by the
local Martial Law Administrators, and many instances of
ridiculing army personnel were reported from various
towns. The top leadership of the Pakistan National Alliance,
and a large number of their followers were arrested
throughout the country, and their trial by military Courts
was also authorised. As these repressive measures did not
appear to produce the desired results, Mr. Z. A. Bhutto
announced in May 1977 that as he could not sacrifice the
National Assembly on the demand of the Opposition, he
would offer himself for a Referendum as to whether he
should continue as the Prime Minister of the country or not,
and for this purpose Seventh Amendment to the
Constitution was passed by the National Assembly on the
12th of May 1977. However, the Opposition rejected this
device and the agitation continued.

In these circumstances Mr. Bhutto agreed in principle" to

hold fresh elections to the National Assembly, and offered to
enter into a dialogue with the leaders of the Pakistan
National Alliance. The talks commenced on the 3rd of June
1977 on which date a joint appeal was made by Mr. Z. A.
Bhutto and the leaders of the Opposition for calling off the
strike during the continuance of the talks. As a result of this
joint appeal, the protest movement was temporarily called
off. The direction issued by the Federal Government under
Article 245 of the Constitution was also withdrawn, and the
troops were gradually pulled out from the riot torn areas.

The talks continued until about the 15th or 16th of June

1977, when it was announced that an accord had been
reached between the parties, and that the same would now
be reduced into writing. The Prime Minister then left for a
short tour of some friendly countries, but during his absence
the task of drafting the accord could not make much
progress. Fresh efforts were made to break the dead-lock,
and a night long session between the two negotiating teams
was held on the grid of July 1977, resulting in an announce-
ment on the morning of the 3rd of July 1977 that full accord
had been reached and the formal agreement would soon be
signed by both the parties after it had been formally ratified
by the General Council of the Pakistan National Alliance.
Unfortunately, differences again arose, and at a press
conference convened by the Prime Minister late on the 4th
of July 1977 it was announced that fresh talks will be held
between Mr. Abdul Hafeez Pirzada of the Pakistan People's
Party and Professor Ghafoor Ahmed of the Pakistan National
Alliance to iron out these differences. The Prime Minister,
however, announced that his party would also raise ten or
twelve other issues as was being done by the Pakistan
National Alliance. It appears that the take-over by the
military authorities was carried out in the early hours of the
5th of July 1977 sooty after this announcement by the Prime
Minister.
The allegation that there was massive rigging of the
elections under the directions of Mr. Z. A. Bhutto has been
strenuously denied by Mr. Z. A. Bhutto himself and by Mr.
Yahya Bakhtiar on behalf of the Pakistan People's Party.
However, the important point for our present purpose is not
whether in fact there was massive rigging of the elections or
not, but that the people all over Pakistan protested that
there had been massive rigging by the Government
functionaries. In addition, we have before us material in the
form of certain actions taken in this behalf by the
Government and the Chief Election Commissioner. In the
first place, there is the fact that the results of the elections
were not announced by the Chief Election Commissioner
until the 21st of March 1977, which was the last
date-permitted for this purpose by clause (2) of Article 224
of the Constitution and he did so only when he had been
given summary powers by the Federal Government, by
means of Amending Ordinance XV of 1977, to examine the
validity of individual elections and to set them aside by
reason of any illegality or corrupt practice which may have
vitiated the result. He took up twenty-six cases for
investigation under these summary powers and set aside the
results of six constituencies, unseating important members
belonging to the Pakistan People's Party. Show-cause
notices had been issued by the Chief Election Commissioner
to at least two other important members of the party,
namely, the former Attorney-General, Mr. Yahya Bakhtiar,
and the Federal Law Minister, Malik Mohammad Akhtar,
when the summary powers previously conferred on the
Chief Election Commissioner were suddenly withdrawn by
the President on the 12th of May 1977 under clause (2)(6) of
Article 89 of the Constitution, Chief Election Commissioner,
and that the withdrawal of the summary powers had
nothing to do with the pendency of his case. That may or
may not be so, as the relevant fact for our present purpose
is that the powers in question were suddenly withdrawn,
thus giving the impression that the withdrawal was intended
to protect certain important members of the Pakistan
People's Party from being unseated. In the present
proceedings we have merely taken judicial notice the events
which generated discontent against Mr. Z. A. Bhutto's
Government, and are not called upon to record a judicial
finding as to whether the dissatisfaction was in fact justified
or not. A further fact to be noticed in this behalf is that the
Chief Election Commissioner had called for the files of
eighty-five other constituencies when these powers were
withdrawn.

Four orders passed by the Election Commission in the

exercise of the summary powers mentioned above have
been placed on the record. They make very instructive
reading. It may be stated that at the relevant time the
Election Commission was headed by a retiree: Judge of the
Supreme Court of Pakistan, Mr. Justice Sajjad Ahmed Jan as
the Chief Election Commissioner, and had two members
drawn from the serving Judges of the High Courts, namely,
Mr. Justice Sa'ad Saood Jan of the Lahore High Court and
Mr. Justice Abdul Hafeez Memon from the Sind High Court.

The first case deals with the election of a former Federal

Minister, Mr. Hafeezullah Cheema, to the National Assembly
from Constituency No. NA-57, Sargodha-5. On page 176 of
the reported judgment (P L D 1977 Jour. 164) the Election
Commission has recorded the following conclusions:

"We do not think it necessary to make any comments on the

patent facts disclosed from our scrutiny of the record and
the evidence mentioned above, as they speak for
themselves. The only possible conclusion which can be
drawn from them is that the polls were rigged in the polling
stations mentioned above and the election was thus
reduced to a farce. The several telegraphic complaints sent
by Mr. Zafarullah Khan on the day of the poll have been
proved to be substantially correct. The events clearly reveal
a pre-planned design to subvert the electoral process and to
secure a victory for Mr. Hafeezullah Cheema at all costs by
resort to the foulest possible means. As stated above, no
polling took place at some of the polling stations and yet the
results were manipulated for these polling stations giving to
Mr. Cheema a land-slide victory. 1t is painful to observe that
Mr. Cheema in his position as the Federal Minister of the
Central Government should have resorted to such foul
methods, throwing to the winds all norms of decency and
democratic behaviour in his blind desire to win the seat for
himself anyhow, totally unmindful of the consequences. 'He
and his henchmen indulged in violence and intimidation
with reckless bravado to achieve their nefarious designs."

In the second case, reported as P L D 1977 Jour. 183 relating

to the election of Mr. Amir Abdullah Khan, a nominee of the
Pakistan People's Party from National Assembly
Constituency No. NA-61, Mianwali-II, the Election
Commission has observed, on page 187 of the Report, that :-
"The events as disclosed by the evidence mentioned above,
speak for themselves. The election in this constituency was a
mockery and a sham. The sanctity of the ballot paper was
destroyed by the foulest methods, regardless of
consequences. In the circumstances, we have no hesitation
in declaring, as already stated in our short order dated the
20th of April, 1977, that the polls in this constituency are
vitiated by grave illegalities and are, therefore, null and void
and that fresh election will be held in this constituency as
required by section 108 of the Representation of the People
Act, 1976."

In the third case, reported as P L D 1977 Jour. 190 relating to

the election of Mr. Ghulam Nabi Chaudhry, a nominee of the
Pakistan People's Party from Constituency No. NA-76,
Lyallpur-IX, the Election Commission observed on p. 197 of
the Report:-

"The resume of the evidence led in the case and the

description of some of the incidents that took place during
the polls in this Constituency leave no room for doubt that
the polls are tainted by grave illegalities and violations of
law. The respondent resorted to violence and even abducted
a Presiding Officer and subverted the electoral processes to
make sure about his victory at all costs."

In the last case brought to our notice, reported as P L D 1977

Jour. 198, relating to the election of Sardar Ahmed Ali, a
nominee of the People's party, from National Assembly
Constituency No. NA-89, Kasur-I, the Election Commission
came to the conclusion on p. 202 of the Report that:-

"The whole evidence as discussed above leaves no room fur

doubt that a fraud has been played on the electorate by
resort to despicable acts like stealing the ballot boxes and
the ballot papers, shoving in bogus votes in the ballot boxes
and later bringing them into the polling stations for being
included in the count. The only result that follows is that this
poll which was farcical, has to be declared as null and void."

It is true that the specific judgments referred to by the

learned Attorney-General relate only to four cases, but the
conclusions recorded by the Election Commission in each of
them 'are significant, as revealing a certain pattern of
interference by the Government functionaries with the
sanctity of the ballot.. Enormity of this interference appears
to be further highlighted by at least three public statements
made by the Chief Election Commissioner on the 17th of
March 1977, 23rd of May 1977, and the 5th of June 1977
respectively.

The firs statement appeared in the daily newspaper

'Nawa-i-Waqt' (Annexure F. 12 on p. 150 of the respondent's
rejoinder filed on 26-10-77) reporting the proceedings of a
Press Conference held by the Chief Election Commissioner in
his office, in which, after reciting the various irregularities
noticed by him, he expressed the view that there were
allegations of rigging against almost all the ministers of the
Government, and that, if possible, fresh elections should be
held to all the 200 seats of the National Assembly, and even
the elections to the Provincial Assemblies should be
reviewed, so as to inspire confidence in the purity of the
electoral process.

The second statement referred to by Mr. Sharifuddin Pirzada

was reported in a weekly Urdu magazine 'Chatan', published
in Lahore (Annexure F. 13 on p. 152 of the aforesaid
rejoinder), bearing the date-line 23rd of May 1977. It refers
to an interview given by the Chief Election Commissioner to
the Voice of America reiterating his view that there had
been massive rigging in the elections to the National
Assembly held on the 7th of March 1977, and that he had
advised Prime Minister Bhutto to held fresh elections,
According to the correspondent of the Voice of America
stationed in Islamabad, the Chief Election Commissioner had
re-affirmed his earlier statement that the results of at least
100 constituencies of the National Assembly were not above
suspicion. .

The third statement dated the 5th of June 1977 appeared in

a newspaper called the daily `Millat' published in Karachi, in
the Gujerati language. An English translation of this news
item is to be found in Annexure R/ I to the first written
statement filed in this Court by Mr. A. K. Brohi on behalf of
the Federation of Pakistan. It bears the caption "Savad
shocked by election rigging. Suggests new election instead
of inquiry." The body of the news item states that:---

"In view of the grave irregularities that have come. to the

knowledge of the Election Commission during the inquiry
held into election to 24 seats, the Commission has decided
to hold inquiry into another 80 seats.

Records of the elections of these 80 seats have been sealed

under the orders of the Commission. The Chief Election
Commissioner, Mr. Justice Sajjad Ahmed Jan is shocked to
learn of the grave irregularities committed in regard to more
than 50 % of the seats during elections. In view of these
irregularities on such a large scale Mr. Justice Sajjad Ahmed
Jan feels that it will be better to hold elections afresh."

Mr. Brohi has also drawn our attention to para. 48 of his

written statement to the effect that the then Punjab
Government had sanctioned, on 15-5-77. the distribution of
fire-arms licences on a vast scale to its party members. This
allegation has not been denied by Mr. Bhutto and Mr. Abdul
Hafeez Piriada, either orally or in their rejoinder statements.

Mr. A. K. Brohi has also brought on the record certain other

material suggestive of the fact that such large scale rigging
had 'in fact been planned and directed at the highest level,
namely, that of the Prime Minister himself, but I consider
that it is not necessary to go into those details, the relevant
fact in the present proceedings being that there were
widespread allegations of massive rigging in the elections in
favour of candidates of the Pakistan People's Party, and that
these allegations find prima facie support from the orders
and statements made by the then Chief Election
Commissioner and the members of the Election Commission
as mentioned above. These circumstances explain the
genesis of the protest movement launched by the
Opposition against Mr. Z. A. Bhutto and his Government.

As to the magnitude of the movement, certain salient facts

have already been stated, namely, that Mr. Bhutto was
obliged to call in the Armed Forces in aid of the civil power
in a large number of cities and towns of Pakistan owing to
the fact that the civil authorities were unable to cope with
the disturbances.

As regards the casualties suffered and the damage caused to

public and private property, Mr. Sharifuddin Pirzada, the
learned Attorney-General, has invited us to take judicial
notice of the submissions made before the Supreme Court
by the former Attorney-General, Mr. Yahya Bakhtiar. who
now appears for the petitioner Begum Nusrat Bhutto, on the
6th of June 1977. While arguing an appeal on behalf of the
Federal Government against the decision of the Lahore High
Court declaring as unlawful the imposition of local Martial
Law by the Armed Forces of Pakistan in pursuance of a
direction issued by the Federal Government under Article
245 of the Constitution, Mr. Yahya Bakhtiar gave certain
facts and figures in justification of the action taken by the
Federal Government. He stated that during the 2) months of
agitation 4653 processions were taken out by the public,
including 248 processions by women, 92 by the members of
the legal profession. 18 by Ulema or religious scholars, 248
by students and 57 by boys and children. According to Mr.
Yahya Bakhtiar, these figures related to the period from
March 14 to May 17, 1977.
Mr. Yahya Bakbtiar further informed the Court on that
occasion that 241 civilians, belonging to both the political
parties, were killed, and 1195 were injured, whereas nine
members of the security forces were killed and 531 of them
were injured. There were 162 acts of sabotage and arson,
besides large scale destruction of property as follows:-

Installations 18
Shops 74
Banks 58
Vehicles on the road 1622 (They did not include the
vehicles burnt in the Republic
Karachi)
Hotels 7
Cinemas 11
Offices (public & private) 56
Railways, whether bogies were
burnt or otherwise damaged 27

These losses and casualties, which according to Mr. Yahya

dakhtiar were unprecedented, appear to me to lend full
support to the submission made by Mr. Sharifuddin Pirzada
that the protest movement launched by the Opposition
against the alleged massive rigging of the elections
organised by Mr. Z. A. Bhutto's Government had assumed
very serious proportions indeed, comparable almost to the
well-known agitation movements launched in the undivided
India, like the Khilafat Movement, the Quit India Movement
of 1942, etc.
Certain other aspects of the prevailing political and law and
order situation may also be noticed. It has already bee"
stated that as a result of the joint appeal made by the Prime
Minister, Mr. Z. A. Bhutto and the top leadership of the
Pakistan National Alliance on the 3rd of June 1977, the
agitation was called off for the time being and the troops
were withdrawn from their duties in aid of civil power. Mr.
Yahya Bakhtiar submits that, in these circumstances, it
would be wrong to say that the law and order situation in
the country continued to be serious, or that there was any
real danger of widespread disturbances or civil war as
alleged by the respondent.

In controverting these submissions, Mr. Sharifuddin Pirzada

has drawn our attention to the minutes of certain meetings
of the Law and Order Committee, headed by Mr. Yahya
Bakhtiar himself, in his capacity as the then
Attorney-General The membership of this Committee
included several Secretaries to the Federal Government,
Heads of Civil Armed Forces, Heads of Intelligence Services,
Chief of General Staff of the Pakistan Army, Chief Secretaries
of all the four Provincial Governments and their Inspectors--
General of Police. It was thus a very high-powered
Committee.

Mr. Sharifuddin Pirzada first refers to the minutes of the

meeting of this Committee held on the 11 the of June 1977
(Annexure F. 33 of respondent's rejoinder), under the
chairmanship of Mr. Yahya Bakhtiar. As the: agitation had
been temporarily called off on the 3rd of June 197,7 on the
commencement of the dialogue between the Government
and the Pakistan National Alliance, the Committee noted
that the general law and order situation in the country was
reported to be satisfactory, but there was information that
certain sections were intending to continue demonstrations
of "belicosity" through processions in Lahore, Karachi and
Hyderabad in case the talks fail. Paragraph 4 of the minutes
of this meeting states that "in reviewing the situation in the
respective Provinces, Chief Secretaries and Inspectors-
General of Police stated that, although law and order
situation was near normal everywhere, ail provinces were
tense and could break out into serious trouble, worse in
intensity than hithertofore, should the Government . . . . P.
N. A. talks fail. The agitation this time may take the form of
sabotage, arson and assasinations in addition to large scale
demonstrations in the streets."

"It was generally agreed that the prospects of maintaining

law and order in the eventuality of a break-down of talks
were bleak."

In the minutes of the meeting of the Committee held on the

27th of June 1977 (Annexure F. 54 on p. 244), it is stated
that:-

"The political situation in the country was discussed in

totality. Main features of the discussions are briefly stated
as under:-

(ii) Exposition of political situation in the country by various

officers attending the meeting revealed that the P. N. A. was
gradually building up a tempo of agitation in anticipation of
a break-down of talks.

(iii) Although different leaders of P. N. A. blew hot and cold,

there remained cohesion and unity in their ranks, which
quality was lacking in the P. P. F.

(iv) In Punjab the various forces of law and order including

the Police might, at best, be able to buy time for the
Government for a month or so but they would not be able to
beat back a full-blooded agitation by P. N. A.

(v) The P. N. A. agitation would, this time, also take the form
of sabotage and attempts on the lives of certain political
leaders and Government officials.

(ix) In Sind the P. P. P. was in disarray. Clashes in Karachi and

Hyderabad were inevitable whether there is a
Government-P. N. A. accord or not."

Again the minutes of the meeting of the committee held on

the 2nd of July 1977 (Annexure F. 55 on p. 248) recite that:-

"In giving a run-down of the law and order situation in the

country, the D. I. B. expressed apprehension of large scale
clashes between supporters of P. P. P. and P. N. A. during
the forthcoming electioneering campaign. Mr. G. M. Khar's
return to the P. P. P. fold and his open challenge to the P. N.
A. is a grave provocation to the blooded veterans of the
recent country-wide agitation. The path of clashes is,
therefore, fraught with dangers, the least of these being
demoralisation of rank and file of the P. P. P. should there be
a single reverse on the street. In fact the latest trends of P.
N. A. workers show that the desparate ones among them
may no longer be amenable to party discipline.

Rumours are being spread that Mr. Khar went to Peshawar

to acquire arms in large quantity for P. P. P. workers."

It needs to be mentioned that Mr. G. M. Khar, referred to in

the minutes, noticed in the preceding paragraph, was at one
time a very prominent member of the Pakistan People's
Party, and mentioned as a possible successor by Mr. Z. A.
Bhutto. He was appointed Governor of the Punjab and later
Chief Minister of the Punjab, before falling out with Mr.
Bhutto. After various vicissitudes in his fortune, he returned
to the fold of the Pakistan People's Party, and was appointed
by Mr. Bhutto as a Special Assistant to the Prime Minister as
late as the 16th of June 1977. Immediately on appointment
in this capacity, he started making belligerent speeches
against the Opposition, which were given great prominence
by Radio, Television and the official press. The reference in
the minutes of the meeting of the Law and Order Committee
is to these speeches made by Mr. G. M. Khar from the safety
of the Prime Minister's Secretariat.

On the basis of the material thus brought to the notice of

the Court by Messrs A. K. Brohi and Sharifuddin Pirzada,
consisting mostly of official reports and decisions as well as
contemporary reports in the official newspapers, I think the
Court is entitled to take judicial notice of the following facts
:-
(1) That from the evening of the 7th of March 1977 there
were widespread allegations of massive official interference
with the sanctity of the ballot in favour of candidates of the
Pakistan People's Party ;

(2) That these allegations, amounting almost to widespread

belief among the people, generated a national wave of
resentment and gave birth to a protest agitation which soon
spread from Karachi to Khyber and assumed very serious
proportions ;

(3) That the disturbances resulting from this movement

became beyond the control of the civil armed forces ;

(4) That the disturbances resulted in heavy loss of life and

property throughout the country ; ,

(5) That even the calling out of the troops under Article 245
of the Constitution by the Federal Government and the
consequent imposition of local Martial Law in several
important cities of Pakistan, and the calling out of troops by
the local authorities under the provisions of the Code of
Criminal Procedure in smaller cities and towns did not have
the desired effect, and the agitation continued unabated ;

(6) That the allegations of rigging and official interference

with elections in favour of candidates of the ruling party
were found to be established by judicial decisions in at least
four cases, which displayed a general. pattern of official
interference ;
(7) That public statements made by the then Chief Election
Commissioner confirmed the widespread allegations made
by the Opposition regarding official interference with the
elections, and endorsed the demand for fresh elections ;

(8) That in the circumstances, Mr. Z. A. Bhutto felt

compelled to offer himself to a referendum under the
Seventh Amendment to the Constitution, but the offer did
not have any impact at all on the course of the agitation,
and the demand for his resignation and for fresh elections
continued unabated with .the result that the Referendum
Plan, had to be dropped ;

(9) That in spite of Mr. Bhutto's dialogue with the leaders of

the Pakistan National Alliance and the temporary suspension
of the Movement against the Government, officials charged
with maintaining law and order continued to be
apprehensive that in the event of the failure of the talks
there would be a terrible explosion beyond the control of
the civilian authorities ;

(10) That although the talks between Mr. Bhutto and the
Pakistan National Alliance leadership had commenced on
the 3rd of June 1977, on the basis of his offer for holding
fresh elections to the National and Provincial Assemblies,
yet they had dragged on for various reasons, and as late as
the 4th of July 1977, the Pakistan National Alliance
leadership was insisting that nine or ten points remained to
be resolved and Mr. Bhutto ,vas also saying that his side
would similarly put forward another ten points if the
General Council o P. N. A. would not ratify the accord as
already reached on the morning of the 3rd of July 1977.

(11) That during the crucial days of the dead-lock between

Mr. Z. A. Bhutto and the Pakistan National Alliance
leadership the Punjab Government sanctioned the
distribution of fire-arms licences on a vast scale, to its party
members, and provocative statements were deliberately
made by the Prime Minister's Special Assistant, Mr. G. M.
Khar, who had patched up his differences with the Prime
Minister and secured this appointment as late as the 16th of
June, 1977 ; and

(12) That as a result of the agitation all normal economic,

social an educational activities in the country stood seriously
disrupted, wit incalculable damage to the nation and the
country.

In the light of these facts, it becomes clear, therefore, that

from the 7th of March 1977 onward, Mr. Z. A. Bhutto's
constitutional and moral authority to rule the country as
Prime Minister stood seriously eroded. His Government was
finding it more and more difficult to maintain law and order
to run the orderly ordinary administration of the country, to
keep open educational institutions and to ensure normal
economic activity. These conclusions find support from the
declaration of loyalty to Mr. Z. A. Bhutto' Government made
by the Chairman of the Joint Chiefs of Staff and the Chiefs of
Staff of the Pakistan Army, Pakistan Navy and Pakistan Air
Force on the 28th of April 1977. There has been some
controversy between the parties as to' whether Mr. Bhutto
had requested the Service Chiefs for such a declaration, or it
was voluntarily made by them on their own initiative, but
the fact remains that the situation had deteriorated to such
an extent that either Mr. Bhutto or the Service Chiefs
themselves felt that a declaration of loyalty to Mr. Bhutto's
Government was needed at that critical juncture so as to
boost up his authority and to help in the restoration of law
and order and a return to normal conditions. 1t is again a
fact that even this declaration did no have any visible impact
on the momentum of the agitation launched by the
Opposition which continued unabated.

