Asma Jilani Case
Introduction:
Asma Jilani v. Government of Punjab (PLD 1972 SC 139) is a landmark judgment in the constitutional history of Pakistan. The case was filed by Asma Jilani, daughter of Malik Ghulam Jilani, a political leader who was detained under martial law orders during General Yahya Khan's regime. Asma Jilani challenged the legality of her father's detention before the Supreme Court, arguing that Yahya Khan's martial law was unconstitutional.
In a historic decision delivered after the fall of Yahya Khan in 1971, the Supreme Court declared Yahya Khan a " usurper" and held that the imposition of martial law was illegal. The judgment rejected the earlier "Doctrine of Necessity" used to validate military takeovers, restoring the supremacy of the Constitution and the judiciary's authority.
This case is significant because it:
i. Strengthened constitutionalism in Pakistan.
ii. Overruled earlier precedents (like the Dosso case) that legitimized extra- constitutional regimes.
iii. Reinforced that no authority, including the military, can suspend the Constitution.
Background:
I. Full Name of Case:
👉Miss Asma Jilani v. Government of the Punjab
II. Year Decided:
👉1972
Court:
👉Supreme Court of Pakistan
Bench:
👉Chief Justice Hamood ur Rahman and others
Petitioners:
i. Miss Asma Jilani (daughter of Malik Ghulam Jilani)
ii. Zarina Gauhar (wife of Altaf Gauhar)
Respondents:
i. Government of Punjab (in Asma's petition)
ii. Government of Sindh (in Zarina's petition)
The petitioners challenged the detention of their relatives under martial law regulations during the regime of General Yahya Khan.
Facts of the Case
1. Political Context:
i. In March 1969, General Yahya Khan took over as Chief Martial Law Administrator after the resignation of General Ayub Khan.
ii. Yahya Khan dissolved assemblies, and imposed martial law.
iii. Political activists and opponents, including Malik Ghulam Jilani and Altaf Gauhar, were detained without trial under martial law regulations.
2. Petition:
i. Miss Asma Jilani and Mrs. Zarina Gauhar filed habeas corpus petitions in the Supreme Court under Article 98 of the 1962 Constitution, challenging the legality of the detentions and martial law itself.
Issues Before the Court
1. Whether General Yahya Khan was a lawful authority to impose martial law and suspend the constitution.
2. Whether detention made under martial law regulations were valid.
3. Whether the doctrine of necessity applied to Yahya Khan's takeover.
Supreme Court's Judgment
1. Martial Law Declared Illegal:
i. The Court held that Yahya Khan was a usurper and his martial law was unconstitutional.
ii. The 1962 Constitution had not been lawfully abrogated; therefore, Yahya Khan had no authority to act as Chief Martial Law Administrator.
2. Doctrine of Necessity Rejected:
i. The Court disapproved of the application of the doctrine of necessity (which had been used earlier in the Dosso case to validate Ayub Khan's takeover).
ii. Chief Justice Hamoodur Rahman stated that the doctrine had been misapplied in the past.
Detentions Held Unlawful:
i. All detention under Yahya Khan's martial law regulations were declared illegal.
3. Overruling the Dosso Case:
i. The earlier precedent set in State v. Dosso (PLD 1958 SC 533), which had recognized the validity of martial law under Hans Kelsen's theory of revolutionary legality, was overruled.
Significance:
* Restored the principle that sovereignty belongs to the people and the Constitution, not to any military rule.
* Strengthened the rule of law and judicial independence.
* Became a precedent for future constitutional cases challenging extra-constitutional takeovers.
* Marked a turning point in Pakistan's constitutional history by refusing to give legitimacy to military coups.
Why This Case Became Historic
i. This was just about releasing two detainees- the core question became:
Was Yahya Khan's martial law legal in the first place?
ii. For the first time, the Supreme Court had to revisit its own mistake in the Dosso case and decide whether a military takeover could ever be justified.
iii. The case was heard in 1972, after Yahya Khan had already stepped down and Bhutto's civilian government was in place- giving the judiciary a safer space to openly