The Constitutional authority of not only the Prime Minister

but also of the other Federal Ministers, as well as of the
Provincial Governments was being repudiated on a large
scale throughout the country. The representative character
of the National and the Provincial Assemblies was also not
being accepted by the people at large. There was thus a
serious political crisis in the country leading to a break-down
of the constitutional machinery in so far as the executive
and the legislative organs of the State were concerned. A
situation had, therefore, arisen for which the Constitution
provided no solution. It was in these circumstances that the
Armed Forces of Pakistan, headed by the Chief of Staff of
the Pakistan Army, General Mohammad Ziaul Haq
intervened to save the country from further chaos and
bloodshed, to safeguard its integrity and .sovereignty, and
to separate the warring factions which had brought the
country to the brink of disaster. It was undoubtedly an
extra-constitutional step, but obviously dictated by the
highest considerations of State necessity and welfare of the
people. It was precisely for this reason that the declaration
of Martial Law on the morning of the 5th of July 1977 was
spontaneously welcomed by almost all sections of the
population which heaved a sigh of relief after having
suffered extreme hardships during the unprecedented
disturbances spread over a period of nearly four months.

This seems to me to be the proper place for mentioning

some of the salient points of the speech made by General
Mohammad Ziaul Haq on the evening of the 5th of July 1977
to explain the reasons for the action he had taken to
overthrow the Government of Mr. Z. A. Bhutto and to
dissolve the Federal and Provincial Legislatures. Addressing
his countrymen, the General said :-

"The Army take-over is never a pleasant act because the

Armed Forces of Pakistan genuinely want that the
administration of the country should remain in the hands of
the representatives of the people who are its real masters.
The people exercise this right through their elected
representatives who are chosen in every democratic country
through periodic elections.

The elections were held in our beloved homeland on March

7 last. The election results, however, were rejected by one
of the contending parties, namely, the Pakistan National
Alliance. They alleged that the elections had been rigged on
a large scale and demanded fresh elections. To press their
demand for re-elections, they launched a movement which
assumed such dimensions that people even started saying
that democracy was not workable in Pakistan. But, I
genuinely feel that the survival of this country lies in
democracy and democracy alone. It is mainly due to this
belief that the Armed Forces resisted the temptation to take
over during the recent provocative circumstances in spite of
diverse massive political pressures. The Armed Forces have
always desired and tried for the political solution to political
problems. That is why the Armed Forces stressed on the
then Government that they should reach a compromise with
their political rivals without any loss of time. The
Government needed time to hold these talks. The Armed
Forces bought them this valuable period of time by
maintaining law and order in the country. The Armed Forces
were subjected to criticism from certain quarters for their
role in aid of the civil administration, but we tolerated this
criticism acid ridicules in the hope that it was a passing
phase. We hoped that when this climate of agitational
frenzy comes to an end, the nation would be able to
appreciate the correct and constitutional role of the Armed
Forces and all fears would be allayed.

I have just given you a very broad-outline picture of the

situation obtaining in the country. It must be quite clear to
you now that when the political leaders failed to steer the
country out of a crisis, it is an inexcusable sin for the Armed
Forces to sit as silent spectators. It is primarily, for this
reason, that the Army, perforce had to intervene to save the
country.

I would like to point out here that I saw no prospects of a

compromise between the People's Party and the P. N. A.
because of their mutual distrust and lack of faith. It was
feared that the failure of the P. N. A. and P. P. P. to reach a
compromise would throw the country into chaos and the
country would thus be plunged into a more serious crisis.
This risk could not be taken in view of the larger interests of
the country. The Army had, therefore, to act as a result of
which the Government of Mr. Bhutto hoc ceased to exist ;
martial law has been imposed throughout the country ; the
National and Provincial Assemblies have been dissolved and
the Provincial Governors and Ministers have been
removed."

It will be 'seen that the explanation given by General

Mohammad Ziaul Haq for the Army's intervention is a true
reflection of the situation which had been developing over
the past four months as a result of the Pakistan National
Alliance agitation and repudiation of Mr. Bhutto's
constitutional and moral authority as Prime Minister of
Pakistan. The statement correct brings out the necessity for
the imposition of Martial Law. It is also clear that this sincere
and unambiguous declaration of his objectives by the Chief
Martial Law Administrator was a major factor in persuading
the people of Pakistan to .willingly accept the new
dispensation as an interim arrangement to bridge the gap
between .the break-down of .the previous administration
and the induction of the new elected Government under the
terms of the 1973 Constitution. The new arrangement,
therefore, acquired its effectiveness owing to its moral
content and promise of restoration of democratic
institutions. I may add here that the willingness of the
Judges of the superior Courts to take the new oath after the
proclamation of Martial Law was also founded upon the
same considerations.

It is strenuously contended by Mr. Yahya Bakhtiar that the

accord between the Government and the Pakistan National
Alliance was delayed by certain actions and attitudes of the
Chief of the Army Staff' as he insisted that the demands of
the Pakistan National Alliance regarding the release of the
accused persons facing trial before the Hyderabad Special
Court (namely, Messrs Wali Khan and others) and regarding
the withdrawal of the Army from Baluchistan should not be
accepted by the Government at any cost. In support of this
submission he refers us to certain averments made by Mr. Z.
A. Bhutto in his written statement and rejoinder. Mr. Yahya
Bakhtiar also submits that in spite of these hurdles created
.by the respondent, accord had in fact been reached on the
morning of the 3rd of July 1977, and a formal accord would
have been signed if the Army had not intervened on the
night between the 4th and the 5th of July 1977.

I have already stated that in the present proceedings it is not

our function to examine individual incidents or allegations,
and for this very reason I have not taken into account the
large number of allegations appearing in the written
statement filed by Mr. A. K. Brohi regarding the abuse of
power by Mr. Z. A. Bhutto or misuse of official authority and
funds, as they are not directly germane to the circumstances
culminating in the imposition of Martial Law. From the
objective narration of events as they were happening from
the 7th of March 1977 onwards, one is left in no doubt that
the constitutional and moral authority of the National
Assembly which had come into being as a result of the
elections held on the 7th of March 1977, as well as of the
Federal and Provincial Governments formed thereafter as a
result of mandates given to them by the National and the
Provincial Assemblies had been continuously and forcefully
repudiated throughout the country over a prolonged period
of nearly four months, thus resulting in 1. serious disruption
in all spheres of national life. It can only be a matter of
conjecture at this stage, whether an accord between the
Government and the Pakistan National Alliance would have
finally emerged if the Army had not intervened. From the
material placed on the record, in the shape of deliberations
of official committees, it has become abundantly clear that
the situation was surcharged with possibilities of further
violence, confusion and chaos.

Having found that the extra-Constitutional step taken by the

Armed Forces of Pakistan was justified by requirements of
State necessity and welfare of the people it is now necessary
to examine its legal consequences.

The learned Attorney-General contends that the doctrine of

necessity is fully applicable to the facts obtaining in the
present case, and would validate that which was not
sanctioned by the Constitution, as the country and the
people could not be sacrificed at the alter of the letter of the
Constitution, when its spirit had already been killed owing to
the massive rigging of the elections indulged in by Mr. Z. A.
Bhutto and the Government functionaries acting under his
order ; that the doctrine of necessity is fully recognised by
the Holy Qu'ran as well as by the juridical systems of
Western countries; that it has also been accepted in several
precedent cases by the Supreme Court of Pakistan; and that
the authorities inducted into power on account of State
necessity and the principle of salus populi suprema lex are
fully entitled to administer the country and exercise
supra-Constitutional powers for this purpose.

Mr. A. K. Brohi, appearing for the Federation of Pakistan has,

however, adopted a somewhat different .position, by
contending that the question of the application of the
doctrine of necessity does not at all arise to this case, as
with the suppression or destruction of the old- Legal Order,
even this doctrine or concept has disappeared, and can no
longer be regarded as part of the juridical system now
obtaining in Pakistan. He submits that the doctrine of
necessity can apply only if breaches take place within a given
legal system like a man who has suffered a fracture is put in
plaster or is given other clinical treatment to repair the
damage, but no such repair is possible if he has already met
his death. According to him all the cases cited at the Bar in
support of the application of this doctrine presented a
situation in which the Legal Order was intact but had
suffered partial damage, a situation which was
distinguishable from the present case where whole of the
country was placed under Martial Law and the Constitution
had been suspended with a view to restoring it to life after
the holding of elections. Finally, Mr. Brohi contends that
even if the doctrine were to apply, only the initial act of
taking-over by. the Army could be tested, but all subsequent
actions could not be judged in the light of this doctrine, as
the Judges would have no objective tests to apply, and that
in any case the Courts were now governed by the limitations
placed upon them by the Laws (Continuance in Force) Order,
1977.

Mr. Yahya Bakhtiar, learned counsel appearing for the

petitioner, submits that even if the Court were to come to
the conclusion that the intervention by the Armed Forces
had become necessary in the situation then prevailing the
action would still remain in the nature of usurpation of
power as held by the Supreme Court in Asma Jillani's case;
and in such a situation only certain acts of the usurper could
be condoned which fell directly within the ambit of the 1973
Constitution. He further submits that the Chief Martial Law
Administrator being a usurper must be directed by the Court
to hold elections as early as possible according to his original
intention, and should not be permitted to prolong his rule
indefinitely on the ground that he wants to enforce the
principle of accountability against political leaders. Mr.
Yahya Bakhtiar submits that even now it should be possible
for the respondent to hold general elections before the end
of the current year.

It seems to me that the view expressed by Mr. A. K. Brohi is

not at all tenable. The question of considering the
application of the doctrine o necessity has obviously arisen
in this case as the Court, is not persuaded that the military
intervention provides its own legality simply for the reason
that it has been accepted by the people of Pakistan, and has
become effective in that sense. Even otherwise, if it is
assumed that the old Constitution has been completely
suppressed or destroyed, it does not follow that all the
juridical concepts and notions of morality arid justice have
also been destroyed, simply for the reason that the new
Legal Order does not mention anything about them: On the
contrary, I find that the Laws (Continuance in Force) Order
makes it clear that, subject to certain limitations, Pakistan is
to be governed as nearly as may be in accordance with the
1973 Constitution, and all laws for the time being in force
shall continue. These provisions clearly indicate that there is
no intention to destroy iii e legal continuity of the country,
as distinguished strictly from the Constitutional continuity.

At this stage, it will be convenient to examine Mr. Yahya

Bakhtiar's contention that the dictum in Asma Jillaiii's case
as to usurpation of power fully applies even if the imposition
of Martial Law is assumed to be justified by State necessity,
and therefore, the utmost that the Court can do is to
condone certain actions of the Martial Law Authorities, and
no question of validation arises.

Having dealt with the untenability of Kelsen's theory and the

decision of the Supreme Court in Dosso's case, Hamoodur
Rahman, C. J. has observed on page 183 of the Report, that
"unfettered by this decision I propose now to judge the
validity of the events that took place on and from the 24th
of March 1969", on which date Field Marshal Muhammad
Ayub Khan, the then President of Pakistan, wrote, a letter to
the Commander-in-Chief of Pakistan Army expressing his
profound regret for coming to the conclusion that "All civil
administration and constitutional authority in the country
has become ineffective," and that "it is beyond the capacity
of the Civil Government to deal with the present political
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 present the only effective and legal
instrument to take over full control of the affairs of the
country." He accordingly called upon the
Commander-in-Chief to perform his legal and constitutional
responsibility to defend the country not only against
external aggression but also to save it from internal disorder
and chaos.

The learned Chief Justice has commented on this letter in

the following words:-

"There was nothing either in this letter or in his broadcast

(by Field Marshal Muhammad Ayub Khan 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."

His Lordship has further remarked that "it is clear that under
the Constitution of 1962, Field Marshal Muhammad Ayub
Khan had no power to hand over power to any body. Under
Article 12 of that 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." After examining the nature of
Martial Law, the learned Chief Justice further observed
that--

"'From this examination of the authorities I am driven to the

conclusion that the 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 was not even a revolution, or a military coup d'elat in any

sense .of those terms . . . . . . 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."

Having thus held that the seizure of power by General Agha

Muhammad Yahya Khan was illegal and amounted to an act
of usurpation, the learned Chief Justice observed that:-

"Recourse has to be taken to the doctrine of necessity

where the ignoring of it would result in disasterous
consequences to the body politic and upset the social order
itself, but I respectfully beg to disagree with the view that
this is a doctrine for Validating illegal acts of the usurper. In
my humble opinion, this doctrine could be invoked in aid
only if the Curt bas come to the conclusion that the acts of
the usurper were illegal and illegitimate. It is only then that
the question arises as to how many of his acts, legislative or
otherwise, should be condoned or maintained,
notwithstanding their illegality in the wider public interest. I
would call this a principle of condonation and not
legitimization "

The other learned Judges agreed with this line of reasoning,

and have apparently endorsed the tour principles
enunciated by the learned Chief Justice on page 207 of the
Report for condoning certain categories of acts of the
usurper.

Now, it will be seen that in Asma Jilani's case the Court has
taken the view that the abrogation of .the Constitution and
assumption of all governmental power by the Army .
Commander-in-Chief was illegal because it was not justified
by the circumstances in which he was called upon by the
then President, Field Marshal Muhammad Ayub Khan to
perform his legal and constitutional duty of restoring law
and order. The Court took note of the fact that the
Constitution itself contained a provision for the Speaker of
the National Assembly to assume the office of Acting
President, in case the sitting President wanted to resign or
step aside, but this constitutional provision was frustrated
by General Yahya Khan when he proclaimed himself to be
the President of the country as well as the Chief Martial Law
Administrator. and abrogated the 1962 Constitution without
there being any justification for the same. It is clear,
therefore, that the conclusion that the acts of General
Muhammad Yahya Khan amounted to a usurpation of
powers flows directly from the circumstances obtaining in
that case, and is not t be regarded as a general proposition
of law to the effect that whenever power is assumed in an
extra-Constitutional manner by an authority not mentioned
in the Constitution, then it must amount to usurpation in all
events. It would obviously 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 or not.

It is also clear. from the various judgments delivered in Asma

Jillani's case that the question of condonation arose only on
the view that the Army Commander-in- Chief was a usurper.
The learned Attorney General is, therefore, right in saying
that in a case where extra-constitutional intervention is
justified by necessity, then different considerations arise
from those which would be relevant for judging the acts of a
usurper.

'It has also to be noticed that the concept of condonation, as

expostulated in Asma Jillani's case, has relevance not only to
the acts of a usurper, but also to a situation which arises
when power has fallen from the hands of the usurper, and
the Court is confronted with protecting the rights and
obligations which may have accrued under the acts of the
usurper, during the time he was in power. However, in the
case of an authority, whose extra-Constitutional assumption
of power is held valid by the Court on the doctrine of o
necessity, particularly when the authority concerned is still
welding State power, the concept of condonation will only
have a negative effect and would not offer any solution for
the continued administration of the country in accordance
with the requirements of State necessity and welfare of the
people. It follows, therefore, that once the assumption of
power is. held to be valid, then the legality of the actions
taken by such an authority would have to be judged in the
light of the principles pertaining to the law of necessity.

As already stated. the learned Attorney General submits that

the doctrine of necessity is recognised by Islam. He has in
this connection, in the first place, drawn our attention to the
injunctions contained in Sura Al-Baqar and Sura Al-Nahal,
which are in almost identical terms and permit, if one is
.forced by necessity, without wilful disobedience, nor
transgressing due limits, that which is forbidden,
namely- dead meat and blood and the flesh of swine -and
any food over which the name of other than Allah has been
invoked. He also refers to certain observations appearing in
Islamic Jurisprudence and Rule of Necessity and need by Dr.
Muslehuddin, 1975 Edition, (pp. 60-63), Islamic Surveys by
Coulson (p. 144), and the Muslim Conduct of State by
Hamidullah (p. 331. These writings lend support to the
maxim that "Necessity makes prohibited things permissible."

Mr. Sharifudin Pirzada has next drawn our attention to

certain Articles in the Majelle in support of his proposition.
Article 17 enjoins that "Hardship causes the giving of facility
that is to say, difficulty becomes a cause of facility, and in
times of embarrassment it becomes necessary that latitude
should be shown." Article 21 says that "Necessities make
forbidden things canonically harmless". Article 22 lays down
that necessities are estimated according to their quantity,
and Article 26 embodies the maxim salus populi suprema let
by saying that "To repel a public damage a private damage
is preferred " He submits that although these maxims are
directly relevant to cases of private necessity but the
principle can certainly be extended to State necessity.

In support of his. contention that the doctrine or law of

necessity is recognised in most Western systems of
Jurisprudence, and has also been followed in Pakistan, the
learned Attorney-General has referred us to Rex v. Stretton
(1779) reported in Vol. 21, Howell's State Trials; Attorney -
General of Duchy of Lancaster v. Duke of Devenshire ((1884)
14 Q B D 273); the well-known case from Cyprus, The
Attorney-General of Republic v. Mustafa Ibrahim (1964 C L R
195); the well-known case from Nigeria reported as E. U.
Lakanmi and another v. Attorney-General, West Nigeria,
Reference by H. E. The Governor-General P L D 1955 F C 435
and of course observations appearing in the case of Asma
Jillani.

He also relies upon the dissenting judgment delivered by

Lord Pearce in the Rhodesian case, already referred to
earlier in another context, namely, ' Madirnbamuta v.
Lardner-Burke (1968) 3 All E R 561.

I find that in the Federal Court case, relied upon by the

learned Attorney-General, namely, Reference by H. E.
Governor-General; the implications of the law of necessity
were discussed at some length by Muhammad Munir, C. J.,
and accordingly it will be useful to refer to it in the first
instance.

After referring to several authorities. including some of

those now mentioned by Mr. Sharifuddin Pirzada, his
Lordship stated, particularly relying on the address of Lord
Mansfield in the proceedings against George Stretton and
others that "the principle clearly emerging from this address
of Lord Mansfield is that subject to the condition of
absoluteness, extremeness and imminence, an act which
would otherwise be illegal becomes legal if it is done bona
fide under the stress of necessity, the necessity being
referable to an intention to preserve the Constitution, the
State or the society and to prevent it from dissolution, and
affirms Chitty's statement that necessity knows no law, and
the maxim cited by Bracton that necessity makes lawful
which otherwise is not lawful." Having stated this principle,
the learned Chief Justice, with whom the majority of the
Judges agreed, proceeded to answer the questions referred
to the Court by the Governor-General, and suggested certain
arrangements for the setting up of a Constituent
Convention, which he preferred to call Constituent
Assembly, and for which there was otherwise no provision in
the Government of India Act, which then served as the
Constitution for Pakistan. The opinion recorded by the
Federal Court in this case provides a striking example of the
invocation of the law of necessity to validate certain extra--
Constitutional measures dictated by the considerations of
the welfare of the people and the avoidance of a legal
vacuum owing to an earlier judgment of the Federal Court
in Usif Patel v. Crown PLD 1955 F C 387. The measures in
question were validated and not sought to be condoned.

In the case from the Cyprus jurisdiction a more or less

similar situation bad arisen owing to the difficulty of the
Turkish members of the Cyprus Parliament participating for
the passing of a law regarding the functioning of the
Supreme Court itself. In a very elaborate judgment, after
surveying the concept of the doctrine or law of necessity as
obtaining in, different countries the Court came to the
conclusion that the Cyprus Constitution should be deemed
to include the doctrine of necessity in exceptional
circumstances which is an implied exception to particular
provisions of the Constitution, and this in order to ensure
the very existence of the State. It was further stated that the
following pre-requisites must be satisfied before this
doctrine can become applicable :-

(a) An imperative and. inevitable necessity or exceptional

circumstances;

(b) No other remedy to apply;

(c) The measure taken must be proportionate to the

necessity; and

(d) It must be of a temporary character limited to the

duration of the exceptional circumstances.

It was added that "A law thus enacted is subject to the

control of this Court to decide whether the aforesaid
pre-requisites are satisfied, that is, whether there exists
such a necessity and whether the measures taken were
necessary to meet it".

It seems to me that this summing up of the law of necessity

by one of the learned Judges of the Cyprus Supreme Court
embodies the true essence of the doctrine, and provides
useful practical guidelines for its application.

Reference may now be made to the case of F.. O. Lakanmi in

which the question of the validity of a Decree issued by the
Federal Military Government of Nigeria came up for
examination. Nigeria was being governed by -the Republican
Constitution of 1963, when a section of the Army rebelled in
different parts of the country on the 15th of January, 1966.
Two regional premiers were put to death and the Prime
Minister of the Federation and one of his Ministers were
captured and taken to an unknown destination; also some
senior members of the Army were killed. The Council of
Ministers met without the Prime Minister and decided to
hand over the administration of the country to the Armed
Forces before the situation got worsened. The Acting
President of Nigeria himself announced the handing over of
the administration of the country to the Armed Forces. This
announcement was followed by a speech by the General
Officer Commanding the Nigerian Army in which he declared
that he had accepted the invitation of the Acting President
to form the interim military Government, and had
suspended certain parts of the Constitution relating to the
office of President, the establishment of Parliament and of
the office of the Prime Minister, and certain offices relating
to the Regions.

The Supreme Court of Nigeria took the view that these

events did not amount to a revolution, and that the situation
was distinguishable from that obtaining in Dosso's ease in
Pakistan, where the President bad issued a proclamation
anulling the existing Constitution. It stated that the Federal
Military Government of Nigeria was not a revolutionary
Government, as it had made it clear before assuming power
that the Constitution of the country will remain in force
excepting certain sections which were being suspended.
They went on to say that "We have tried to ensure that the
country is governed by the Constitution and Decrees which,
from time to time, are enacted when the necessity arises
and are then supreme when they are in conflict with the
Constitution. It is clear that the Federal Military Government
decided to govern the country by means of a Constitution
and Decrees. The necessity must arise before a Decree is
passed ousting any portion of the Constitution. In effect, the
Constitution still remains the law of the country and all laws
are subject to the Constitution excepting so far as by
necessity the Constitution is amended by a Decree. This
does riot mean that the Constitution the country ceases to
have effect as a superior norm. From the facts of the
taking-over, as we have pointed out that the Federal Military
Government is an interim Government of necessity
concerned in the political cauldron of its inception as a
means of dealing with the situation which has arisen and its
main object is to protect lives and property and to maintain
law and order."

The learned Judges of the Supreme Court went on to

observe that "by recognising the fact that there is a doctrine
of necessity, we do not alter the law but apply it to facts as
they do exist." They then proceeded to examine the 'validity
of the impugned Decree by posing the question whether it
went beyond the requirements or demands of the necessity
of the case. They came to the conclusion that the Decree in
question was nothing short of a legislative judgment, an
exercise of judicial power and, therefore, ultra vires and
invalid under the Constitution which envisaged a clear
separation of judicial and legislative functions of the State.

This judgment supports the learned Attorney-General on the

point that necessity validates actions which would
.otherwise not be lawful but it also spells out the principle
that all actions taken in pursuance of necessity could be
tested on that ground by way of judicial review. The, learned
Attorney-General submits that the second part of the
judgment was not accepted by the Federal Military
Government of Nigeria, which proceeded to pass certain
other Decrees to nullify the effect of the verdict of the
Supreme Court. In support of this submission, he drew our
attention to an article entitled "The Search for a Grundnorm
in Nigeria---The Lakanmi's case", written by a Nigerian Jurist,
named Abiola Oji. The author of the Article is critical of the
judgment of the Supreme Court as he would have preferred
the Court to apply Kelsen's theory regarding the legality of a
successful revolution. On the question of judicial review a
very pertinent observation appearing in this Article is that
the Supreme Court had placed itself in the wrong by striking
down a Decree which was intended to forfeit stolen public
money. That may have been the reason for the reaction of
the Military Government to the decision of the Court, but
this reaction does not necessarily mean that the Court was
in error on the plane of legal and judicial principles.
I would also like to observe that, as I am not fully conversant
with the political situation and the legal traditions of Nigeria,
it is not possible for me nor is it desirable to offer any
comments on the propriety of the action takers by the
Federal Military Government of Nigeria in the wake of the
judgment of the Supreme Court in the case we are
discussing. I can, however, say about our own situation,
namely, that the Supreme Court of Pakistan, as at present
constituted, does not feel itself under an inhibition or
restraint in taking a view in this case which appears to be
dictated by the highest considerations' of law, justice, equity
and good, conscience, and I also see no reason why the
Martial Law Administration should not accept the decision
of this Court in the same spirit. I, therefore, venture to say
that reference to the aftermath of the judgment of the
Nigerian Supreme Court is completely misconceived and
irrelevant to the legal questions we are considering here.

Reverting now to the observations made by the Court in

Asma Jillani's case on the doctrine of necessity, I find that
Hamoodur Rahman, C. J. has referred with approval to the
decision in the Cyprus case as well as to the formulation of
the doctrine by Lord Pearce, who delivered the dissenting
judgment in the Privy Council in the Rhodesian case, already
referred to. In that judgment, Lord Pearce had indicated
three limitations for the validation of acts of the Smith
Government, namely, (i) So far as they are directed to and
reasonably required for ordinary .orderly running of the
State; (ii) So far as they do not impair the rights of citizens
under the lawful Constitution; and (iii) So far as they are not
intended to and do not in fact directly help the usurpation
and do not run contrary to the policy of the lawful
sovereign. The learned Chief Justice adopted these
principles but preferred to treat them as basis of
condonation and not legitimization, as he was dealing, ex
post facto with the acts of the usurper.

A review of the concept of the law of necessity, as

recognized in various jurisdictions, clearly confirms the
statement made in this behalf b Muhammad Munir, C. J. in
Reference by H. E. Governor-General P L D 1955 F C 435, to
the effect that an act which would otherwise be illegal
becomes legal if it is done bona fide under the stress of
necessity, the necessity being referable to an intention to
preserve the Constitution, the State or the society and to
prevent it from dissolution. The principle has been
reiterated by the Supreme Court m Asma Jillani's case with
the difference that where the Court is dealing with the acts
of a usurper, such acts may be condoned and T not validated
by the application of the taw of necessity. It seems tome ,l
therefore, that on facts, of which we have taken judicial
notice, namely, that the imposition of Martial Law was
impelled by .high consideration of State necessity and
welfare of the people, the extra-constitutional step taken by
the Chief of the Army Staff to overthrow the Government of
Mr. Z. A. Bhutto as well as the Provincial Governments and
to dissolve the Federal and the Provincial Legislatures stands
validated in accordance with the doctrine of necessity.

The question now arises as to what is the extent and scope

of the powers which the Chief Martial Law Administrator
may exercise during the temporary period for which he has
taken control of the administration in Pakistan. It is
contended by the learned Attorney-General that once the
take-over is validated on the-principle of necessity, then the
Chief Martial Law Administrator would have the right to
govern the country in any manner he thinks best, and the
Courts in Pakistan will be bound by the provisions of the
Laws (Continuance in Force) Order, 1977, which must
henceforth be treated as a supra-Constitutional instrument,
binding all authorities in Pakistan. He seeks to re-inforce this
submission by referring to the implications of Martial Law as
described in Corpus Juris Secundum Vol. 93, and "Salmond
on Jurisprudence", p. 190, 11th Edition.

According to the definition given on p. 115 of the Corpus

Juris Secundum, Martial Law, or more appropriately martial
rule, is the temporary government by military force and
authority of territory in which, by reason of the existence of
war or public commotion, the civil government is
inadequate to the preservation of order and the
enforcement of law. The definition continues to add that "In
strictness it is not law at all, but rather a cessation of all
municipal law as an incident of jus belli and because of
paramount necessity, it depends, for its existence, operation
and extent, on the imminence of public peril and the
obligation to provide for the general safety. It is essentially a
law or rule of force, a purely military measure, and in final
analysis is only the will of the Officer Commanding the
Military Force. As the offspring of necessity, it transcends
and displaces the ordinary laws of the land, and it applies
alike to military and non-military persons and is exercisable
alike over friends and enemies, citizens and aliens." The
authors also state that "The validity of Martial Law is always
a judicial question", and the establishment of Martial Law
does not itself oust or suspend civil authority or jurisdiction,
but is rather a recognition that the civil authority had been
suspended or has broken down as a result of the conditions
inducing the proclamation of martial rule.

According to Salmond, there are three kinds of martial law,

namely, (i) the law for the discipline and the government of
the Army itself; or (ii) the law by which the Army in time of
war governs foreign territory in its military occupation
outside the realm; or (iii) the law by which in time of war the
Army governs the realm, which is in derogation e" civil law,
so far as required by military necessity and the public safety.
In the present context, we are concerned with the third and
last kind of Martial Law. After discussing various legal
opinions as to the legality of such a Martial Law, the author
says that "It is sufficient to say that the better opinion would
seem to be that even within the realm itself the existence of
the state of war and of national danger justifies. in law the
temporary establishment of a system of military government
and military justice in derogation of the ordinary law of the
land, in so far as this is reasonably deemed necessary for the
public safety .... with the acts of military authorities done in
pursuance of such a system the civil Courts of law will not
concern themselves in time of war. In short, the legal basis
of Martial Law in this third sense is simply the common law
doctrine of necessity."

In an earlier part of this judgment, I have stated that it was

not necessary to discuss at any length the various kinds of
Martial Law, for the reason that the legal character of the
change which has taken place in Pakistan was not
dependent upon the name given to the new regime, as the
authorities overthrowing Mr. Z. A. Bhutto could have
governed by decree or by Martial Law Regulations etc. once
they had seized power by an extra-Constitutional step. In
spite of the reference made by the learned
Attorney-General to the textbooks mentioned above, I am of
the view that the definitions given here are irrelevant. We
are not dealing with a situation contemplated in the
statements relied upon by the learned Attorney-General;
rather with a situation of a more fundamental character,
where the constitutional machinery has broken down or its
authority has been eroded by factors of a political nature.
The disturbances which. ensued as a consequence were not
the direct cause, they were only the result of a fundamental
malady which was of a constitutional nature. 1t is also to be
noticed that the Proclamation of Martial Law and the speech
made by the Chief Martial Law Administrator on the evening
of the 5th of July 1977 clearly speak of the civilian President
continuing in office under the Constitution, and they also
contemplate that the civil Courts including the High Courts
and the Supreme Court shall continue to function as before,
subject to certain limitations spelt out in the Laws
(Continuance in Force) Order, to which I shall advert later. I
mention these facts to show that it would be inappropriate
to judge the present situation by reference to classical
statements as to the state of war contemplated by textbook
writers in relation to martial law.
In order to determine the true nature of the change, we
must examine, as already stated, all the surrounding
circumstances including the motivation of those who have
brought about the change and the objectives declared by
them as justifying the change. I would like to clarify here
that the use of what may be described as "the declaration of
intent" is not to be construed in the limited sense in which
the preamble to a statute or even the Constitution may be
looked at for ascertaining its true meaning. We are still in
the realm of ascertaining the true legal character of the
abrupt political change which has been brought about by
means of an extra-Constitutional measure, and for this
reason the declaration of intent is relevant for this higher
purpose, and is not to be confused with the limited use
which may be made of a preamble to a formal statute.

I have already referred in another context, to the speech

made by the Chief Martial Law Administrator on the evening
of the 5th of July 1977 to explain the reasons for his
take-over of the administration. He stated inter alia that:-

"But the Constitution has not been abrogated. Only the

operation of certain parts of the Constitution has been held
in abeyance. Mr. Fazal Elahi Chaudhry has very kindly
consented to continue to discharge his duties as President of
Pakistan as heretofore under the same Constitution. I am
grateful to him for this. To assist him in the discharge of his
national duties, a four-member Military Council has been
formed. The Council consists of the Chairman, Joint Chiefs of
Stag', and Chiefs of Staff of the Army, Navy and the Air
Force.
I will discharge the duties of the Chief of Army Staff and
Chief Martial Law Administrator. Martial Law Orders and
instructions as and when required will be issued under my
orders."

He further stated on this occasion that:

"I want to make it absolutely clear that neither I have any

political ambitions nor does the Army want to be detracted
from its profession of soldiering. I was obliged to step in to
fill in the vacuum created by the political leaders. I have
accepted this challenge as a true soldier of Islam. My sole
aim is to organise free and fair elections which would be
held in October this year. Soon after the polls power will be
transferred to the elected representatives of the people. I
give a solemn assurance that I will not deviate from this
schedule. During the next three months my total attention
will be concentrated on the holding of elections and I would
not like to .dissipate my powers and energies as Chief
Martial Law Administrator on anything else."

As to the place of Judiciary, he stated that:-

"It will not be out of place to mention here that I hold the
Judiciary of the country in high esteem. I will do my best to
refrain from doing anything which is likely to restrict the
power of the Judiciary. However, under unavoidable
circumstances, if and when Martial Law Orders and Martial
Law Regulations are issued, they would not be challenged in
any Court of law."
It will be seen that the declared objectives of the imposition
of Martial Law are to create conditions suitable for the
holding of free and fair elections in terms of the 1973
Constitution, which was not being abrogated, and only
certain parts of which were being held in abeyance, namely,
the parts dealing with the Federal and the Provincial
executives and Legislatures. The President of Pakistan was
to continue to discharge his duties as heretofore under the
same Constitution. Soon after the polls the power is to be
transferred to the elected representatives of the people. It is
true that owing to the necessity of completing the process
of accountability of holders of public offices, the holding of
elections had to be postponed for the time being but the
declared) intention of the Chief Martial Law Administrator
still remains the same, namely, that he has stepped in for a
temporary period and for the limited purpose of arranging
free and fair elections so as to enable the country to return
to a democratic way of life.

In the presence of these unambiguous declarations, it would

be high unfair and uncharitable to attribute any other
intention to the Chief Martian Law Administrator, and to
insinuate that he has not assumed power for the purposes
stated by him, or that he does not intend to restore
democratic institutions in terms of the 1973 Constitution.
Such being the case, in m opinion. the remarks made by De
Smith in his book "Constitutional an Administrative Law, to
which reference has already been made earlier, appeal with
full force to the situation prevailing at present in Pakistan,
namely:-
"In some situations where unconstitutional action has been
taken by person wielding effective political power, it is open
to a Judge to steer middle course. He may find it possible to
ask that the frame world of the pre-existing order survives
but the deviation from these norm can be justified on the
grounds of necessity. The principle of necessity, rendering
lawful what would otherwise be unlawful is not unknown to
English law; there is a defence of necessity, albeit of
uncertain scope, in criminal law and in constitutional law,
the application o martial law is but an extended application
of this concept. But the necessity must be proportionate to
the evil to be averted, and acceptance of the principle does
not normally imply total abdication from judicial review or
acquiescence in the supersession of the Legal Order; it t
essentially a transient phenomenon."

As a result, the true legal position which, therefore, emerges

is:-

(i) That the 1973 Constitution still remains the supreme law
of the land subject to the condition that certain parts
thereof have been held in abeyance on account of State
necessity;

(ii) That the President of Pakistan and the superior Courts

continue to function under the Constitution. The mere fact
that the Judges of the superior Courts have taken a new
oath after the Proclamation of Martial Law, does not in any
manner derogate from this position, as the Courts had been
originally established under the 1973 Constitution, and have
continued in their functions in spite of the proclamation of
Martial Law;

(iii) That the Chief Martial Law Administrator, having validly

assumed power by means of an extra-Constitutional step, in
the interest of the State and for the welfare of the people, is
entitled to perform all such acts and promulgate all
legislative measures which have been consistently
recognised by judicial authorities as falling within the scope
of the 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 toll 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 ordinary orderly

running of the State; and

(d) All such measures as would establish or lead to the

establishment of the declared objectives of the
proclamation of Martial Law, namely, restoration of 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 under the 1973
Constitution;

(iv) That these acts, or any of them, may be performed or

carried out by means of Presidential Orders, Ordinances,
Martial Law Regulations, or. Orders, as the occasion may
require; and

(v) That the superior Courts continue to have the power of

judicial review to judge the validity of any act or action of
the Martial Law' Authorities, if challenged, in the light of the
principles underlying the, law of necessity as stated above.
Their powers under Article 199 of the Constitution thus
remain available to their full extent, and may be exercised as
heretofore, notwithstanding anything to the contrary
contained in any Martial Law Regulation or Order,
Presidential Order or Ordinance.

This last point needs a little explanation. In the body of this

judgment opinions of certain textbook writers and
contemporary jurists have been quoted in support of the
proposition that the Courts established under the
pre-existing Legal Order continue to have the power and
jurisdiction t adjudicate upon the validity and effectiveness
of the new Legal Order. As I have held that the new Legal
Order is only for a temporary period, and for specified and
limited purpose, and does not seek to destroy the old Legal
Order but merely to hold certain parts thereof in abeyance
or to subject it to certain limitations on the ground of State
necessity or on the principle d salus populi suprema lex, the
superior Courts continue to remain the Judges of the validity
of the actions of the new regime in the light of the doctrine
y of necessity, for the new regime then represents not a new
Legal Order, but only a phase of constitutional deviation
dictated by necessity.
There is yet another, and a stronger reason for holding that
the power of judicial review continues. The 1973
Constitution provides for a clear trichotomy of powers
between the executive, legislative and judicial organs of the
State. However, owing to reasons of necessity, the executive
and the legislative power now stands combined in one
authority, for the reason that these two organs of the State
had lost their constitutional and moral authority in the
circumstances arising since the 7th of March 1977, but no
such considerations arose in regard to the judicial organ of
the State. Accordingly, on no principle of necessity could
powers of judicial review vested in the superior Courts
under the 1973 Constitution, be taken away.

Next, even if for any reason the principle or power of judicial

review embodied in the relevant provisions of the 1973
Constitution be held not to. be available under the new
dispensation, the fact remains that the ideology, of Pakistan
embodying the doctrine that sovereignty belongs to Allah
and is to be exercised on his behalf as a sacred trust by the
chosen representatives of the people, strongly militates
against placing the ruler for the time being above the law,
and not accountable to any one in the realm. Muslim rulers
have always regarded themselves as being accountable to
the Courts of the land for all their actions and have never
claimed exemption even from personal appearance in the
Courts. The Courts of Justice are an embodiment and a
symbol of the conscience of the Millat (Muslim community),
and provide an effective safeguard for the rights of the
subjects. On this principle a well, the power of judicial
review for judging the validity of the actions of the Martial
Law Authorities must continue to remain in the superior
Courts.

Lastly, the Court is bound to take note of the fact that

already several instances have been brought to its notice
where the ordinary civil rights of the people are being
interfered with by the subordinate Martial La Authorities
even though the laws of the land, which have been kept
alive under the Laws (Continuance in Force) Order, 1977,
make full provision for their adjudication. In some cases,
interference has occurred even when the w contending
parties had already been litigating in the civil Courts
regarding the same disputes. The necessity which justified
the Proclamation of Martial Law, did not arise owing to the
failure of the Courts to adjudicate on these matters Such
matters must, therefore, continue to fall outside the
purview of the Martial Law Authorities, and the only remedy
to the citizens against any such encroachment can be by way
of judicial review in the superior Courts.

I now proceed to examine the provisions of the

Proclamation as well as of the Laws (Continuance in Force)
Order,. 1977, in the light of the principles just stated. There
has been considerable argument at the Bar as to the correct
description of these legal instruments. Mr. Sharifuddin
Pirzada would like to describe them as supra-Constitutional
instruments, for, in his opinion, they override the 1973
Constitution and are binding on every one by virtue of their
oven force. As I am not persuaded to accept this last
contention for the reason already stated, namely, that the
power of the Court to test the validity of all actions of the
Chief Martial Law Administrator on the touchstone of
necessity remains, I would accordingly describe these
instruments as being of an extra-Constitutional nature so as
to conform to the description of the action by virtue of
which the Chief Martial Law Administrator has assumed the
administration of Pakistan.

For facility of reference, the Proclamation and the Laws

(Continuance in Force) Order, 1977, as originally
promulgated may be reproduced here:-

"PROCLAMATION

Whereas, I, General Mohammad Zia-ul-Haq, Chief of the

Army Staff, have proclaimed Martial Law throughout
Pakistan and assumed the office of the Chief Martial Law
Administrator, hereby order and proclaim as follows:-

(A) The Constitution of the Islamic Republic of Pakistan shall

remain in abeyance;

(B) The National Assembly. the Senate and the Provincial

Assemblies ' shall stand dissolved;

(C) The Prune Minister, the Federal Ministers, Ministers of

State, Advisers to the Prime Minister, the Speaker and
Deputy Speaker of the National Assembly and the Provincial
.Assemblies, the Chairman and Deputy Chairman of the
Senate, the Provincial Governors, the Provincial Chief
Ministers and the Provincial Ministers shall cease to hold
office;
(D) The President of Pakistan shall continue in Office ; and

(E) The whole of Pakistan will come under Martial Law.

THE LAWS (CONTINUANCE IN FORCE) ORDER, 1977

C. M. L. A. ORDER NO. 1 OF 1977

In pursuance of the Proclamation of the fifth day of July

1977 and in exercise of all powers enabling him in that
behalf, the Chief Martial Law Administrator is pleased to
make and promulgate the following Order:

1----(1) This Order may be called the Laws (Continuance in

Force) Order, 1977.

(2) It extends to the whole of Pakistan.

(3) It shall come into force at once.

2.--(1) Notwithstanding the abeyance of the provisions of

the Constitution of the Islamic Republic of Pakistan
hereinafter referred to as the Constitution, Pakistan. shall,
subject to this Order and any order made by the President
and any regulation made by the Chief Martial Law
Administrator, be governed as nearly as may be in
accordance with the Constitution.

(2) Subject as aforesaid, all Courts in existence immediately

before the commencement of this Order shall continue to
function and to exercise their respective powers and
jurisdictions:

Provided that the Supreme Court or a High Court shall not

have the power to make any order of the nature mentioned
in Article 199 of the ., Constitution against the Chief Martial
Law Administrator or a Martial s Law Administrator or an.
person exercising powers or jurisdiction under the authority
of either.

(3) The Fundamental Rights conferred by Chapter I of Part II

of the Constitution, and all proceedings pending in any
Court, in so far as they are for the enforcement of any of
those rights shall stand suspended.

3.- (1) The President shall act on and in accordance with the
advice of the Chief Martial Law Administrator.

(2) The Governor of a Province shall act on, and in

accordance with, the advice of the Martial Law
Administrator appointed by the Chief Martial Law
Administrator for the Province.

4.-(1) No Court, tribunal or other authority shall call or

permit to be called in question the proclamation of the fifth
day of July, 1977, or any Order or Ordinance made in
pursuance thereof or any Martial Law Regulation or Martial
Law Order.

(2) No judgment, decree, writ, order or process whatsoever

shall be made or issued by a Court or tribunal against the
Chief Martial Law Administrator or any Martial Law
Authority exercising powers or jurisdiction under the
authority of the Chief Martial Law Administrator.

5.-(1) Notwithstanding the abeyance of the provisions of the

Constitution, but subject to any order of the President or
regulation made by the Chief Martial Law Administrator, all
laws, other than the Constitution, and all Ordinances,
Orders-in-Council, Orders made by the President, Rules,
by-laws, regulations, notifications and other legal
instruments in Pakistan or any part thereof, or having
extra-territorial validity shall, so far as may be and with such
adaptation as the President may see fit to make, continue in
force until altered, amended or repealed by competent
authority.

(2) In clause (1) "in force", in relation to any law, means

having effect as law whether or not the law has been
brought into operation.

6. Subject to clause (2) of Article 3, the powers of a

Governor . shall be those which he would have had the
Federal Government directed him to assume on its behalf all
the functions of the Government of the province under the
provisions of Article 232 of the Constitution.

7.-(1) An Ordinance promulgated by the President or by the

Governor of a province shall not be subject to the limitation
as to its duration prescribed in the Constitution.
(2) The provisions of clause (1) shall also apply to an
Ordinance ?Which was in force immediately before the
commencement of this Order.

8. All persons who, immediately before the commencement

of this Order, were in the service of Pakistan as defined in
Article 260 of the Constitution and those persons who
immediately before such commencement were in office as
Judge of the Supreme Court or a High Court or
Auditor-General, shall continue in the said service on the
same terms and conditions and shall enjoy the same
privileges, if any.

9. Any provision in any law, providing for the reference of a

detention order to a Review Board shall be of no effect.

10. The Proclamation of Emergency referred to in Article 280

of the Constitution, as in force immediately before the
commencement of this Order, shall continue in force."

It will be seen that the Proclamation embodies and

describes in legal form, the extra-constitutional action which
the Chief of the Army Staff has taken on the ground of
necessity. The proclamation must, therefore, be held valid
for the same reason; in fact, the entire controversy dealt
with in the preceding pages has concerned this Proclamation
and nothing else.

A perusal of the provisions of the Laws (Continuance in

Force) Orderly also shows that they are primarily designed
to give effect to the purposes of the Proclamation. As
however this Order is an offspring of necessity, the superior
Courts continue to have the power of judicial review,
notwithstanding anything to the contrary contained in this
Order, to test the validity of its provisions and any action
taken there under, in the light of the principles regulating
the application of the law and doctrine of necessity, as
already set put earlier.

I now turn to the examination of the last question arising in

this case, namely, whether the Fundamental Rights can still
be enforced in spite of the prohibition contained in clause
(3) of Article 2 of the Laws (Continuance in Force) Order, vi:.,
that "The Fundamental Rights conferred by Chapter I of Part
II of the Constitution, and all proceedings pending in any
Court, in so far as they are for the enforcement of any of
those rights shall stand suspended." '1 he contention of Mr.
Yahya Bakhtiar is that the right to enforce the Fundamental
Rights could be suspended only during the continuance of
an Emergency under Article 232 of the Constitution, and
that too in terms of an Order made by the President under
clause (2) of Article 233 thereof, but the Emergency already
proclaimed in Pakistan has since been revoked by the
respondent with effect from the 15th of September 1977,
with the result that the Fundamental Rights stand revived.
Messrs A. K. Brohi and Sharifuddin Pirzada, however,
contend that in spite of the revocation of Emergency, the
Fundamental Rights remain suspended under Article 2(3) of
the Laws (Continuance in Force) Order, 1977, which is
independent of the Emergency contemplated in Article 232
of the Constitution.
It may be stated that the Emergency proclaimed by General
Agha Mohammad Yahya Khan, as President of Pakistan, on
the 23rd of November 1971, was continued in force under
Article 260 of the 1973 Constitution. It was varied by a
Proclamation on the 21st of April 1977 so as to include
internal Emergency under Article 236 of the Constitution,
and it was revoked altogether on the 15th of September
1977. An order was made on the 15th of August 1973 by the
President under Article 233(2) of the Constitution sus-
pending the right to enforce certain specified Fundamental
Rights, but this Order was rescinded on the 14th of August
1974.

The right to enforce Fundamental Rights was again

suspended under Article 245 of the Constitution with effect
from the 21st of April 1977, in respect of areas where the
Armed Forces had been called out in aid of civil power under
the directions of the Federal Government. The present
position, however, is that the Emergency having been
revoked altogether with effect from the 15th of September
1977, there is no operative order in the field in terms of the
Constitution, suspending the right to enforce Fundamental
Rights.

The question, therefore, is whether the provision embodied

in this behalf in clause (3) of Article 2 of the Laws
(Continuance in Force) Order is valid in the light of the
principles governing the application of the law of necessity.
One of the conditions stated in this behalf is that the Chief
Martial Law Administrator is entitled to perform all acts and
take such legislative measures which are in accordance with,
or could have been made under the 1973 Constitution. Now,
the Constitution does permit the suspension of the right to
enforce Fundamental Rights in case of an Emergency of the
nature contemplated in Article 232 thereof. Clause (1) of this
Article says that "If the President is satisfied that a grave
Emergency exists in which the security of Pakistan or any
part thereof is threatened by war or external aggression or
by internal disturbances beyond the power of a Provincial
Government to control, he may issue a Proclamation of
Emergency." If, therefore, it is found that the situation of
the kind contemplated by this provision of the Constitution
exists in Pakistan, then the Chief Martial Law Administrator
would be entitled to make an order of the kind which could
be made under clause (2) of Article 233 of the Constitution
suspending the right to enforce. Fundamental Rights.

It has already been seen that the conditions culminating in

the Proclamation of Martial Law on the 5th of July 1977,
were so grave that the very existence of the country was
threatened, that chaos and bloodshed, was apprehended
and there was complete erosion of the constitutional
authority of the Federal Government, leave alone that of the
various Provincial Governments. The situation had indeed
deteriorated to such an extent that it justified an extra--
Constitutional step, resulting in the suspension of certain
parts of the Constitution itself by the Armed Forces. Such
being the case, the situation was obviously at least of the
kind contemplated by clause (1) of Article 232 of the
Constitution. In the circumstances, the Chief Martial Law
Administrator was justified in providing in clause (3) of
Article 2 of the Laws (Continuance in Force) Order that the
right to enforce Fundamental Rights shall be suspend-: ed. It
was clearly an order which could have been made under the
1973 Constitution. No exception can, therefore, be taken to
the validity of this provision.

As the present petition under clause (3) of Article 184 of the

Constitution is intended for the enforcement of certain
Fundamental Rights of the detenus, it is not maintainable for
the reason that the Fundamental Rights stand validly
suspended since the 5th of July 1977, under clause (3) of
Article 2 of the Laws (Continuance in Force) Order, 1977. On
this view of the matter, it is not necessary for this Court to
examine the contention that the Martial Law Order No. 12
under which detentions have been ordered is not valid, or
that the detentions are mala fide.

The final position as emerging from this somewhat lengthy

discussion of the various questions arising in this case may
briefly be summed up as follows :-

(i) That the legal character and validity of any abrupt political
change, brought about in a manner not contemplated by the
.pre-existing Constitution or Legal Order, cannot be judged
by the sole criterion of its success or effectiveness, as
contemplated by Kelsen's pure theory of law. Not only has
this theory not been universally accepted, or applied, it is
also open to serious criticism on the ground that, by making
effectiveness of the political change as the sole condition or
criterion of its legality, it excludes from consideration
sociological factors or morality and justice which contribute
to the acceptance or effectiveness of the new Legal Order.
The legal consequences of such a change must, therefore,
be determined by a consideration of the total milieu in
which the change is brought about, including the motivation
of those responsible for the change, and the extent to which
the old Legal Order is sought to be preserved or suppressed ;

(ii) That in any case the theory of revoluntionary legality can

have no application or relevance to a situation where the
breach of legal continuity -is of a purely temporary nature
and for a specified limited purpose Such a phenomenon can
more appropriately be described as one of constitutional
deviation rather than of revolution ;

(iii) That examined in this light, the Proclamation of Martial

Law on the 5th of July 1977, appears to be an
extra-Constitutional step necessitated by the complete
break-down and erosion of the constitutional and moral
authority of the Government of Mr. Z. A. Bhutto, as a result
of the unprecedented protest movement launched by the
Pakistan National Alliance against the alleged massive
rigging of elections to the National Assembly, held on the
7th of March 1977. It was a situation for which the
Constitution provided no solution, and the Armed Forces
had, therefore, to intervene to save the country from
further chaos and bloodshed, to safeguard its integrity and
sovereignty, and to separate the warring factions which had
brought the country to the brink of disaster ;

(iv) That the imposition of Martial Law, therefore, stands

validated on the doctrine of necessity, and the Chief Martial
Law Administrator is entitled to perform all such acts and
promulgate all legislative measures which have been
consistently recognised by judicial authorities as falling
within the scope of the law of necessity ;

(v) That it has also become clear from a review of the events
resulting in the culmination of Martial Law, and the
declaration of intent made by the Chief Martial Law
Administrator, that the 1973 Constitution still remains the
supreme law, subject to the condition that certain parts
thereof have been held in abeyance on account of State
necessity; and the President of Pakistan. as well as the
superior Courts continue to function under this Constitution.
In other words, this is not a case where the old Legal Order
has been completely suppressed or destroyed, but merely a
case of constitutional deviation for a temporary period and
for a specified and limited objective, namely, the restoration
of law and order and normalcy in the country, and the
earliest possible holding of free and fair elections for the
purpose of the restoration of democratic institutions under
the 1973 Constitution ;

(vi) That, accordingly, the superior Courts continue to have

the power of judicial review to judge the validity of any act
or action. of the Martial Law Authorities if challenged in the
light of the principles underlying the law of necessity as set
out in this judgment. Their powers under Article 199 of the
Constitution thus remain available to their full extent, and
may be exercised as heretofore, notwithstanding anything
to the contrary contained in any Martial Law Regulation or
Order, Presidential Order or Ordinance ; and
(vii) That the provisions contained in clause (3) of Article 2 of
the Laws (Continuance in Force) Order, 1977, suspending
the right to enforce Fundamental Rights are valid for the
reason that the situation prevailing in the country was
obviously of such a nature as to amount to an Emergency
contemplated by clause (1) of Article 232 of the
Constitution, and the right to enforce Fundamental Rights
could, therefore, be legitimately suspended by an order of
the kind which could have been made under clause (2) of
Article 233 of the Constitution.

As a result, the present petition fails and is hereby

dismissed. However, it will be for the detenus, if so advised,
to move the High Courts concerned under Article 199 of the
Constitution.

Before parting with this judgment, it is necessary to refer to

certain misgivings and apprehensions expressed by Mr.
Yahya Bakhtiar, learned counsel for the petitioner, to the
effect that the postponement of the elections scheduled to
be held on the 18th of October 1977, has cast a shadow on
the declared objectives of the Chief Martial Law
Administrator. After seeking instructions from his client, Mr.
A. K. Brohi has informed the Court that the Chief Martial Law
Administrator intends to hold elections as soon as the
process of the accountability of the holders of public offices
is completed, and the time factor depends upon the speed
with which these cases are disposed of by the civil Courts
concerned. The learned Attorney-General has stated at the
Bar that, in his opinion, a period of about six months is
needed for this purpose, and thereafter it will be possible to
hold the elections within two months.

While the Court does not consider it appropriate to issue

any directions, as suggested by Mr. Yahya Bakhtiar, as to a
definite time-table for the holding of elections, the Court
would like to state in clear terms that it has found it possible
to validate the extra-Constitutional action of the Chief
Martial Law Administrator not only for the reason that he
stepped in to save the country at a time of grave national
crisis and constitutional break-down, but also because of the
solemn pledge given by him that the period of constitutional
deviation shall be of as short a duration as possible, and that
during this period all his energies shall be directed towards
creating conditions conducive to the holding of free and fair
elections, leading to the restoration of democratic rule in
accordance with the dictates of the Constitution. The Court,
therefore, expects the Chief Martial Law Administrator to
redeem this pledge, which must be construed in the nature
of a mandate from the people of Pakistan, who have, by and
large, willingly accepted his administration as the interim
Government of Pakistan.

In the end, we would like to express our deep appreciation

for the valuable assistance rendered by the learned
Attorney-General for Pakistan, Mr. Sharifuddin Pirzada, and
the learned counsel for the parties, namely, Mr. Yahya
Bakhtiar for the petitioner and Mr. A. K. Brohi for the
respondent, in the decision of this case, which has raised
difficult and complicated questions of constitutional law.
WAHEEDUDDIN AHMAD, J.-I have had the advantage of
reading the judgment of my Lord the Chief Justice. I am in
respectful agreement with the reasoning and conclusions
reached by him. I cannot add anything further usefully to the
contribution already made by him.

I was a party to the judgment of this Court in Asma Jillani's

case an I am of the considered view that the principles laid
down in the above ca are not applicable to the facts of the
present case. In the circumstances of the present case the
principles enunciated in the Reference by His Excellence The
Governor-General (P L D 1955 F C 435) will have to be
invoked for solving the present constitutional dead-lock.

MUHAMMAD AFZAL CHEEMA, J.-I have had the privilege of

going through the elaborate judgment proposed to be
delivered by my Lord the Chief Justice and am in respectful
agreement with the views expressed and the conclusions
reached therein. However, I feel tempted to make a few
observations in order to highlight one or two aspects of my
Lord's judgment.

1t needs hardly to be mentioned that this case besides

involving determination of extremely complicated
constitutional issues having far-reaching implications and a
direct and immediate impact on the entire nation which is
anxiously awaiting its decision, also calls for the resolution of
the conflict of views expressed by this Court in Dosso's case
(P L D 1958 S C (Pak.) 533) and Asma Jillani's case (P L D 1972
S C 139) or reaffirmation of one of them. Both the
judgments having been widely published and internationally
commented upon.

Mr. Brohi's arguments. were mainly directed towards the

defence of the Kelsonian theory and if accepted would have
in substance led to the restoration of this Court's dictum in
Dosso's case. It may be observed with respect that Islam
being the ideological foundation of the State of Pakistan any
man-made legal theory divorced from morality and coming
into conflict with the Divine Law of Islam would be wholly
irrelevant for our purposes to the extent of its repugnancy
to the latter. Unlike a pure theory of law, Islamic principles
are subjectively centred round morality and are aimed at the
establishment of an C orderly and peaceful moral society by
taking an equally, pragmatic view in the matter of their
application and placing the security safety and welfare of
the people about everything else. The doctrine of necessity
is an inevitable outcome of this realistic approach and has
been recognized by Islam both in the individual as well as
the collective field.

The object of legal principles is to ensure proper regulation

of human conduct and behaviour to the benefit of the
individual and the society. Islam has permitted and
condoned a departure from their strict observance and
application in cases of extreme necessity and compulsion.
The principle of public welfare (Salus populi est supremo lex)
follows as a necessary corollary from this. There are several
instances when in a peculiar situation strict compliance with
the Qur'anic injunction was found to result in greater
hardship and mischief and likely to create more
complications the remedy proving worse than the disease,
the Holy Prophet or the Caliphs did not insist on its
enforcement and temporarily suspended it on ground of
expediency. The doctrine of necessity is not, therefore, a
juristic concept of the West but is of Islamic origin having
been based on and deduced from the following Verses of
the Holy Qur'an :-

(1) Al- Baqara II-173;

He hath only forbidden you dead meat, and blood, and the
flesh of swine, and that on which any other name hath been
invoked besides that of God. But if one is forced by
necessity, without lawful disobedience, nor transgressing
due limits, then he is guiltless, for God is oft-forgiving Most
Merciful.

(2) Al-Maeda V=4;

Forbidden to you (for food) are dead meat, blood, the flesh
of swine, and that on which hath been invoked the name of
other than God . . . . but .if any one is forced by hunger, with
no inclination to transgression, God is indeed of forgiving,
Most Merciful.

(3) Al-Inaam VI=119:

He has explained to you in detail what is forbidden to you

except under compulsion of necessity.

(4) Al-Nahal XVI=115:

He has only forbidden you dead meat and blood and the
flesh of swine…………………………………………………………….but if
one is forced by necessity nor transgressing due limits, then
God is oft-giving, Most Merciful.

The Muslim exegesists and jurists have also deduced the

above principle from Verse No. 106 of Sura XVI: "Any one
who after accepting faith in God utters unbelief except
under compulsion remaining firm in faith . . . . . . ."

It would be abundantly clear from this that in order to save

his skin, a Muslim has been permitted even to go to the
extent of a verbal denial of his belief and making a
sacrilegious utterance.

These Verses found further support from the following

traditions of the Holy Prophet (peace be upon him) .-

This in substance means that the principal objective of

avoiding harm or damage should always be kept in view and
never lost sight of.

In these two traditions of which one is reported from (

Umme-Kalsoom) and the other from (Asma Binte Yazid), the
Holy Prophet condoned misstatements of fact made bona
fide .during (i) war, (ii) for effecting compromise amongst
the people in general, and (iii) for bringing about
reconciliation between husband and wife in particular.
It would not be out of place to refer in context to two
important historical incidents. One is that the Holy Prophet
prohibited the cutting of hands for an established theft
during battle and the other is that of suspension of the
imposition of this Hadd by Caliph Omar during the year of
famine.

From the above verses, traditions and incidents the Muslim

exegesis’s and doctors formulated the following juristic
principles :-

(1) Necessities make permissible acts otherwise, prohibited.

(2) Harm or damage has to be done away with.

(3) Specific harm or damage can be tolerated in order to

obviate general harm or damage.

(4) While confronted with two evils one should choose the
lesser evil.

(5) The obviation of a greater harm may be sought through a

lesser harm.

(6) Removal of evils is more important than achievement of

good and shall take precedence over it as the Sharia pays
more heed to the observance of prohibitions than
compliance with affirmative commandments.
According to Imam Al-Ghazali the doctrine of necessity could
be legitimately invoked for the preservation of (i) religion
(ii) life (iii) reason (iv) progeny and (v) property .

The raison d'etre of the doctrine of individual necessity

applies with full force to the doctrine of State necessity
which is nearly an extension of the v former -and is invoked
in graver situations of National importance and
comprehension.

In Verse 59 of “Sura AL-Nissa” the Muslims have been

enjoined to submit to Allah, His messenger and those in
authority from amongst them.

The obedience of the latter is not, however, absolute and

unqualified but is subject to the condition that the
commands of the ruler should be in conformity with and not
in violation of the Islamic injunctions so much so that even
the allegiance to the Holy Prophet has been made
contingent on this very condition as would be clear from
Verse 12l of Sura Al-Mumtahnah :-.

They shall not disobey thee in any just matter.

This is further clear from the following two traditions of the

Holy Prophet (peace be upon him);--

(1) Whoever disobeys Allah shall not be obeyed.

(2) There is no obedience of the creature in disobedience of

the Creator.
On assumption of the Office of Amir-ul-Momineen, Abu
Bakar, the First Caliph addressed the audience in the
following words :-

Obey me so long as I obey God and His messenger and if I

disobey them don't obey me.

It is thus abundantly clear that submission to the authority

of the ruler and obedience to his commands does not
extend to illegal and un-Islamic directives or orders. During
the Umayyad and the Abbasid Caliphates when the Muslims
had to deal with unjust and tyrannical rulers, the Muslim
doctors were often confronted with the problem as to
whether the community should unquestionably submit to
the authority of these rulers, or whether in view of the
above injunctions and traditions the people were under an
obligation to rise and revolt against them. It would not be
out of place to refer in this context to two technical
expressions used by the Muslim jurists. One is “Umam
Matghalib” a ruler who captures political power and takes
effective control of the administration of the country. In fact
“ Redulmuhtar” refers to three modes of appointment of the
Imam : (i) By the allegiance of the leading personalities ; (ii)
By nomination of the predecessor ; and (iii) By capturing
political power by force i.e “Umam Matghalib”. According to
the Hanfis such a ruler could be accepted on the. doctrine of
necessity. The other expression is “Kharooj” i. e. to rise in
revolt against the ruler of the time who is unjust, tyrannical
and habitually disobeys the Islamic injunctions. It would be
interesting to note that Imam Abu Hanifa had used the
technical expressions of Imam Bil-Haq and Imam Bil-Fehl
which are respectively synonymous -with de jute and de
facto, the two oft-repeated terms with which we are so
familiar. In fact one is deeply impressed by the most
reasonable and realistic attitude of the Muslim jurists in
regard to this very sensitive and complicated issue. While on
the one hand great emphasis is laid on the maximum
tolerance of an unjust ruler in the wider interests of public
order, prevention of chaos, and bloodshed, such
considerations become irrelevant when he openly
transgresses the limits of Allah, and is unjust and tyrannical.
Taking a balanced view Imam Abu Hanifa adopted a middle
of the road course and did not subscribe to the extremist
stand taken by the Moatazzilites and the Khawarij. on one
hand and the reactionary Murhiba on the other. He held
that “Kharooj” against an unjust ruler was not lawful so long
as there was no interference with the orderly running of the
Government, people were free to offer prayers. perform
pilgrimage and the Courts of law continued to function
properly. His own conduct in supporting the “Kharooj of Zain
Bin Ali grandson of Imam Hussain and brother of Imam
Baqar in the first instance and subsequently of Muhammad
Bin Abdullah in 145 Hijra against the Abbasid Caliph
Al-Mansoor is also very significant. This balanced attitude of
Imam Abu Hanifa was based on a rational interpretation of
the two apparently divergent traditions of the Holy Prophet.
In one of these emphasis was laid on the imperativeness of
the obedience of “Umam Matghalib” a de facto ruler and it
was observed that people were under an obligation to obey
him even if he were an ugly abyssinian with chopped off
nose provided he captured power with a bona fide intention
of delivering the Nation from the clutches of an unjust tyrant
and himself observed the limitats of Allah. In the other the
Muslims have been enjoined to rise in revolt against an
unjust ruler and if killed in action have been described as
martyrs.

Coming now to the circumstances of the instant case, my

Lord the Chief Justice has fully explained the factual position
as it obtained before the Arm took over on 5-7-1977. The
Court could not fail to take judicial notice o F the crisis which
developed by way of protest against the alleged rigging of
the General Elections when the entire nation rose against
the Government of Mr. Bhutto. There was complete
break-down of law and order, several precious lives were
lost and the administration of the major cities had to be
handed over by him to the Armed Forces which too were
unable to cope with the situation and restore normalcy. The
allegations of huge purchases of arms and their large-scale
distribution amongst the members of the PPP in the country
with a view to prepare them for civil war do not appear to
have been specifically denied in the rejoinders filed by the
petitioner or by Mr. Bhutto himself. It would not therefore,
be too much to hold that the country was on the verge of a
conflagration. The Constitution did not contemplate such a
situation nor did it offer a resolution of the crisis. It was in
this background that respondent No. 1 moved in, for a
temporary period and with the limited object of restoring
normalcy and holding free and fair Elections as repeatedly
declared by him. The doctrine of necessity is, therefore,
attracted with full force in these circumstances as explained
by my Lord the Chief Justice. I fully endorse his Lordship's
exposition of the constitutional position in regard to the
scope of the validity of the actions of the new Regime and
the conditions and limitations attached thereto.

MUHAMMAD AKRAM, J.-I have the advantage of having

gone through the leading judgment proposed by my Lord,
the Chief Justice for announcement. I have no hesitation in
fully agreeing with his masterly. analysis of the facts,
exposition of the legal tangles and conclusions so lucidly
recorded by him in this case involving very difficult and
complicated questions of great constitutional importance. I
would, however, respectfully like to dilate upon some of the
legal aspects of Hans Kelsen's Pure Theory of Law
(positivism), the implications of the Martial Law currently
in-force in the country and the doctrine of necessity,
invoked before us, merely to supplement what has already
fallen from his pen.

Hans Kelsen's Pure. Theory of Law.

Mr. A. K. Brohi, appearing for the Federation of Pakistan,

with his great erudition and philosophy that he brought. to
bear into this case, has done his best to analyses and explain
this theory and its implications at length before us.
Therefore, in fairness to him it is necessary in the first
instance to enter upon a detailed analysis of this theory as
advocated before us.

The positivist movement started with the beginning of the

nineteenth century. It represented a reaction against the a
priori method of thinking that characterised the preceding
age. Prevailing theories of Natural Law shared the common
feature of turning away from the realities of actual law in
order to discover in nature or reason principles of universal
validity. Actual laws were then explained or condemned
according to these canons. But the positivists believed that
law as it is actually laid down (positivism) has to be kept
separate from the law that ought to be. They made the
distinction between "what the law is" from "what the law
ought to be".

Bentham (1748 1832) and . Austin (1790-1859) were the

protagonists of the British theory of positivism with their
firm belief in the separation of law and morals. Thus
according to them laws even if morally outrageous, were still
laws. After them Professor H. L. A. Hart is regarded as the
leading contemporary representative of British positivism.
He defends the Positivist School of Jurisprudence from many
of the criticisms which have been levied against its
insistence on distinguishing the law that "is" from the law
that "ought" to be.

But the pure theory of law propounded by Professor Hans

Kelsen (1881-1973) marks the refined development to date
of analytical positivism. He argued that a theory of Law must
deal with law as actually laid down, not as it' ought to and it
must be shorn of and free from all variable factors such as
ethics, politics, sociology, history etc. It must, in other
words, be "pure" (rein). Knowledge of law, according to
Kelsen, meant a knowledge of "norms". ; and a norm is a
proposition in hypothetical form. Jurisprudence consists of
the examination of the nature and organisation of
normative propositions. It includes all norms created in the
process of applying some general norm to a. specific action.
According to Kelsen, a dynamic system is one .in which fresh
norms are constantly being created on the authority of an
original, or basic norm, a "Grundnorm". Around these
points, Kelsen unfolded his picture of law. It appears to him
as a hierarchy of norms with the "Grundnorm" forming the
apex of the pyramid. If a new fact or event is observed
which fails to conform to a scientific "law", then that "law"
has to be modified to include it. It is a cardinal feature of
Kelsen's theory that laws consist of "ought" propositions.
The prescription of sanction imparts law-quality to a norm,
or putting it in another way, "Law is the primary norm,
which stipulates the sanction."

According to Kelsen, in every legal order, no matter with

what proposition of law one begins, a hierarchy of "oughts"
is traceable back to some initial, fundamental "ought" on
which the validity of all the others ultimately rests. This is
the Grundnorm, the basic or fundamental or apex norm. The
Grundnorm need not be the same in every legal order, but a
Grundnorm of some kind there will always be, whether, e.g.
a written Constitution or will of a dictator. The Grundnorm is
not the Constitution, it is simply the presupposition,
demanded by theory, that this Constitution ought to be
obeyed. Therefore, the Grundnorm is always adapted to the
prevailing state of affairs. The Grundnorm only imparts
validity to the Constitution and all other norms derived from
it. In Great Britain, for instance, the entire legal order is
traceable to the propositions that the enactments of the
Crown in Parliament and judicial precedents ought to be
treated as "law". According to Kelsen every rule of law
derives its validity from some other rule standing behind it.
But the Grundnorm has no rule behind it. Its validity has
therefore to be assumed for the purpose of theory. A rule is
valid, not because it is, or is likely to be, obeyed by those to
whom it is addressed, but by virtue of another rule
imparting validity to it. The validity of each. individual rule
does depend on the effectiveness of the legal order as a
whole, or in case it is "by and large" effective.

It is of the utmost importance that the Grundnorm should

secure for itself a minimum of effectiveness, i. e., a certain
number of persons who are willing to abide by it and it
should command a minimum of effectiveness. If a
Grundnorm ceases to drive a minimum of support, it ceases
to be the basis of the legal order, and any other proposition
which does obtain support will replace it. Such a change in
the state of affairs is said to amount to a "revolution" in law.

From the above premises, Hans Kelsen in his General Theory

of Law ,and State (pages 118-119), proceeds on to the
discussion of the subject of "Change of the Basic Norm" or
the Grundnorm. In this connection he observed;----

"It is just the phenomenon of revolution which clearly shows

the significance of the basic norm. Suppose, that a group of
individuals attempt to seize power by force, in order to
remove the legitimate government in a hitherto monarchic
State, and to introduce a republican form of government. If
they succeed, if the old order ceases, and the new ' order
begins to be efficacious, because the individuals whose
behaviour the new order regulates actually behave, by and
large, in conformity with the new order, then this order is
considered as a valid order. It is now according to this new
order that the actual behaviour of individuals is interpreted
as legal or illegal. But this means that a new basic norm is
presupposed. It is no longer the norm according to which
the old monarchical constitution is valid, but a norm
according to which the new republican constitution is valid,
a norms endowing the revolutionary government with legal
authority. If the revolutionaries fail, if the order they have
tried to establish remains inefficacious, then, on the other
hand, their undertaking is interpreted, not as a legal, a
law-creating act, as the establishment of -a constitution, but
as an illegal act, as the crime of treason, and this according
to the old monarchic constitution and its specific basic
norm."

It is this passage in Kelsen which forms the basis of the

decision by the Supreme Court of Pakistan in the State v.
Dosso P L D 1958 S C (Pak.) 533, and which is the corner
stone of. the entire argument elaborately advanced before
us by Mr. A. K. Brohi for the respondent in support of the
Proclamation of Martial Law and the regime with its new
Legal Order that has allegedly become effective and has
supplanted the old Legal Order.

Dias in his Jurisprudence (Fourth Edition), has adversely

criticised Kelsen s theory. He observed that the Grundnorm
is a key concept in his theory but that it raises many
difficulties. Some writers have pointed out, with a hint of
criticism, that in whatever way effectiveness of the Grund-
norm is measured Kelsen's theory has ceased to be "pure" at
this point. For effectiveness would seem to depend on those
very sociological 'factors which he so vehemently excluded
from his theory of law. If, ' then, the Grundnorm upon which
the validity of all other norms depends is tainted with
impurity, it is arguable that the others are similarly tainted.
Another line of attack on the claim to purity is that Kelsen's
whole scheme is an a priori one dependent on empirical
observations for confirmation. He offered it. as a "theory of
interpretation'', which implies that it is not a description but
a model and thus evaluative in function. This criticism
touches, riot the theory, but his claim to its purity. According
to him the effectiveness of the legal order as a whole is
prerequisite to the validity of each single rule- in it. If as
seems clear, some inquiry into political and sociological
factors has to precede, or at least is implicit in, the
adaptation of a particular Grundnorm as the criterion of
validity and if the validity of every part of the system is
dependent upon the continued effectiveness of the whole,
then on his own showing the study of jurisprudence should
include the study of the social environment. Dias has further
pointed out that Kelsen's picture is that of a legal order
viewed only in the present time-frame, which explains his
exclusion of moral, sociological and other considerations
from the question of the validity of any rule.

Dias has emphasised that the effectiveness of a legislative

.medium is not a condition of its own "law quality" but only
a factor which influences Courts to accept and continue
accepting it. He further observed that a situation may be
supposed in the midst of a' revolution when the old order
has gone and no new order has effectively replaced it. In
such a lacuna the Court can continue to apply as "laws" the
enactments of the old order even though it is no longer
effective. The label "laws" attaches to whatever the Courts
are prepared to accept as such. Even if the old order is
ineffective and there is a new, effective order, the Courts
may still treat the old order as "legal" and the new as
"illegal" or simply "de factor". Not only is the legality of a
revolutionary regime independent of effectiveness, but it
also has jurisdictional (spatial) and temporal dimensions.
Thus, although the Rhodesian regime was eventually
accepted as legal by the Rhodesian Courts, British Courts
have still not done so. In Adams v. Adams (A. G. intervening)
((1970) 3 All E R 572) a British Court refused to recognise a
divorce decree pronounced by a Rhodesian Judge who had
not taken the oath under the 1961 Constitution. This shows
that legality depends .on the jurisdiction in which the matter
is considered, quite apart from effectiveness. The temporal
dimension is brought out by a decision of the Pakistan
Supreme Court in Jillani v. Government of Punjab (P L D
1972 S C 139) which rejected. effectiveness altogether as the
criterion of legality.

In conclusion, according to Dias the effectiveness of the

legislative authority is not a condition of the validity either
of "laws" or even of itself. It is a factor which in time induces
the Courts to accept such authority. Nor is it the only such
factor. Others are farce propaganda and packing the Bench
with Judges who will comply, all of which only reinforce the
contention that the legality of the law-constitutive medium
only comes about when the Courts accept, or are made to
accept it.

These are some of the formidable arguments levelled by

Dias, not merely at Kelsen, but at positivism in general.
Kelsen gave no criterion by which the minimum of
effectiveness is to be measured. All he maintained was that
the Grundnorm imparts validity as long as the "total legal
order" remains effective, or, as he later put it, "by and large"
effective. As to this it may be asked, in the first place, for
how long must effectiveness be maintained for the
requirement to be satisfied. Kelsen drew no distinction;
between effectiveness, which makes people obliged to obey,
and effectiveness which makes them feel under an
obligation to do so:

Dias maintains that Grundnorm is a very weak point in

Kelsen's theory. It does not apply in revolutionary situations,
in which case it ceases to be a "general theory" or, if general
it ceases to be true. In settled conditions it teaches nothing
new in revolutionary conditions, where guidance is needed,
it is useless, for the choice of a Grundnorm is not dictated
inflexibly by effectiveness but is a political decision, as
Kelsen himself admitted.

Lord Lloyd in his Introduction to Jurisprudence (Third

Edition), on page 269, in all fairness, while criticising Hans
Kelsen's theory, has at the same time paid compliments to
him and said that there is perhaps, no single writer in this
century who has made a more illuminating analysis of the
legal process than him, by his lucid exposition. But according
to Lord Lloyd the Basic norm is a very troublesome feature
of Kelsen's system. We are not clear what sort of norm this
really is, nor what it does, nor indeed, where and how to
find it. In his latest formulation he tells us that it is not
"positive", but is presupposed in juristic thinking and is
"meta-legal" only. Professor Goodhart was doubtful of the
value of an analysis which did not explain the existence of
the basic norm on which the whole system was founded.
According to Lord Lloyd it may be argued that Kelsen's
theory, being description of legal science, can only indicate
the role of the jurist and can in no way assist the Judge. This
would suggest that those Judges who relied upon Kelseri's
theory to solve past-revolution legal problems were
labouring under the self-deception that he would assist
them. The analysis of Kelsen's theory has raised some of the
difficulties inherent in' his basic norm. His theory is only
useful to the legal. scientist and not the Judge and only in a
residual case, and, further, that the kingpin of the whole
structure rests upon the shaky foundation of a loose concept
of "effectiveness''

Gustov Radbrach was a German thinker who had lived

through .the Nazi regime and reflected upon its evil
manifestations in the legal system. He was a protagonist of
the positivist doctrine until the Nazi tyranny, but he was
converted by his experience of the environments round him.
In 1944 a woman, wishing to be rid of her husband,
denounced him to the authorities for insulting remarks he
had made about Hitler while home on leave from the
German army. The wife was under no legal duty to report
his acts, though what he had said was apparently in violation
of statutes making it illegal to make statements detrimental
to the Government of the Third Reich or to impair by any
means the military defence of the German people. The
husband was arrested and sentenced to death, apparently
pursuant to these statutes, though he was not executed but
was sent to the front. In 1949 the wife was prosecuted in a
West German Court for an offence described as illegally
depriving a person of his freedom (rechtswidrige
Freiheitsbe-raubung). This was punishable as a crime under
the German Criminal Code of 1871 which had remained in
force continuously since its enactment. The wife pleaded
that her husband's imprisonment was pursuant to the Nazi
statutes and hence that she had committed no crime. The
Court of appeal to which the. case ultimately came held that
the wife was guilty of procuring the deprivation of her
husband's liberty by denouncing him to the German Courts,
even though he had been sentenced by a Court for having.
violated a statute, since, to quote the words of the Court,
the statute "was contrary to the sound conscience and sense
of justice of all human beings." This reasoning was followed
in many cases which have been hailed as a triumph of the
doctrines of natural law and as signalling the overthrow of
positivism. The bitter experiences in these cases have thus
made a great dent into -the Pure Theory of Law (See 71
Harward Law Review 591 at pages 618-619).

Similarly a number of authors in their articles in some of the

leading law journals (1970) 28 Cambridge Law Journal 75 by
Dias ; (1968) 26 Cambridge Law Journal 223 by Dias; 1971
Cambridge Law Journal 103 by Harris; 1963 Modern Law
Review 34 by Julius Stone; and .1967 Modern Law Review
1.57 by Erie have exposed the weaknesses in this theory.

In addition to these in Miss Asma Jillani v. The Government

of the Punjab this Court has held that 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. . He was propounding
a theory of law as a "niece jurists' proposition about law".
He did not lay down any legal norm or legal norms which are
"the daily concerns of Judges, legal practitioners or
administrators"

Moreover, as observed by my Lord, the Chief Justice, ours is

an ideological State of the Islamic Republic of Pakistan. Its
ideology is firmly rooted in the Objectives Resolution with
emphasis on Islamic laws and concept of I morality. In our
way of life we do not and cannot divorce morality from f
law. Therefore the Pure Theory of Law is not suited to the
genesis of this State. It has no place in our body politics and
is unacceptable to the Judges charged with the
administration of justice in this country.

In the light of the above discussion, before us Mr. A. K.

Brohi, learned counsel for the respondent, undertook in vain
to salvage Dosso's case after it had been effectively
overruled in Miss Asma Jillani's case by rejecting Kelsen's
Pure Theory of Law.

MARTIAL LAW AND NECESSITY

S. A. De Smith in his invaluable treatise on the
"Constitutional and Administrative Law" (Chapter 22) has
observed that when an unlawful assembly is proceeding to
the execution of its purpose, it constitutes a riot. If it goes
on to execute that purpose in a violent manner which
alarms a person of reasonable courage in the
neighbourhood, it constitutes a riot. Akin to riot is the
common-law offence of causing an affray by fighting or
threats of force giving rise to alarm in the neighbourhood.
Troops may be called in to disperse rioters in the last resort
they should normally act only under the direction of the
competent civil authorities, and the degree of force they use
must be proportionate to the evil to be averted.

In dealing with the problems of "National Emergencies"

(Chapter 23) the learned author further observed that the
military officer on the spot may have to make a snap
decision whether -to use force, and if so, how much, to quell
a not Judges and writers have insisted many times over that
soldiers are entitled, indeed obliged at common law, to use
all necessary force, including deadly violence in the last
resort, to disperse rioters who are doing serious and
extensive damages to property. But when riot passes into
rebellion or guerilla warfare, emphases shift and other
principles intrude. The civil power primarily responsible for
containing and suppressing an uprising must be the Govern-
ment in office: The military authorities will be obliged to act
in its support.

If the situation moves a stage farther and the civil

authorities become incapable of governing' because of
large-scale insurrection, powers to do whatever may be
needed to restore peace, may be handed over to (or
assumed by) the military authorities. This is a new situation,
different both in degree and kind. A state of Martial Law will
then exist and the powers of-the General' Officer
Commanding the Forces will, so it is usually thought,
become non-justiciable, and for the time being, absolute,
subject only to consultation with the civil power. According
to the learned author martial law has been aptly described
as "a peculiar system of legal relations" which arise in time
of civil war or insurrection, or, it may be added, invasion. It
is a state of affairs, not a settled body of rules, though rules
and orders will be promulgated and enforced by the military
authorities as they see fit.

Again Martial Law can be used to describe an entirely

different kind of situation-one where military officers
overthrow the legitimate Government, establish a new
regime and proclaim a state of Martial Law. The
phenomenon is all too familiar in many countries. It has not
arisen in Britain in modern times and the constitutional law
books of that country are therefore, silent on its legal
consequences. Briefly, one can say that the Judges and
officials are not obliged to recognize the validity of such a
proclamation, any more than they are obliged accept any
other revolutionary coup d'etat, but that if they defy the
mailed fist, they cannot expect to retain office for long. If
they do recognize the suppression of the old order as valid,
successful revolution has begotten its own legality.
In this connection the learned author has further observed
that a state of Martial Law may be introduced by or without
a proclamation. A proclamation purporting to introduce a
state of Martial Law is of no legal effect in itself ; Martial Law
is justified only by paramount necessity. If the ordinary
Courts are still sitting, it seems that they have jurisdiction to
determine whether "a state of war" (not necessarily war in
the international sense, but a state of affairs requiring
military pacification by the imposition of Martial Law) exists
in an area where they normally have jurisdiction. In
determining this question they will give heavy weight to the
opinion of the local military commander, but his opinion is
not binding on them. If they decide that a `state of war' does
exist, then (according to the present weight of legal opinion)
they should decline to review the legality of anything done
by the military authorities in the purported discharge of
military responsibilities till, in their independent judgment,
the `state of war' has terminated.

In the case of D. F. Marais v. The General Officer

Commanding the Lines of Communication and the
Attorney-General of the Colony 1902 A C 109, in South
Africa an application was made on behalf of Marais, a
civilian subject of the Crown, for his immediate release from
military custody, on the ground that his arrest and
imprisonment were in violation of the fundamental liberties
to which subjects of His Majesty were entitled. But his
application was dismissed by the Supreme Court of the Cape
of Good Hope, inter alia, relying on an affidavit of the gaoler
concerned to the effect that be was detained by. an order of
the military authorities for contravening certain Martial Law
Regulation though owing to military exigencies he was not
prepared at the time to disclose the charges against him.
The Privy Council refused the petition for special leave to
appeal from the order of the Supreme Court with the
observations that :- .

"The truth is that no doubt has ever existed that where war
actually prevails the ordinary Courts have no jurisdiction
over the action of the military authorities.

Doubtless cases of difficulty arise when the fact of a state of

rebellion or insurrection is not clearly established.

It may often be a question whether a mere riot, or

disturbance neither so serious nor so extensive as really to
amount to a war at all has not been treated with an
excessive severity, and whether the intervention of the
military force was necessary but once let the fact of actual
war be established, and there is an universal consensus of
opinion that the civil Courts have no jurisdiction to call in
question the propriety of the action of military authorities."

Coke, Rolle and Hale were of the opinion that time of peace
is when the civil Courts are open, and that when they are
closed it is time of war. The decision in Marais's case,
however, shows that this test is not conclusive and that
existence of a state of war in a given district is compatible
with the continued functioning for some purposes of the
civil Courts within the district. This decision gave rise to four
articles on martial law in (1902). 18 Law Quarterly Review
117; 113, 143 & 152. H. Erie Richards in his article on pages
133/142 has mentioned that this decision has met with
some criticism even from those whose legal vision is not
coloured by their political sympathies. In the context of the
above findings the learned author remarked that "it must be
left to Courts to determine whether any particular act be or
be not in excess of necessity of the occasion in question in
each case." He further observed that in times of emergency,
falling short of war, the Court may decide "whether there
was sufficient necessity to justify any suppression of the
ordinary law and indeed there would be no security for the
subject at any time if it was left to the uncontrolled
discretion of the military to take such action at their
pleasure. But when once war is declared and is raging in the
country, that question is no longer open to doubts that it is
then necessary to interfere with the ordinary law to some
extent, . . . . ."

The learned author, in offering his further comments on the

judgment in Marais's case observed that it has been
contended that the existence of war in the view of the law
does not depend on the actual fact of whether war is raging
in the country or not, but is to be determined by the fact of
whether the Courts continue to sit ; an artificial rule which
does not commend itself, apart from authority, to reason.
The necessity for taking action which infringes on rights of
property or liberty cannot depend on the fact that the
Courts continue or do not continue to sit it depends on the
necessity created by the presence of an enemy in the
country. The military indeed can at their will prevent or
allow the continuance of the sittings of the Courts. The real
test is the necessity of the occasion in each case. In summing
up the learned author remarked that "War is self-evident,
and the fact that the Courts may continue to sit cannot
prevent the existence of war."

According to another article on "the case of Marais"

contributed by Cyril Dodd (pages 143-151) martial law arises
from the State necessity, and is justified at the, common law
by necessity, and by necessity alone-a necessity which the
Courts may at- any time inquire into, so far at any rate as
they reasonably can without injury to the State arising from
the disclosure of matters contrary to the public interest and
endangering the public safety. The learned author observed
that in Marais's case when the petition came before the
Privy Council the chief argument, indeed the only argument
really relied on, was that there was a fixed principle that, if
the ordinary Courts were open, civilians must be dealt with
by them if charged with offences, and not by military
persons or tribunals ; that a place where the Courts open
crust be regarded at a place in which there is peace, and
that when the Court are open it is `time of peace' for all legal
purposes and in all Courts of law, This contention. in his
opinion was undoubtedly supported by a considerable show
of authority, and would appear in more ancient times to
have been generally held as a true statement of the law. But
this supposition was based on fiction rather than on reality.
1n the opinion of the learned author it was not to be
expected that a Committee of the Privy Council should feel
bound by any such general rule to the extent of being
compelled to hold, contrary- to actual fact, that war did not
exist, simply because where the war in fact existed the
Courts were sitting. It distinctly puts an end to the ancient
rule, that because for some purposes the Courts are open at
a place, that place must .be held to be one where peace
exists, no matter what the actual fact may be. According to
the learned author in the case of Marais even the limited
proposition that the authorities are not responsible to the
Courts sitting during the war. would appear too wide. It
would seem to depend upon the question of whether the
Courts are able to sit for all purposes, and are allowed by the
military power to do, so, and upon whether the matter is
one they can, without danger to public safety and the
proper prosecution of the war, investigate and deal with.

Likewise Frederick Pollock in his article (pages 152-158) of

the Law Quarterly . Review has commented on the Privy
Council judgment in Marais's case and in his opinion the only
point decided then was that the absence of visible disorders
and the continued sitting of Courts are not conclusive
evidence of state of peace. In the fourth article (pages 117-7
32) W. S. Holdsworth, on the authority of Cockburn, C: J.
observed that martial law of the kind, as a distinct code of
rules, does not exist. It is merely the application of the
common law principle "that life may be protected and crime
prevented by the immediate application of any amount of
force which, under the circumstances may be necessary." It
allows an amount of force exactly proportionate to the
necessities of the case. This is the view most strongly
supported, especially by the more recent authorities.

The American views on the subject are contained in a copy

of a letter of Pennsylvania Assembly to Governor Robert
Marris, November 11, 1755 under the heading "The National
Security Interest and Civil Liberties" published in (1971-72)
85 Harward Law Review, 1133/1326. In this a separate
section is devoted to the subject . of "The Exercise of
Emergency Powers" to cope with disorders of sufficient
magnitude and intensity assuming national importance and
threatening the functioning of the Government. In such
cases safeguards of judicial review are necessary as a check
against any abuse of power. But in this connection the
standard laid down by the Supreme Court of America for
reviewing the use of emergency measures has varied widely.
In Ex Parte Milligan ((1866) 71 U S 2) which involved
emergency measures taken by President Lincoln during the
Civil War, the Court verged on taking the extreme view that'
Government action in emergencies is subject to the same
constitutional limitations as are actions taken in normal
times. But in contrast to this, the Supreme Court appears to
have gone to the other extreme in Moyer v. Peabody ((1909)
212 U S 78), a 1909 case reviewing actions taken by a State
Governor pursuant to a proclamation of martial law during a
violent labour dispute. The Court seemed to view the choice
of what particular measures to take during an emergency as
an exercise of political power with which the Courts should
not interfere as long, at least, as the choice was made in
good faith. Moreover, the Court held "that the Governor's
declaration that a state of insurrection existed is conclusive
of the fact." Thus, Moyer came to stand for the proposition
that the executive has nearly complete discretion in its
exercise of emergency powers, both with respect to.
declaring the emergency and to choosing the means of
meeting it.
This stance, however, granted an excessive degree of
latitude to the executive and was ultimately replaced in the
case of Sterling v. Constantin (1932) 287 U S 378, by a
standard of review that scrutinized the Government
response to find a "direct relation" between the "measure
taken and the goal of restoring order." In Sterling the
Governor of Texas bad declared martial law in order to have
the militia impose a production limit which a Federal Court
bad enjoined the State's regulatory commission from
imposing. The emergency claim was based upon an alleged
but unsubstantiated fear that the local populace would rise
up in order to stop the plunder of the vicinity's oil resources.
In the face of this claim the Court refused to follow Moyer,
first distinguishing between the conclusiveness of the
executive's declaration of emergency and its choice of
measures, and then subjecting the latter to a "direct relation
test." Similarly, in Korematsu v. United States ((1944) 323 U
S 214 (223-224)) and Hirabayashi v. United States ((1943)
320 U S 81 (95)) the most recent cases in which the Supreme
Court decided the constitutionality of emergency measures
taken by the Federal Government during wartime, the Court
undertook an independent, albeit restrained, inquiry as to
whether there was a reasonable basis in fact for the
conclusion that the measures were "necessary" to meet the
particular dangers posed by the emergency situation.
However, on facts in these two cases the Court concluded
that the Government's fear of espionage and sabotage by
persons of Japanese ancestry was reasonable and therefore,
upheld the curfew directed against them and an executive
order passed against them excluding them from the West
Coast.
In the above-mentioned letter it is observed that to prevent
the abuse of emergency powers, Courts must review both
whether an emergency existed, and, more important
whether the measures taken were necessary to restore
order. "The best standard to adopt would be a strict
standard of necessity, which would require that there not be
available to the Government alternative means of coping
with the emergency that were as effective as the measures
employed but less restrictive of individual liberties". The
less-restrictive alternative analysis is in a sense inherent in
any judicial review of Government actions on the basis of
their reasonableness, since the reasonableness of a measure
necessarily depends on the alternatives available. However,
the proposed application of less-restrictive-alternative
analysis is broader, for it implies that whenever a less
restrictive alternative of equal effectiveness can be shown,
the measure taken will be invalidated. (See pages 1294-1297
of the Report).

In this connection (on pages 1321-22) it is observed that

emergency situations, whether characterized primarily by
mass public disturbances or by guerilla-like violence, can
differ greatly as to their magnitude. At the most severe
extreme, the Government might be faced with a rebellion so
widespread and intense that it was unable to carry out its
normal functions through civilian institutions. It might then
be necessary to govern by martial law. Although there has
been much confusion as to the meaning of this term, it is
clear that martial law is not "law" at all in the sense of a
body of rules, but rather refers to the way in - which
governmental power may be exercised. Commentators
generally define martial law as the use of military forces to
carry on the functions of civil Government, carefully
distinguishing it from. the mere use of the military as an aid
to the civilian Government. Although Courts still occasionally
use language suggesting that a declaration of martial law
results in the complete abandonment of constitutional
safeguards against actions taken by the military, the
"direction relation" test of Sterling v. Constantin was
formulated with reference to and applied to overturn
emergency measures taken by the military pursuant to an
executive declaration of martial law. There is. no reason to
believe, therefore, that judicial review of Government
actions in an emergency should depend in any way on
whether there had been a declaration of martial law or on
whether the emergency measures were carried out by
military or civilian authorities. In either case the standard
should be the necessity of the measure to restore order.

The learned author of "the Constitutional and Administrative

laws" has also discussed the subject of the "Ultimate
Authority in Constitutional law" (Chapter 3) in its historical
background. This presents a very useful, absorbing and
greatly informative study of the problems engaging our
attention. I cannot resist in quoting here from him in
extenso. He observes that a written constitution is regarded
as the primary source of legal authority within a State. But
then what is it that confers this legitimating quality on the
constitution ?, he asks and in his opinion this question
produces some convoluted answers. In the large majority of
independent States,-in Australia there has been, at one time
or another, a breach of legal continuity, and a constitution
has been adopted or changed in a manner unauthorized by
the pre-existing legal order. This is already true of a high
proportion of the African States which have become
independent during the last decade or so. Since
independence they have had revolutions and coups d'etate ;
often the constitutional instrument has itself been
abrogated and replaced, or suspended and modified, in a
manner precluded by the independence constitution. And a
few countries have deliberately chosen to adopt a new
constitution peacefully but in a manner unauthorised by the
pre-existing constitution. This is an assertion of legal
nationalism, of what is called `constitutional autochthony,
designed to demonstrate that the authority of the
constitution is rooted in native soil, not derived from an
imperial predecessor. Such a course has been followed in
Eire (the Republic of Ireland), India and Sri Lanka (Ceylon). A
constitution is adopted by a Constituent Assembly in the
name of people, or presented to the people for their
approval it will not receive the royal assent like normal
constitutional amendments.

Take again the constitution of the United States of America.

Since its adoption in 1787 it has remained intact, apart from
amendments duly made in terms of the Constitution. But
was the Constitution valid in the first place, and if so, why ?
In 1776 the Thirteen Colonies had unlawfully 'declared their
independence of Britain, and had repudiated the
sovereignty of the United Kingdom Parliament. `We, the
People of the United States', proceed to `ordain and
establish a constitution'. In fact it was formulated at a
convention consisting of delegates from the several- States
and then ratified by the Congress. The name of the
`sovereign' People was invoked to confer upon the constitu-
tion moral authority and binding force.

The learned author says that the vague concept that

ultimate `sovereignty' resides in the `people' is widely
acceptable because of its political overtones. Even where a
constitution has been overturned from above or below by
manifestly illegitimate means, it is commonplace for the de
facto holders of power to assert that they derive their
mandate from the people, because it is awkward to be
stigmatized as an undemocratic usurper. And by producing a
constitution approved. by or on behalf of the people, the
accolade of legitimacy is achieved.

It is one thing to say that Government should rest on the

consent of the governed ; it is another thing to proclaim that
a Constitution has acquired the force of supreme law merely
because it has obtained the approval of an irregularly
convened Constituent Assembly or of a majority of the
electorate or both. Yet to assert that all constitutions (or
constitutional amendments) procured in a manner
inconsistent with the pre-existing legal order are legally
invalid will land one in a morass of absurd and insoluble
difficulties. If the Constitution of the United States is a
nullity, then presumably only the United Kingdom can
validate (with retroactive effect) the millions of
governmental measures and judicial decisions taken in that
country since Independence. This is plainly ridiculous, for
nobody doubts that the United States became an
independent State in international law before the end of the
eighteenth century. In any case, whence did the United
Kingdom Parliament derive its omni-competence ? In July
1688 James II dissolved his Parliament. In December he fled
the country, having dropped the Great Seal of the Realm in
the Thames a few days earlier. William of Orange, having
reached London, met groups of peers, former members of
Parliament and other notables ; they advised him that
elections should be held in the boroughs and counties. The
Convention of Lords and Commons met in January 1689, and
next month offered the Crown to William and Mary jointly,
subject to conditions set out in a Declaration of Rights. The
offer having been accepted, the Convention passed an Act
asserting that it was Parliament, acid then enacted the Bill of
Rights, incorporating the Declaration of Rights. Clearly the
Convention `Parliament' has been irregularly summoned ; its
affirmation of its own legal authority carried the matter no
farther ; there had been no King from December 1688
(assuming that James It was deemed to have abdicated or to
have forfeited the Crown) till February 1689 ; William III had
no hereditary legal title to the throne and therefore had no
authority to assent to bills. Has every purported Act of
Parliament since 1688 been a nullity ? Is a Stuart still the
rightful King ?

Once questions such as these are asked, one must

acknowledge that in. certain circumstances a breach of legal
continuity, be it peaceful or accompanied by coercion and
violence, may have to be treated as superseding the
constitutional and legal order and replacing it by a new one.
Legal theorists have no option but to accommodate their
concepts to the facts of political life.

These are some of the perplexing questions that have

buffled the legal theorists. One of them Hans Kelsen
advanced his Pure Theory of- Law which has already been
rejected by us as unacceptable to the norms of our own
country. But I find that the principles of State necessity and
the maxim "Salus populi suprema lex" is fully attracted to
the peculiar facts and circumstances of this case as a
validating factor.

According to S. A. de Smith the principle of necessity,

rendering lawful what would otherwise be unlawful, is not
unknown to English law ; there is defence of necessity (albeit
of uncertain scope) in criminal law, and in constitutional law
the application of martial law is but an extended application
of this concept. But the necessity must be proportionate to
the evil to be) averted, and acceptance of the principle does
not normally imply total abdication from judicial review or
acquiescence in the supersession of the legal order ; it is
essentially a transient phenomenon. State necessity has
been judicially accepted in recent years as a legal
justification for ostensibly unconstitutional action to fill a
vacuum arising within the constitutional order in Pakistan,
Cyprus, Rhodesia and Nigeria. To this extent it has been
recognised as an implied exception to the letter of the
constitution. And perhaps it can be stretched far enough to
bridge the gap between the old legal order and its
successor."
In these circumstances and for these additional and
supplementary reasons I have agreed with my Lord, the
Chief Justice on the facts and law, as well as the conclusions
formulated by him.

DORAB PATEL, J.--I have had the advantage of reading the

judgment proposed to be delivered by my Lord the Chief
Justice. I respectfully agree with it and would further
observe that in my humble opinion the principle laid down
by the Federal Court in the Reference by His Excellency The
Governor-General PLD1955FC435, will have to be followed
in resolving the impasse created by the constitutional
break-down.

QAISAR KHAN, J.--After going through the very elaborate,

illuminating and scholarly judgment of my Lord the Chief
Justice proposed to be delivered in this case, it is with the
greatest respect that I have to state that though 1 agree
with my Lord the Chief Justice that (he petition be dismissed
but I have arrived at the conclusion on quite different
grounds and I shall, therefore, record my own judgment. The
facts and circumstances leading to the filing of this petition
under Article 184(3) of the Constitution of the Islamic
Republic of Pakistan, 1971 need not be reiterated as these
have already been given in great detail in the proposed
judgment of my Lord the Chief Justice.

In my opinion the main point for determination in this case

is as to whether this Court has the jurisdiction to entertain
and adjudicate upon the petition in view of the Proclamation
of the 5th of July 1977 and the Laws (Continuance in Force)
Order, 1977 of the same date.

After hearing very learned and lengthy arguments of the

learned counsel for the parties and the learned
Attorney-General I have come to the conclusion that this
Court has no jurisdiction in the matter. My reasons for
coming to this conclusion are few and simple.

The Constitution of the Islamic Republic of Pakistan was the

basic norm of the Country which is also described as the
grundnorm, the apex norm or the total Legal Order. This
Court was the creation of the said Constitution and
jurisdiction had also been conferred on it by the said
Constitution. The validity or invalidity of any and every
action was tested by the Courts with reference to the
Constitution. It may, however, be mentioned here that the
provisions of the said Constitution themselves could not be
questioned by the Courts. The Courts could not say that such
and such a provision of the Constitution was good and such
and such bad or that such and such a provision should have
been there and such and such should not have been there.

At some stage in the arguments it was suggested that the

Resolution of March 1949 was the grundnorm in Pakistan
and action should be tested keeping that as a touchstone.
There is, however, no force in this contention as no body in
Islam is above law but under our Constitution of 1973 the
President and the Governors had been placed above law and
they were not answerable to any Court of law nor could they
be tried in any Court. The offence of murder is
compoundable according to the Holy Qur'an but we in
Courts could not accept compromise in murder cases. The
resolution was the wish and ultimate aim for the realisation
of the Islamic order but it was not the grundnorm in
Pakistan. It was also held so by this Court in the case of
Zla-ur-Rahman PLD1973SC49.

It is common knowledge and does not require any jurist to

be quoted in its support that a Constitution -or the basic
norm could be annulled, abrogated, destroyed or suspended
in two way, one by a Constitutional act, that is to say, by the
method provided for in the Constitution for changing or
replacing it and the other by an un-Constitutional act, say
revolution or; coup d'etat, which is known as
extra-Constitutional act. In the instant case the Constitution
of 1973 was put in abeyance, that is to say, suppressed for)
the time being by the Chief of the Army Staff by an
extra-Constitutional act) of issuing a Proclamation on the 5th
of July 1977 declaring himself as the Chief Martial Law
Administrator. For the running of the Country the Chief
Martial Law Administrator who had assumed all powers
under the Proclamation issued the Laws (Continuance in
Force) Order the same day i.e., 5th of July 1977.

Now the validity or invalidity of this action could not be

tested on the basis of the Constitution of 1973 as it was no
longer there having been suppressed and there was no
other superior norm on the basis of which it could be tested.
such an action, according to some jurists as Mr. Brohi puts it,
is called meta-legal. For judging such a situation we have
two authorities of this Court in the field, that of Dosso P L D
1958 S C (Pak.) 531, and Asma Jillani P L D 1972 S C 139.
Dosso's case by which the new order could be legitimised
cannot be applied as it has been overruled by the Asma's
case. Asma Jillani's case does not apply in the present case a
the facts and circumstances of this take-over are quite
different from the facts and circumstances of the then
take-over. In the present case under the circumstances
prevailing in the country of which we can take judicial not
the present take-over was quite justified for saving the State
from total destruction and the Chief of the Army Staff under
the circumstances could not be dubbed as a usurper.

Now what is to be done .in such a case. Here I agree with

Mr. Brohi that in such a situation the Court has to determine
certain facts which are even more basic than jurisdictional
facts. These are facts which may be termed as Constitutional
facts. These facts relate to the existence of the Legal Order
within the framework by which the Court itself exists and
functions. Jurisdictional facts only relate to the jurisdiction
of the Court but Constitutional facts relate to the legal
structure within which that jurisdiction is located. The
inquiry as to Constitutional facts is factual and not a legal
inquiry. The Court has to find as a matter of fact as to what
Legal Order is in operation in the country.

There are several indicia which furnish clues to the existence

of any particular Legal Order. The most. important of these
relate to the aegises under which the three principal organs
of the State function. These organs are the Legislature, the
executive and the judiciary. Let us examine the position of
each in relation to the present situation.
The National Assembly constituted under the 1973
Constitution is evidently no longer in existence. It does not
even purport to exist. There is no legislative body in
existence in Pakistan today which can claim that it is a
Legislature within the meaning of that term used in the 1973
Constitution. The executive i.e., the Government servants
have accepted the new Legal Order and are working under
it. Similarly the People's Party's Government has ceased to
exist as a matter of fact. The members who constituted that
Government did not even profess to be exercising power
and authority in Pakistan today. On the other hand almost
all of them including the former Prime Minister have taken
an oath in connection with election under the new Legal
Order thereby admitting its factual existence. The same is
the position of the judiciary. Judges had taken oath under
the Constitution of 1973 and there was no provision in the
said Constitution for a second oath to be taken by Judges.
However, under the President's Post Proclamation Order 9
of 1977 we were directed to take a new oath or to quit. As a
result of the said directive we took the new oath in which
there was no mention of the Constitution of 1973.

This oath was prescribed by a Presidential Order not in the

exercise of powers under the. Constitution of 1973 but in
exercise of powers under the Proclamation and the Laws
(Continuance in Force) Order of the 5th of July 1977.
Incidentally it may be mentioned here that according to
Article 2, sub-Article (3) of this Order the President acts only
on the advice of the Chief Martial Law Administrator. Now
by taking this oath we have conceded the de facto existence
of the new Legal Order. Furthermore, amendment was also
brought about in the suppressed Constitution which we
accepted as valid. The existence of the new Legal Order as a
fact has therefore been accepted by all and since it is
admittedly effectual beyond doubt for the time being it is
therefore to be accepted as the de facto new Legal Order for
the time being. So far as I have been able to understand
effectualness is the only touch stone on the basis of which
recognition to a de facto Government could be accorded by
municipal Courts and support for this can be had from
STANFORD LAW REVIEW, VOL. 17 PROFESSOR STONE AND
THE PURE THEORY OF LAW (Page 1139). Since the Order is
of a supra-Constitutional nature all questions are now to be
answered with reference to it.

The assertion that the Courts were functioning under the old
Constitution which has been revived by the Laws
(Continuance in Force) Order is fallacious. When by the
Proclamation the Constitution was put in abeyance the
Courts automatically ceased to exist. They started
functioning again only by the force of the Laws (Continuance
in Force) Order and not by virtue of the old Constitution. The
Laws (Continuance in Force) Order nowhere lays down that
the Constitution has been revived. As a matter of fact
section 5 of it which is reproduced below clearly lays down
that it is still in abeyance:

"Notwithstanding the abeyance of the provisions of the

Constitution subject to any order of the President or
Regulation made by the Chief Martial Law Administrator all
laws other than the Constitution and all Ordinances,
Orders-in-Council, Orders made by the President, Rules,
Bye-Laws, Regulations, Notifications and other legal
instruments inforce in Pakistan or any part thereof or having
extra-territorial validity shall so far as may be and with such
adaptation as the President may see fit may continue in
force until altered, amended or repealed by competent
authority."

The reference in the Order to the provision of the

Constitution of 1973 was only an easy and expeditious way
of devising a new Legal Order. Since the Courts including this
Court were revived by the Laws (Continuance in Force)
Order and continued to work under its authority, they
therefore derived their jurisdiction also from the said Order.
For example, if after the issuance of the Proclamation the
Chief Martial Law Administrator bad not issued the Laws
(Continuance in Force) Order and had started ruling by
decrees through his officers then where would have been
this Court and what jurisdiction it would have had.

Otherwise too allegiance is always due to the de facto

Government for it is this Government which can provide
protection to the citizens and allegiance to the State
imposes as one of its most important duty obedience to the
laws of the sovereign power for the time being within the
State. The municipal Courts have always to enforce the laws
of the de facto Government as it is such a Government
which can enact law, can appoint Judges and can enforce
the execution of law.
In this connection the following passages from the
Rhodesian case which was quoted at the Bar and which are
based on the views of the various authorities are worth
perusal :-

"A municipal Court recognizes the legality of the only

law-making and law-enforcing Government functioning "for
the time being" within the State. It cannot do more and, in
particular, it is not possible for a municipal Court to ascribe
to Governments under which it functions. different degrees
of legality. From the point of view of a municipal Court a
Government either is or is not lawful. 1 am satisfied that the
present Government is the only existing law-making and
law-enforcing Government within the State of Rhodesia and
if I am to carry on my functions as a Judge I must enforce
laws passed in accordance with the 1965 Constitution. To do
so is in accordance with, and not in breach of, my allegiance
to the State of Rhodesia. It is important, in this .connection,
to remember that in law it is the State and not a
Government within a State which has the quality of
"perpetual continuance". Allegiance is owed to the State as
a legal entity with perpetual existence. Obedience to the
laws of the Government "for the time being," and service
under the Government "for the time being," are
requirements of the allegiance owed to the State and it is
only in a loose and inexact sense that it is possible to speak
of allegiance being owed to a particular Government." (Page
160).

"Judicial power presupposes an established Government

capable of enacting laws and enforcing their execution, and
of appointing Judges to expound and administer them. The
acceptance of the judicial office is a recognition of the
authority of the Government from which .it is derived. And if
the authority of that Government is annulled and
overthrown; the power of its Courts and other officers is
annulled with it. And if a State Court should enter

upon the inquiry proposed in this case, and should come to

the conclusion that the Government under which it acted
had been put aside and displaced by an opposing
Government it would cease to be a Court, and be incapable
of pronouncing a judicial decision upon the question it
undertook to try. If it decides at all as a Court, it necessarily
affirms the existence and authority of the Government
under which it is exercising judicial power." (Page 156).

"The English law on this aspect is summed up pithily by

Hobbes in his statement (adopted by. Austin and cited
above) that, "the legislator is he not by whose authority the
law was first made but by whose authority it continues to be
law". And this is the effect of the definition of "sovereign" in
the Interpretation Act, 1889. There is no difference in law
between a written constitution and an unwritten
constitution and under English constitutional law respect is
paid not to a constitution as such but to the Government
which by its authority gives the constitution the force of
law." (Page 155).

"The lesson to be gleaned from the history of English law is

that the Judges should. not allow themselves to become
embroiled in political controversy and, in particular, should
not take part in revolutionary or counter, revolutionary
activity. If a Judge believes that a situation has arisen which
in all conscience compels him to exercise the "sacred right"
of revolution or counter-revolution he should leave the
Bench and not seek to use his position on it to further his
revolutionary or counter-revolutionary designs. The more
unsettled the times and the greater the tendency towards
the disintegration of established institutions, the more
important it is that the Court should proceed with the vital,
albeit unspectacular, task of maintaining law and order and
by so doing act as a stabilizing force within the community.
This objective can only be achieved if the acts of a
Government "for the time being" within the State are given
the force of law. Under English law Judges, in common with
all other citizens, owe allegiance to the State and this allegi-
ance involves obedience to and service under the
Government `for the time being" within the State." (Page
154).

"The early history of England and the English law relating to

the allegiance due to a de facto sovereign explain in large
measure the view strongly adhered to by all English Judges
that the judiciary should not meddle in politics." (Page 151).

"This allegiance to Rhodesia imposes a duty of obedience to

the laws which continue in force under the authority of the
de facto Government, as well as in laws passed by it;
provided, of course, these are passed in accordance with the
de facto constitution." (Page 149).
"It is not essential, however, to resolve the dispute between
Hale and Black-stone on the one hand, and Hawkins and
Foster on the other for the purpose of deciding the
fundamental constitutional issue in this case which is
whether the laws of a Government `for the time being", that
is, of a de facto Government, must be obeyed. On this
aspect there is no disagreement at all between English
jurists." (Page 144).

"A sharp distinction is drawn in law between persons who

set up a de facto Government by revolution and persons
who, taking no part in the revolution, obey the laws of the
de facto Government in pursuance of the duty of allegiance
owed to the State. If obedience to the laws of a de facto
Government were not enjoined by the law, anarchy would
be likely to ensue. In a choice between anarchy and order
the law wisely makes a realistic and sensible choice of
order." (Page 129). .

"There are a number of reasons for the unanimous

acceptance by English jurists of a duty to obey the laws of a
sovereign power established within the State by revolution:

(i) First and foremost among these is the fundamental

concept that allegiance is due in return for actual .
protection. The corollary of this is that allegiance is not due
to a sovereign power which, while claiming the theoretical
right to protect, fails to afford protection.

(ii) Secondly, and most importantly, there is the need in the

interests of the State and its people to ensure the continuity
of the law and avoid the anarchy which would result from a
legal vacuum.

(iii) A third reason, refreshingly free from cant and

hypocrisy, is the appreciation by jurists that because
Governments without exception have an extra-legal origin,
Courts exercising jurisdiction within a State must, if they are
to function at all, obey the laws of the Government `for the
time being". If a Court of law anywhere in the world were to
insist that only the laws of a Government with a legal origin
may be obeyed and enforced, it would not be able to
function because there is no such Government. The feature
which distinguishes one Government from another is not
that some have an extra-legal and others a legal origin but
simply the variation in the length of time separating all
existing Governments from their extra-legal origin. Although
Government "for the time being" within a State shares with
all other Governments the taint of extra-legal origin it has
the obvious merit of being the only effective law-making and
law-enforcing body within the State. To refuse to obey the
laws of such a Government is to take not a legal but a
revolutionary or a counter-revolutionary stand." (Page 121).

"A municipal Court is concerned not with the question of

whether the State has been or should be accepted into the
international community, but simply with the existence or
non-existence of a law-making and law-enforcing
Government within the territory in which it exercises
jurisdiction.". (Page 110).
"My approach to the position of the Judges and of the High
Court and, indeed, to these cases as a whole, is a "positivist"
approach; because I think that in the situation which exists
in Rhodesia today what "is" or what "is not" the law can only
be decided on the basis of accepting things as they actually
"are" and not simply as they "ought to be". (Page 47).

"It seems to me that at any one time in any one place there
can only be one correct law. That law cannot vary with the
political views of the individual Judge who "declares" it. This,
of course, is, by no means the same thing as saying that the
Judge, having declared the law as he finds it to be, or even
before so declaring, must necessarily remain in office and
apply that law. Here his personal views may play a part;
because in certain circumstances the Judge may decide that
rather than continue as a Judge and apply such law he will
go. So long, however, as he continues to sit as a Judge he
must declare the law as it "is", and not as it "was", or as
what he thinks it "ought" to be." (Page 48).

"If the entire Constitution under which a Court is created

disappears or is completely suspended, the Court created
under it must also disappear or be suspended alongwith the
Constitution. A revolutionary Government cannot. be held
to be a de facto Government (in the sense in which I have
used the words) unless the old Constitution is at least
entirely suspended. This I consider to be the case in
Rhodesia today, because as a matter of political reality no
writ of any Government purporting to govern under the
1.961 Constitution runs in Rhodesia. What, then, is the
position of this Court at the present time? Strange as the
conception might be, it cannot be said that the Court owes
its present existence to or derives its present authority from
the old 1961 Constitution. It owes its existence to and
derives its authority today from the fact that the present de
facto Government which is to full control of the Government
of the country, knowing that the Court as such has not
"joined the revolution", has nonetheless permitted it to
continue and exercise its functions as a Court, and has
authorized its public officials to enforce the Court's
judgments and orders. The orders of the High Court today
are not enforced by any remnant of a Government
governing under the 1961 Constitution. They are enforced
by the officials of the present de facto Government." (Page
52).

"In these circumstances it seems to me that the Court can

only be regarded as deriving its authority from the fact that
the present de facto Government allows it to function and
allows its officials to enforce its orders." (Page 55).

From the above with which I fully agree it is abundantly clear

that this Court derives its jurisdiction from the Laws
(Continuance in Force) Order and that it has to accept and
enforce law of the de facto Government for the time being,
Courts have always to see that conflict between the Court
and the State is avoided even if the Government be a de
facto one. If we hold that on the basis of legality the new
legal order then this Court would be signing down death
warrant for then there would be no Government at all. For
argument sake if the Judges do not rely on the new norms
then what norms are available for them to proceed with. In
a revolutionary situation like the present one they have
either to quit or to accept the new norms.

The mere fact that according to the new Legal Order the
jurisdiction of this Court has been curtailed somewhat is no
ground for questioning the validity of the order. Even under
the Constitution of 1973 the jurisdiction of the superior
Courts could be curtailed and had in fact been curtailed a
number of times by a number of amendments in the
Constitution. Could not an amendment be validly made in
the Constitution of 1973 for deleting clause (3) of Article 184
altogether. Could then it be asserted that our judicial power
which could not be taken away had been taken away.
Judicial power is quite different from jurisdiction. The
judicial power always rests in Courts and that has not been
taken away by the new Legal Order. It has however now to
be exercised within the framework of the new Legal Order.

So far as the doctrine of necessity is concerned it is not an

independent legal system. It is always an integral part of the
framework of a total Legal Order. When there is no
provision in the total Legal Order for dealing with a
particular situations then the doctrine of necessity is
resorted to. The situation in Pakistan on the; 4th of July
1977, was such that there was total breakdown of law and
order and a situation had arisen for which the Constitution.
of 197 3 had no provision to deal with. The Chief of the
Army Staff, therefore, resorted to the doctrine of necessity
and issued the Proclamation of the 5th of July suspending
the Constitution and proclaiming himself as Chief Martial
Law Administrator. Now when by the Proclamation the
Constitution was suspended the doctrine of necessity
automatically got suspended with it and was not thereafter
available for controlling the Martial Law or the actions to be
taken under it. On the issuance of the Laws (Continuance in
Force) Order a new Legal Order came into being and the
doctrine of necessity again automatically reappeared with it,
but within the framework of the new Legal Order. In future
if no provision can be found for dealing with z situation that
might arise under the new Legal Order then the doctrine of
necessity can again be resorted to. But so long as there was
a provision in the new. Legal Order for dealing with a case or
situation the doctrine of necessity could) not be resorted to.
Any action of the .Martial Law authorities which is taken) in
consequence of any Martial Law Regulation or Martial Law
Order could not, therefore, be challenged or questioned on
the doctrine of necessity.

All the actions of the de facto Government can be tested

only when the said Government comes to' an end and the
old Legal Order is revived. In` that case the action of the
Martial law authorities would be tested on the) basis of the
old Legal Order. In this connection reference can be made
to, Salmond on Jurisprudence, 11th Edition, page 25,
relevant para. from which is reproduced below :-

"The formal establishment of such, a system of military

Government and justice in time of internal war or rebellion
is commonly known as the proclamation of martial law. With
the acts of the military authorities done in pursuance of such
a system the civil Courts of law will not concern themselves
in time of war."
Reference may also be made to the authority reported in P L
D 1953 Lah. 528. The following passage from this authority is
worth perusal;--

"But so long as Martial Law lasts such orders cannot form

justiciable issues before the civil Courts, not because the civil
Courts have no jurisdiction but because their jurisdiction can
at any time be ended by show or use of force by the military.
Once, however, Martial Law is lifted, the threat to the
existence of the Civil Courts disappears and they can then
not only function in a normal way but also call in question
the acts of the military whose only defence an either be the
right of private defence or the right disperse unlawful
assembly or some indemnity legislation."

This observation was made despite the fact that in the case
in question no new Legal Order had at all been established.
The above would therefore show that during the
continuance of Martial Law the action of the Martial Law
authorities could not be questioned in civil Courts.

The argument that a decision holding the action of the

Martial Law authority immune from judicial scrutiny by
Courts would encourage revolutions and coups d’etat has no
substance in it as revolutions and coups d'etat cannot be
prevented by judgments. Despite the judgment of this Court
in Asma Jillani's case .a coup d'etat did take place, for
whatever reason, it is immaterial. We daily see the
revolutions and coups d'etat do take place despite
provisions regarding treason in Constitutions of the
countries. The persons who, want to stage a revolution or
coups d'etat do not have any regard for the judgments or
the Constitutional provisions. They go forward despite these
and rule if they succeed or are executed if they fail. Only
recently we have noticed such instances in our neighbouring
countries.

The assertion that the Chief Martial Law Administrator had

given statements and made pledges that he would do this
and in such and such time does not detract from the
existence of the Martial Law or the powers which are
exercised under it. The Courts have nothing to do with these
statements as such like statements and pledges are not
enforceable under any law in any Court. Even in legal
Governments the Prime Ministers who are 'generally the
Chief Executives make wild promises either at the time of
elections or even thereafter but no Court can come forward
and direct them to fulfil their promise. This is a matter
between them and the people. If they fulfil their promises
people will be pleased with them but if they do not then it is
for the people to resort to any action they might like to, but
the Courts have nothing to do with that. The Courts cannot
give any direction that the Chief Martial Law Administrator
is to do such and such thing or not to do such and such thing
and within such and such time simply because he had wade
certain statements and promises. This is outside the scope
of the jurisdiction of the Court.

The upshot of the above discussion is :-

(1) That the Laws (Continuance in Force) Order which is
effectual for the time being is the new Legal Order for the
time being.

(2) That the new Legal Order has suppressed the old Legal
Order (Constitution) for the time being.

(3) That this Court derives its jurisdiction from the new Legal
Order and that the orders of detentions in question cannot
be challenged in this Court in view of the proviso to Article 2
and Article 4 of the Order. The petition is therefore
dismissed.

MUHAMMAD HALEEM, J. -I have had the advantage of

reading -the judgment proposed to be delivered by my Lord
the Chief Justice and concur with it in full and have nothing
further to add.

G. SAFDAR SHAH, J.-During the course of rather extended,

albeit, able arguments addressed to us by Mr. Sharifuddin
Pirzada, learned Attorney-General for Pakistan, Mr. A. K.
Brohi, learned counsel for the Federation of Pakistan and
Mr. Yahya Bakhtiar, learned counsel for the petitioners, I
was tempted to write a separate judgment But after going
through the judgment of my Lord the Chief Justice 1
abandoned the idea as I thought it would simply duplicate
the process. The lucid and able exposition by my Lord the
Chief Justice of the various complicated and difficult
Constitutional issues in this case is indeed worthy of
admiration, particularly when his Lordship was able to
finalise his judgment within a very short time.
Respectfully, therefore, concurring in the judgment of my
Lord the Chief Justice, and being of the same opinion that in
view of the suspension off Fundamental Rights by
subsection (3) of section 2 of the Laws (Continuance' in
Force) Order, 1977, this Court has no jurisdiction to grant to
petitioners' any relief. This petition is therefore dismissed.

DR. NASIM HASAN SHAH, J.-I have had the advantage of

perusing the judgment proposed to be delivered by my Lord
the Chief Justice and am in respectful agreement with it. As I
consider that some aspects of the questions which fall for
decision may usefully be highlighted further, I venture to
add a few words of my own.

2. The facts which form the background have been lucidly

set out in the judgment of my Lord the Chief Justice and
need not be repeated. As I appreciate the problems that
arise in this case, they are, firstly, to ascertain the precise
nature of the change that took place by the issuance of the
Proclamation of Martial Law on 5th July 1977, and the
promulgation on the same day of the Laws (Continuance in
Force) Order-r 1977; secondly, to determine the legal effect
of these steps and, thirdly, in case these acts are not lawful,
whether they can be validated on any juristic principle.

3. The consideration of our political history shows that the

Armed Forces have, during the past two decades, stepped in
to govern the country on three different occasions. In
October 1958, when the 1956 Constitution was in force, the
President of the Republic, General Iskandar Mirza, in
collaboration with the Army, took over the country,
abrogated the Constitution and placed the country under
Martial Law, appointing General Muhammad Ayub Khan to
govern the country, through a legal instrument, called the
Laws (Continuance in Force) Order, 1958. The latter, who
shortly thereafter had also assumed the office of President,
framed a Constitution for the country, which was
promulgated on 7th June 1962. This Constitution remained
in force till 25th March 1969, when President Ayub Khan,
being unable to control the agitation mounted against his
rule, invited the Commander-in-Chief of the Army to step to
save the country from internal disorder and chaos. The
Commander-in-Chief, General Muhammad Yahya Khan,
willingly obliged again placed the country under Martial Law
by the Proclamation issued by him on 26th March 1969,
abrogated the Constitution of 1962 and dissolved the
National and Provincial Assemblies. A few days thereafter,
on 31st March 1969, he promulgated the Provisional
Constitution Order, which, with some variations, followed
the scheme of the Laws (Continuance in Force) Order, 1958.
This was the second intervention.

4. The events that took place thereafter are recent history.

General Elections, on the basis of One-man One-vote were
held throughout the country in December 1970, in
pursuance of the Legal Framework Order, promulgated
earlier on 30th March 1970. These resulted in a land-slide
victory for Sh. Mujib-ur-Rehman's Awami League in East
Pakistan and an impressive victory for Mr. Z. A. Bhutto's
People's Party in West Pakistan. Owing to the secessionist
movement started by the Awami League, the follies of
General Muhammad Yahya Khan and the massive
intervention of India, followed by armed aggression, East
Pakistan was dismembered from the mother country on
16th December 1971. Thereafter the elected
representatives belonging to Western Wing, alongwith two
members from East Pakistan, met in Islamabad on April 14,
1972, as the National Assembly of Pakistan and proceeded
to enact the Interim Constitution on April 21, 1972.
Subsequently, this body framed the Permanent Constitution
of Pakistan, which came into force on 14th August 1973.
Some four years later country-wide elections were held on
7th March 1977, under its provisions. However, as soon as
the Election Results were announced, practically the whole
country rose in protest against them, being convinced that
they were manipulated and the outcome of massive rigging.
The main demands made in the general agitation that
followed were that the Prime Minister should resign and
that fair and free elections be held afresh. The ruling
People's Party and the Opposition Parties, represented by an
alliance, called the Pakistan National Alliance, held lengthy
Conferences to resolve this grave problem, but without
success. This led to the third Military intervention, in the
early hours of 5th July 1977.

5. The Chief of the Army Staff General Muhammad

Zia-ul-Haq proclaimed Martial Law, the Constitution was
ordered to remain in abeyance, the National Assembly,
Senate and Provincial Assemblies were dissolved, the Prime
Minister and other Ministers ceased to hold offices.
However, the President of Pakistan was continued in the
office. On the same day the Laws (Continuance in Force)
Order, 1977 was promulgated providing for the governance
of the country in accordance with the provisions of the 1973
Constitution as nearly as may be, notwithstanding its
abeyance, subject to certain stipulations.

6. So far as the two earlier interventions of October 1958,

and March 1969, are concerned, this Court has had the
occasion to examine the question of their legal effect. The
legal effect of the intervention of 1958 came up for
consideration in the case State v. Dossa P L D 1958 S C (Pak.)
23. Muhammad Munir, C. J., who wrote the leading
judgment, observed therein that "it sometimes happens
however that a Constitution and the national Legal Order
under it is disrupted by an abrupt political change not within
the contemplation of the Constitution. Any such change is
called a revolution and its legal effect is not only the
destruction of the existing Constitution but also the validity
of the national Legal Order." The learned Chief Justice went
on to observe "the essential condition to determine whether
a Constitution has been annulled is the efficacy of the
change." In other words, if a revolution a legalised illegality.
The revolution itself becomes a law creating fact because
thereafter its own legality is judged not by reference to the
annulled Constitution but by reference to its own success.
For this view, reliance was placed on the writings of Hans
Kelsen contained in his Book on the "General Theory of Law
and State." Th., Court held that the 1958 revolution satisfied
the test of efficacy and had thus become a basic law creating
fact. It was accordingly. found that the Laws (Continuance in
Force) Order, 1958, however transitory or imperfect it might
be, was a new Legal Order and had destroyed the old Legal
Order, with the result that the validity of the laws and
correctness of judicial decisions were to be determined with
reference to that Order and not the earlier Order.

7. However, when the validity of the second intervention of

1969 came up for examination, a totally different view was
taken of its legal effect. This is evident from the judgment of
this Court in the case entitled Asma Allani v. Government of
Punjab P L D 1972 S C 139. Herein also the Proclamation of
Martial Law by General Muhammad Yahya Khan and the
abrogation of 1962 Constitution so as to introduce military
rule, were considered and it was held that the assumption of
power by General Muhammad Yahya Khan and installation
of himself as the President and Chief Martial Law
Administrator by the Proclamation of 1969 was entirely
illegal. The ruling in Dossu's case that where a Constitution
and the national Legal Order under it is disrupted by an
abrupt political change not within the contemplation of the
Constitution, such a change is called revolution and its legal
effect is not only the destruction of the existing Constitution
'out also of the validity of the national Legal Order,
irrespective of how and by whom such a change is brought
about, was held not to be good law. General Yahya Khan
was held to be a usurper and all the actions taken by him
found to be illegal and illegitimate. In order to avoid the
disastrous consequences of declaring all acts done during his
rule, whether legislative or otherwise, to be of no legal
effect, it was, however, held that those which were in the
wider public interest could be condoned on the principle of
condonation, notwithstanding their illegality.
8. This brings us to the consideration of the legal effect of
the third and present intervention. The contention on behalf
of the petitioner, of course, is that the acts of General
Muhammad Zia-ul-Haq in placing the country under Martial
Law, suspending the Constitution and ordering the
governance of the country in accordance with the provisions
of the Laws (Continuance in Force) Order, 1977, are, as held
by this Court in Asma Jilani's case, illegal. Hence the
Proclamation of Martial Law and the Laws (Continuance in
Force) Order are liable to be declared as without lawful
authority.

9. This contention is refuted by Mr. A. K. Brohi, appearing on

behalf of the Federation of .Pakistan, who submits that the
view of the consequences of the military take-over by this
Court in Anna Jillani's case was not correct. On the other
hand, the conclusions arrived at by this Court in the earlier
case of Dosso were correct, because even an extra-legal act
not within the contemplation of the Constitution which
effectively destroys or supersedes the old national Legal
Order is a law-creating fact and the validity of the said action
is to be judged not by reference to the old Legal Order, but
by reference to the new Legal Order.

10. The question, therefore, is as to which of the two views

is correct? However, to ascertain whether the rule to be
applied in the present case should be the one laid down in
Dosso's case or the one laid down in Asma Jillani's; it must
first be examined if the nature of the military interventions
that took place in October 1958 and March 1969 are similar
in character to the intervention now in question.
11. The Proclamation of Martial Law issued by the President
Iskandar Mirza in October 1958, shows that he decided that
:-

(a) The Constitution of the 23rd March 1956 will be

arbrogated.

(b) The Central and Provincial Governments will be

dismissed with immediate effect.

(c) The National Parliament and Provincial Assemblies will be

dissolved.

(d) All political parties will be abolished.

(e) Until alternative arrangements are made, Pakistan will

come under Martial Law.

General Muhammad Ayub Khan, Commander-in-Chief of

Pakistan Army was, accordingly, appointed as the Chief
Martial Law Administrator and all the Armed Forces of
Pakistan placed under his command. Explaining the reasons
for these steps the President, inter alia, observed .-

"The Constitution which was brought into being on 23rd

March 1956, after so many tribulations, is unworkable. It is
full of dangerous compromises, that Pakistan will soon
disintegrate internally if the inherent malaise is not
removed. To rectify them, the country must first be taken to
sanity by a peaceful revolution. Then, it is my intention to
collect a number of patriotic persons to examine our
problems in -the political field and devise a Constitution
more suitable to the genius of the Muslim people. When it is
ready, and at the appropriate time, it will be submitted to
the referendum of the people."

The Proclamation read with the above declaration of intent

shows . that the intention was to destroy the old national
Legal Order. Accordingly the Constitution was abrogated and
it was clarified that it was proposed to replace it by a new
one. Although the Laws (Continuance in Force) Order, 1958
provided for the governance of the country as nearly as may
be, in accordance with the Constitution of 1956, yet this was
only for the interregnum. The said Constitution described as
the late Constitution in the Laws (Continuance in Force)
Order and, of course, was subject to any Order of the
President or Regulation made by the Chief Administrator of
Martial Law. Hence it could truly be said that the
intervention of 1958 was intended to and did in effect
supersede the old national Order, ,"substituting it by a new
national Legal Order.

11. The position of the 1969 intervention was similar to the

1958 intervention. By the Proclamation of Martial Law of
25th March, 1969, the whole of Pakistan was placed under
Martial Law and the Constitution of the Islamic Republic of
Pakistan, 1962, was abrogated. In the broadcast made by
General Yahya Khan, Commander-in-Chief of the Pakistan
Army, on the following day, I.e. 26th March, 1969, it was
unambiguously stated that the Constitution of 1962 was to
be replaced by a new Constitution as is evident from the
following extract from his speech;

". . . It is my firm belief that a sound, clean and honest

administration is a prerequisite for sane arid constructive .
political life and for the smooth transfer of power to the
representatives of the people elected freely and impartially
on the basis of adult franchise. It will be the task of these
elected representatives to give the country a workable
constitution. . . , . ."

Thus in both the above-noted instances the purpose of the

intervention was not only to suppress the existing
Constitutions, but to replace them by new Constitutions.
The old Legal Order was to be replaced by a new legal Order.

12. The present situation, however, is radically different.

Although by the Proclamation of 5th July, 1977 the whole of
Pakistan has come under Martial Law, the Constitution has
not been abrogated but merely kept in abeyance. The
President of Pakistan elected under the 1973 Constitution is
to continue in office. Furthermore, there is no intention to
substitute the present Legal Order by a new Legal Order, for
this Legal Order is to be revived after fresh' elections have
been held. These too will be held under the provisions of the
1973 Constitution. The real character of the present
intervention has been explained by the Chief Martial Law
Administrator himself in his speech made on 5th July, 1977,
the relevant portion whereof may usefully be reproduced
below;--
". . But the Constitution has not been abrogated. Only the
operation of certain parts of the Constitution has been held
in abeyance. Mr. Fazal Elahi Chaudhary has very kindly
consented to continue to discharge his duties as President of
Pakistan as heretofore under the same Constitution. I. am
grateful to him for this. To assist him in the discharge of his
national duties, a four-member Military Council has been
formed. The Council consists of the Chairman, Joint Chiefs of
Staff, and Chiefs of Staff of the Army, Navy ;end Air Force.

I will discharge the duties of the Chief of Army Staff and

Chief Martial Law Administrator. Martial Law Orders and
Instructions, as and when required, will be issued under my
orders."

The reasons necessitating the intervention were explained in

the following words;---

"The elections were held in our beloved homeland on March

7 last. The election results, however. were rejected by one
of the contending parties, namely the Pakistan National
Alliance. They alleged that the elections had been rigged on
a large scale and demanded fresh elections. To press their
demand for re-elections, they launched a movement which
assumed such dimensions ?`pat people even started saying
that democracy was not workable :n Pakistan. But, I
genuinely feel that the survival of this country lies in
democracy alone. It is mainly due to this belief that the
Armed Forces resisted the temptation to take over during
the recent provocative circumstances in spite of diverse
massive political pressures. The Armed Forces have always
desired and tried for the political solution to political
problems. That is why the Armed Forces stressed on the
then Government that they should reach a compromise with
their political rivals without any loss of time... It must; be
quite clear to you now that when the political leaders failed
to steer the country of a crisis, it is an inexcusable sin for the
Armed Forces to sit as silent spectators. It is primarily, for
this reason, that the Army, perforce had to intervene to save
the country.

I would like to point out that I saw no prospects of a

compromise between the People's Party and the P. N. A.,
because of their mutual distrust and lack of faith. It was
feared that the failure of the P. N. A. and P. P. P. to reach a
compromise would throw the country into chaos and the
country would thus be plunged into a more serious crisis.
This risk could not be taken in view of the larger interests of
the country. The Army had, therefore, to act as a result of
which the Government of Mr. Bhutto has ceased to exist ;
martial law has been imposed throughout the country ; the
National and Provincial Assemblies have been dissolved and
the Provincial Governors and Ministers have been
removed."

However, a categorical assurance that there was no

intention to establish a new Legal Order, but merely to help
the country to get back on the rails of constitutionalism was
thereafter given, in the following words;--

" . I was obliged to step in to fill in the vacuum created by

the Political leaders. I have accepted this challenge as a true
soldier of Islam. My sole aim Is to organise free and fair
elections which would be held in October this year. Soon
after the polls, power will be transferred to, the elected
representatives of the people . . . ."

The intervention thus appears to be for a temporary period

and for limited purpose of arranging fair and free elections
so as to enable the country to return to the democratic way
of life. Thus on the present occasion the Proclamation of
Martial Law does not appear to be of the same type as the
Proclamations of Martial Laws of 1958 and 1969, whereby
not only the existing Constitutions were abrogated but that
this was done with the intention of replacing them with new
Constitutions. The purpose there was to destroy the existing
Legal Orders and replace them with new Legal Orders. In the
present case the situation is quite different. In view of the.
break-down of the normal constitutional machinery and to
fill the vacuum, the Armed Forces were obliged to take an
extra-constitutional step. Martial Law was imposed, in the
picturesque words used in the written statement filed by
Mr. Brohi, not "in order to disable the constitutional
authority, but in order to provide a bridge to enable the
country to return to the path of constitutional rule." In the
felicitous phrase of my Lord the Chief Justice, the act was
more in the nature of a "constitutional deviation" rather
than an overthrow of the Constitution. The Constitution of
1973 is not buried but merely suspended. It, however,
continues to be the governing instrument subject to the
provisions of the Laws (Continuance in Force) Order, 1977.
In these circumstances neither the ratio decidendi of Dosso
v. State nor that of Asma Jillani v. The Punjab Government is
strictly applicable to the present case.

13. The question next arises whether the above intervention

was a step which could lawfully be taken. So far as this point
is concerned, it is an admitted position that there is no
provision in the Constitution authorising the Army
Commander, even in the event of the break-down of the
constitutional machinery to intervene in the manner that he
did. But Mr. Sharif-ud-Din Pirzada, Attorney-General of
Pakistan, submitted before us that since the country cannot
be allowed to perish for the sake of the Constitution, the
intervention was justified on the doctrine of State necessity,
while Mr. Brohi contended that as the old Legal Order had
been effectively replaced by a new Legal Order, henceforth
all questions of legality were answerable with reference to
it, in other words all such questions were to be determined
not on the basis of the previous Legal Order but with
reference to the Laws (Continuance in Force) Order, 1977.

14. The doctrine of "necessity", namely rendering lawful that

which otherwise is unlawful, is well-established in
jurisprudence (ID QUOD -ALIAS NON EST LICITUM,
NECESSITAS LICITLJM FACIT"-that which otherwise is not
lawful necessity makes lawful). In constitutional law the N
application of Martial Law is but an extended application of
this concept N of State necessity. The doctrine of necessity
was applied by the Federal Court of Pakistan only recently as
a legal justification for ostensibly unconstitutional actions to
fill a vacuum arising out of a Court order. See Reference by
H. E. The Governor-General to the Federal Court P L D 1955
F C 435. It will be recalled that the reference was
necessitated, inter alia, to overcome, the difficulty caused by
the circumstance that forty; four, Acts passed by the
Constituent Assembly of Pakistan had not received the
assent of the Governor-General, ac required by law. The
Constituent Assembly had been dissolved by the
Governor-General in October, 1954, and had not been
reconstituted. By a Proclamation made on 16th April 1955,
the Governor-General declared certain essential laws to be
enforceable until their validity was decided upon by the new
Constituent Assembly. It was held that he bad acted in order
to avert an impending disaster and to prevent the State. and
society from dissolution and that on the ground of necessity
his Proclamation should be treated as having been given the
force of law to the measures specified. The principal
authority relied upon was the address to the Jury by Lord
Mansfield in the case of R. V. Stratton and others (1779) 21
St. Tr. 1222. The Governor of Madras acted illegally and
unconstitutionally in refusing to count the votes of some of
the members of his Council. The Councillors accordingly
imprisoned him for eight months and carried on the
Government themselves. Upon being indicted in England
they set up the defence of necessity. Lord Mansfield
directed the jury that the defence was one of `civil' or `State
necessity'. He remarked;--

"In India you may suppose a possible case, but in that case,
it must be imminent, extreme necessity ; there must be no
other remedy to apply to for redress ; and in the whole they
do, they must appear clearly to do it with a view of
preserving the society and themselves. What immense
mischief would have arisen to have waited for the
interposition of the Council at Bengal."

The principle clearly emerging from this address is that

subject to the condition of absoluteness, extremeness and
imminence, an act which would otherwise be illegal
becomes legal if it is done bona fide under the stress of
necessity, the necessity being referable to an intention to
preserve the Constitution, the State or the society and to
prevent it from dissolution, and affirms Chitty's statement
that necessity knows no law and the maxim cited by Bracton
that necessity makes lawful which otherwise is not lawful.

15. Situations are conceivable where the normal law of the

land may have to give way before necessity, particularly in a
situation where the welfare of the State and its subjects are
at stake, and in proper G case it would be the Court's duty to
recognize such a situation and to act 0 upon the principle
"salus populi suprema lex" despite the express provisions of
the Constitution. An instance .of this is furnished by the case
. The Attorney-General of the Republic v. Mustafa Ibrahim
and others (1964) 3 Cyprus L R 195. To appreciate the
background of this decision, it may be mentioned that by
December 1963 the structure of the Constitution of Cyprus
had broken down. The island divided up into armed camps.
The Vice-President and the Turkish Cypriot members of the
Council of Ministers ceased participating in the machinery of
government; the Turkish Cypriot representatives no longer
sat in the House of the Representatives; but the Constitution
required the concurrence of Greek and Turkish Cypriots for
many important purposes. The administration of justice was
thrown into chaos. For some months Turkish Judges did not
attend their Courts. The mixed Courts which had to be
convened to dispose of cases where the parties belonged to
different communities could not be constituted. The
Supreme Constitutional Court had not met since August
1963, when its neutral ,President had resigned; and by July
1964 over 400 cases were awaiting trial by the Court. In June
1964 the neutral President of the High Court resigned.

16. In July 1964 the House of Representatives, sitting

without its Turkish Cypriot members, passed a law to
establish a Supreme Court which was to exercise the
functions previously vested in the Supreme Constitutional
Court and the High Court. This law was inconsistent with a
number of important articles of the 1960 Constitution; it had
not been passed in the manner prescribed by the
Constitution; indeed, it included provisions which conflicted
with certain articles declared by the Constitution to be
unalterable.

17. In August 1964 four persons charged with serious

offences and committed for trial at assizes were granted bail
by a District Judge. The Attorney-General appealed to the
Supreme Court against this order for bail; three Judges
nominated by the Court in accordance with the ? 96.1 law
heard the appeal. For the respondent it was argued that the
1964 law was a nullity as it was unconstitutional, so that the
Court had no valid existence. The Court unanimously
rejected this plea and held that it was validly constituted and
had jurisdiction to entertain the appeal. The Constitution of
1960, it was observed, had not ceased to have legal force,
but it had to be read subject to the doctrine of necessity.
Measures not sanctioned by the letter of the Constitution
could properly be taken if they were necessary to avert a
grave public evil and were proportionate to the evil to be
averted. In Cyprus the presuppositions of inter-communal
co-operation, on which the Constitution had been based,
had foundered, and the Constitution had become
unworkable. The steps taken to rectify the situation were
reasonably required in the circumstances. In support of this
conclusion some pertinent observations were made by the
three Judges constituting the Bench. Vassiliades, J.,
observed;--

"This Court now, in its all important and responsible function

of transforming legal theory into living law, applied to the
facts of daily life for the preservation of social order, is faced
with the question whether the legal doctrine of necessity . . .
. should or should not, be read into the provisions of the
written Constitution of the Republic of Cyprus. Our
unanimous view is in the affirmative.

The enactment of the Administration of Justice

(Miscellaneous Provisions) Law, 1964, which would
otherwise appear to be inconsistent with Articles 133.1 and
153.1 of the Constitution, can be justified, if it can be shown
that it was enacted only to avoid consequences which could
not otherwise be avoided and which; if they had followed,
would have inflicted upon the people of Cyprus, when the
Executive and Legislative Organs of the Republic are bound
to protect, inevitable irreparable evil; and furthermore if it
can be shown that no more was done than was reasonably
necessary for the purpose, and that the evil inflicted by the
enactment in question was not disproportionate to the evil
avoided-Law was justified notwithstanding the provisions of
Articles 133.1 and 153.1 of the Constitution."

Triantafyllides, J., after reproducing the facts of .the

Constitutional impasse observed:-

"Organs of Government set up under a Constitution are

vested expressly with the competence granted to them by
such constitution, but they have always an implied duty to
govern too., It would be absurd to accept that if, for one
reason -or other, an emergency arises, which cannot be met
within the express letter of the constitution, then such
organs need not take the necessary measures in the matter,
and that they would be entitled to abdicate their
responsibilities and watch helplessly the disintegration of
the country or an essential function of the State, such as the
administration of justice. Notwithstanding a constitutional
deadlock, the State continues to exist and together with it
continues to exist the need for proper government. The
Government and the Legislature are empowered and bound
to see that legislative measures are taken in ensuring proper
administration where what has- been provided for under the
Constitution, for the purpose, has ceased to function"

He went on to observe :-

“…….Having considered the jurisprudence and authoritative

writings of other countries to which this Court has been
referred, as well as some others, I am of the opinion that the
doctrine of necessity in public law is in reality, the
acceptance of necessity as a source of authority for acting m
a manner not regulated by law but required, in prevailing
circumstances, by supreme public interest, for the salvation
of the State and its people. In such cases `salus populi'
becomes `supremo lex'. "

Another pertinent observation may also be reproduced:

"Even though the Constitution is deemed to be a supreme

law limiting the sovereignty of the Legislature, nevertheless,
where the Constitution itself cannot, measure up to a
situation which has arisen, especially where such situation is
contrary to its fundamental theme, or where an organ set up
under the Constitution cannot function and where,
furthermore, in view of the nature of the Constitution it is
not possible for the sovereign will of the people to manifest
itself, through an amendment of the Constitution, in
redressing the position, then, in my opinion according to the
doctrine of necessity the legislative power, under Article 61
remains unhindered by Article 179, and not only it can, but it
must, be exercised for the benefit of the people."

He then went on to make the observation relied upon by

Mr. Sharifuddin Pirzada that a State and people should not
be allowed to perish for the sake of Constitution. On the
contrary, the Constitution should exist for the preservation
of the State and welfare of the people. However, he
qualified his observations by laying down that where the
doctrine of necessity has been invoked it is for the judiciary
to determine if the necessity in question actually exists and
also if the measures taken were warranted thereby.

Josephides, J., also held that he interpreted the Constitution

to include the doctrine of necessity in exceptional
circumstances, as an implied exception to particular
provisions of the Constitution in order to ensure the very
existence of the State. Commenting on the situation that
had arisen he remarked.

"Faced with the non-functioning of the two superior Courts

of the land and the partial break-down of the District Court,
the Government had to choose between the alternatives,
viz. either to comply with the strict letter of the Constitution
(the relevant articles being unalterable under any
Condition), that is, cross its arms and do nothing but witness
the complete paralysis of the judicial power, which is one of
the three pillars of the State; or to deviate from the letter of
the constitution, which had been rendered inoperative by
the force of events (which situation could not be foreseen
by the framers of the Constitution) . . . . ."

However, he laid down the following pre-requisites to be

satisfied before this doctrine could become applicable :-

(a) an imperative and inevitable necessity or exceptional

circumstances; (b) no other remedy to apply;

(c) the measure taken must be proportionate to the

necessity; and
(d) it must be of a temporary character limited to the
duration of the exceptional circumstances.

18. The doctrine of necessity was also invoked by two Judges

of the Divisional Bench of the High Court of Southern
Rhodesia (Lewis and Goldin, JJ.) in the famous ease
Madzimbamuto v. V. Lardner-Burke (1967) 83 L Q R 64. The
Divisional Bench held that although the existing Government
of Mr. Smith and his colleagues was not the lawful
Government of the Southern Rhodesia (having unilaterally
declared independence -UDI- and broken away from the
British Crown and framed its own Constitution in 1965, in
supersession of the Constitution enacted by the British
Parliament in 1961) the Government could nevertheless
continue to retain without trial two persons in terms of a
Southern Rhodesia's statute which conferred the power to
detain persons without trial only upon the lawful
Government of Southern Rhodesia. This finding was
grounded on the following hypothesis:

"The Government is, however, the only effective

Government of the country, and therefore on the basis of
necessity and in order to avoid chaos and a vacuum in the
law, this Court should give effect to such measures of the
effective Government, both legislative and administrative, as
could lawfully have been taken by the lawful Government
under the 1961 Constitution for the preservation of peace
and good Government and the' maintenance of law and
order."
19. The appeal from this judgment was heard by a Bench of
five Judges of the Appellate Division of the Rhodesian High
Court (1968) 2 S A, of whom only one, Fieldsend A. J. A.
agreed with the first Court with respect to the doctrine of
necessity. According to him "in considering each individual
case that comes before it the Court must not lose sight of
the political situation and the political realities. The question
is whether these political realities create such a situation
that, judged by the yardstick of 1961 Constitution the Court
should decide that situation sanctions for the accord of
validity to some acts of measures done or enacted otherwise
than by the machinery of that Constitution." He went on to
add: "Lewis, J., in the Court fully relied on the maxim "salus
populi suprema lex", which is in effect the doctrine of State
necessity to justify a departure from the express terms of
the 1961. Constitution. In his alternative argument in this
Court Mr. Rathouse said that he preferred not to put his
case squarely upon this basis, but to rely rather upon what
he termed "natural necessity" to determine whether or not
there is any room for the introduction of a doctrine of
necessity to mitigate the strict application of the
Constitution it is necessary first to ascertain the principles
underlying the commonly accepted meaning of the doctrine.
This can best be done by reference to certain of the cases
from which these emerge." He then referred to several
cases, of which the following two are of particular interest
and are accordingly being reproduced hereunder. In R. v.
Bekker & Naude (1900) 17 SC 340, Solomon, J., said at page
355 :-
"Martial Law is nothing more nor less than the law of
self-defence or the law of necessity. It is put in force in times
of public danger, when the maxim salus reipublicae extrema
lex applies, and when in consequence it becomes necessary
for the military authorities to assume control and to take the
law into their own hands for the very purpose of preserving
that Constitution which is the foundation of all the rights
and liberties of its subjects. When such a state of things
arises in any district, the ordinary rights and liberties of the
inhabitants are subordinated to the paramount interest of
the safety of the State . . . . Both the justification for
proclaiming martial law and the actual exercise of authority
there under are strictly limited by the necessities of the
situation ;"

and in White & Tucker v. Rudolph 1879 Kotze 15, Kotze, J.

said at page 124:

"It must be admitted that the law distinctly recognizes the

maxim necessitas non habet legem, quod cogit defendit. The
meaning of this is not, as some writers lay down, that
necessity overrides all law, and is superior to it; but that the
law justifies in certain cases, as where the safety of the State
is in imminent danger, a departure from the ordinary
principles protecting the subject in his right of private
property. This right of private property is sacred and
inviolable: any interference with it is, prima facie, wrongful
and unlawful, and it is incumbent upon the respondent in
the present instance to justify what he has done by showing
that it was dictated by necessity that will justify a departure
from the ordinary principles of law. It must be necessity
extreme and imminent."

His conclusion was expressed as follows :-

"From a consideration of all these sources and their

similarities to and differences from the cases now under
consideration, it seems that the only proper conclusion is
that natural justice, in the form of a controlled common
sense, dictates that, for the welfare of the mass of people
innocently caught up in these events, validly must be
accorded to some acts of the usurping authorities, provided
that no consideration of public policy to the contrary has to
prevail. It is unnecessary, and indeed undesirable, to
attempt to define precisely, the limits within which this
validity will be accorded. The basis being broadly necessity,
the decision is one which must be arrived at in the light of
the circumstances of each case."

The above view was favourably commented upon in the

dissenting judgment of Lord Pearce in the Privy Council,
although the majority rejected the principle of necessity as
applied by the Rhodesian Judges (Madzimbamuto v.
Lardner-Burke (1968) 3 All E R 561. Lord Pearce stressed that
the British Parliament and Government had really made no
effort whatever to govern Rhodesia after UDI and the
argument that it was only Parliament and Parliament alone
to determine whether maintenance of law and order would
justify giving effect to laws made by the usurping
Government to such extent as may be necessary for that
purpose was altogether elusive and unreal if read as a
response to the question whether and under what
circumstances the necessity of avoiding chaos can be
regarded (as it was conceded by the appellants that it can be
regarded) as a source of law.

His Lordship quoted with approval the following extract

from the judgment of Fieldsend, J. :-

"The necessity relied on in the present case is the need to fill

the vacuum which would result from a refusal to give the
validity to the acts and legislation of the present authorities
in continuing to provide for tile every day requirements of
the inhabitants of Rhodesia over a period of two years. If
such acts ware to be without validity there would be no
effective means of providing money for the hospitals, the
police, or the Courts, of making essential by-laws for new
townships or of safeguarding the country and its people in
any emergency which might occur, to mention but a few of
the numerous matters which require regular attention in the
complex modern state. Without constant attention to such
matters the whole machinery of the administration would
break down to be replaced by chaos, and the welfare of the
inhabitants of all races would be grievously affected."

Lord Pearce went on to observe;

"The lawful Government has not attempted or purported to

make any provision for such matters or for any lawful needs
of the country, because it cannot. It has of necessity left all
those things to the illegal . Government and its Ministers to
provide. It has appointed no lawful Ministers. If one
disregards all illegal provisions for the needs of the country,
there is a vacuum and chaos.

In my view the principle of necessity or implied mandate

applies to the present circumstances in Rhodesia. I cannot
accept the argument that there was no necessity since the
illegal regime can always solve the problem by capaitulating.
So too a foreign army of invasion can always return home.
The principle of necessity or implied mandate is for the
preservation of the citizen, for keeping law and order, rebus
sic stantibus, regardless of whose fault it is that the crisis has
been created or persists. Subject therefore to the facts
fulfilling the three necessary questions, the principle of
necessity or implied mandate applies in this case. This
according to Lord Mansfield with whom I agree, is a
question of fact.

Does the ordinary orderly running of the country reasonably

require it? Fieldsend, J., held that it did. The other Judges
accepted different principles, and therefore their overall'
conclusion is not of much assistance on this point. But
Fieldsend, J., approached the case from what in my view is
the right angle, and I would therefore accept his finding . . . .
."

20. Another instance wherein the principle of necessity was

found to be applicable is furnished by the decision of the
Supreme Court of Nigeria in the case Lakamni & Oala v.
Attonery-General (West) decided on 24th April, 1970. After
the rebellion in different parts of Nigeria, in January 1966,
the Acting President handed over the country to the Armed
Forces. The General Officer commanding the Nigerian Army
accepted the invitation to form an interim Military
Government. He suspended some parts of the Constitution
and started to administer the country. The State
Government of Western Nigeria started to investigate the
activities of public officers including E. O. Lakanmi and some
members of his family. The Chairman of the Tribunal of
Inquiry into the assets of such public officers made an order
under Edict No. 5 of 1967 restraining the appellants
(Lakanmi etc.) from disposing of their real property until the
Military Government of the State directed.

21. The appellants sought certiorari to quash the order on

the grounds that Edict No- 5 was void, since it purported to
operate in the same field as the Federal Military
Government's Decree No. 51 of 1966 which had earlier
"covered the filed", and that .certain of its provisions were
inconsistent with the Decree. The High Court of Ibadan
rejected these arguments and the appellants appealed;
while the appeal was pending, the federal Military
Government passed three further Decrees in the same field,
Nos. 37, 43 and 45 of 1968. The respondents took a
preliminary objection that the High Court of Appeal had no
jurisdiction, since the order complained of had been
validated by Decree No. 45 of 1968. The Court of Appeal
agreed. On a further appeal to the Supreme Court, the
question arose of the validity of Decree No. 45.

22. The appellants argued that the Federal Military

Government was not a revolutionary Government but a
constitutional interim Government whose object was to
uphold the 1963 Constitution except where the necessity to
depart from it arose. The separation of powers was
accordingly preserved after 1966 and the Government's
power to make laws by Decrees was not therefore
unfettered. Decree No. 45 could therefore be regarded as a
legislative act which constituted an executive interference in
the sphere of the judiciary, and was to that extent invalid.

23. The respondents argued that the Federal Military

Government was a revolutionary Government which had
unfettered power to rule by Decree. Nothing in the
Constitution could make a Decree void, and validation laws
should be regarded as a normal exercise of legislative
functions.

24. The Supreme Court held that Edict No. 5 was ultra vires
as Decree No. 51 covered the field. As to the validity of
Decree No. 45, they accepted the appellants' argument and
decided that the Federal Military Government was indeed a
constitutional rather than a revolutionary Government, and
that the 1963 Constitution remained law, except as
derogated from under the doctrine of necessity. They
refused to accept the view that the Federal Military
Government derived its authority from the 1966 revolution
and not from the 1963 Constitution. Separation of powers
remained a part of the Constitution which had not been
superseded under the doctrine of necessity; and as Decree
No. 45 was not itself justified by the doctrine, it was invalid.
25. In taking the above decision the Supreme Court of
Nigeria made several interesting observations and some of
these may be reproduced there under with advantage :-

"It is to be noted from the Government Notice (No. 148) set

out above that the invitation to the Armed Forces, which
was duly accepted, was to form an interim Military
Government. and it was made clear that only certain
sections of the Constitution would be suspended. It was
evident that the Government thus formed is an interim
Government which would uphold the Constitution of Nigeria
and would only suspend certain sections as the necessity
arises."

Thereafter the Court discussed the case of Uganda v.

Commissioner of Prisons (1966) E A L 8,514, which followed
the decision of this Court in State v. Dosso P L D 1958 S C
(Pak.) 53. But the Court, however, reiterated its view that
the Federal Military Government was not revolutionary
Government and went on to observe;--

". . . It made it clear before assuming power that the

Constitution of the country still remains in force, excepting
certain sections which are suspended. We have tried to
show that the country is governed by the Constitution and
Decrees which, from time to time, are enacted when the
necessity arises and are then supreme when they are in
conflict with the Constitution. It is clear that the Federal
Military Government decided to govern the country by
means of the Constitution and Decrees. The necessity must
arise before a decree is passed ousting any portion of the
Constitution. In effect, the Constitution still remains the law
of the country and all laws are subject to the Constitution
excepting so far as by necessity the Constitution is amended
by a Decree. This does not mean that the Constitution of the
country cease, to have effect as a superior norm. From the
facts of the taking-over, as we have pointed out, the Federal
Military Government is an interim Government of necessity
concerned in the political cauldron of its inception as a
means of dealing effectively with the situation which has
arisen and its main object is to protect lives and property
and to maintain law and order . . . ."

It was also observed that "by recognizing the fact that there
is a doctrine of necessity, we do not alter the law but apply
it to facts as they do exist."

26. The doctrine of necessity is also recognised in Islamic

Law. Event in the Holy Qur'an the application of this doctrine
is made permissible Verse, 173 of Chapter II (Sura-al-Baqr)
as translated by Marmaduke Pickthal refers to it thus;

"173. He hath forbidden you only carrion, and blood, and

swine flesh, and that which hath been immolated to (the
name of) any other than Allah. But he who is driven by
necessity, neither craving nor transgressing, it is no sin for
him. Lo ! Allah is Forgiving, Merciful."

27. However, before this doctrine can be invoked the

following conditions must pre-exist : (a) that which is
forbidden by Allah can be taken only where one is driven to
it by necessity ; (b) that there is neither craving nor the
intention to transgress the limits set by him ; (c) that oily
that bare minimum is s taken as is necessary to save life.
Thus the principle of necessity as also the conditions in
which it can be resorted to are clearly set forth in Islam.

28. This somewhat lengthy review of the case-law of this

country, the judgments of the superior Courts of Cyprus,
Rhodesia, Nigeria and even the Privy Council show that
necessity can be accepted as a justification for an extralegal
act, in certain conditions. This position is also recognised in
Islam. In the precedent cases, cited above it has also been
observed that "Martial Law is nothing more nor less than the
law of self-defence or the law of necessity (In R. v. Bekkar &
Naude)", and that in constitutional law the application of
Martial Law is but an extended application of the concept of
State necessity (See Reference by H. E. The
Governor-General to the Federal Court of Pakistan). Thus, in
certain exceptional circumstances it is possible, as a
measure of State necessity, to impose even Martial Law.

29. The question whether the conditions obtaining in

Pakistan necessitated the above step has to be answered by
reference to the happenings from 7th of March, 1977, up to
5th July, 1977, which reveal that the constitutional and
moral authority of the National Assembly which had come
into being as a result of the elections held on 7th March,
1977, as well as the Federal and Provincial Governments
formed thereafter had been continuously and forcefully
repudiated throughout the country over a prolonged of
nearly four months, with the result that the national life
stood d. A situation had arisen for which the Constitution
provided no solution. The atmosphere was surcharged with
the possibility of furthers violence, confusion and chaos. As
the Constitution itself could not measure u to the situation
the doctrine of State Necessity became applicable, for
where the safety of the State and the welfare of the people
are. in imminent danger necessity justifies a departure from
the ordinary principles of law. In there circumstances the
step taken by the Armed Forces of imposing Martial Law
stands validated, on the principle of State Necessity, as
urged by the learned Attorney-General. But by the same
token this deviation must be of a temporary character,
limited to the duration of the exceptional circumstances.
Moreover the actions taken during this period will, for the
reasons set forth so admirably by my Lord the Chief Justice,
be open to judicial review.

30. I may now briefly comment upon the stand taken up by

Mr. Brohi on this point. According to him the legal effect of
the intervention was to be adjudged with reference to the
new Legal Order, namely, the Laws (Continuance in Force)
Order, 1977, and not the old Legal Order, namely, the
Constitution of 1973, because, the aforesaid Order had been
effectively replaced by the new Legal Order, the efficacy of
the change being the basis of its validity. In this connection
Mr. Brohi relied upon the doctrine of Kelsen enunciated in
his works on the Pure Theory of Law and the General Theory
of Law and State. The views of Kelsen advocated by him in
these works were explained to us by Mr. Brohi in some
detail. However, in the facts and circumstances of our
situation the doctrines propounded by Kelsen do not appear
to be strictly applicable as the change-over which occurred
on the 5th July 1977 cannot qualify as a "revolution" in
Kelsenian terms. Although the Armed Forces are
undoubtedly in effective control of the administration, it is
neither their intention nor indeed have they established a
new Legal Order in supersession of the existing Legal Order.
The Constitution of 1973 remains the supreme law of the
land, subject to the condition that certain parts thereof have
bee held in abeyance. The President of Pakistan and the
superior judiciary continue to function under the
Constitution, subject to any limitations placed on their
jurisdiction. The change is only in the nature of a
constitutional deviation rather than the destruction of one
Legal Order and its replacement by another. Even otherwise,
the doctrines of Kelsen cannot be accepted in their entirety
by Courts of Law. Whereas for Kelsen the efficacy of a
revolution creates a new reality of which the pure science of
law must take account for the Courts involved in practical
decisions the efficacy of a revolution creates a new legal
situation which they must take note of and proceed to
decide the matter as raised before them by the contesting
parties. In doing so they will have to take into account not
only the efficacy of the change, but other values, such as the
desirability of maintenance of peace, order, justice or good
Government, to fill the vacuum in law and to avoid chaos,
presumption in favour of the old regime because of its
original legal status or against it because of its record of
unconstitutional actions and conduct. In short, the
responsibility of the Judge is not to the "objective reality"
that exists for the academic observer but to the peace,
order, justice, morality and good government. In fact, for
Judges involved in practical decisions acceptance of the
changed Legal Order is not so much on account of its
efficacy as such but rather on necessity in the sense of "ID
QUOD ALIAS NON EST. LICITUM, NECESSITAS LICITUM
FACIT" (that which otherwise is not lawful necessity makes
lawful).

31. As for the other points arising in the case and dealt with
by my Lord the Chief Justice in his judgment, I am in
complete agreement therewith and have nothing to add.

ORDER OF THE COURT

According to the unanimous view of the Court, this petition

is dismissed as not being maintainable.

S. A. H. Petition dismissed.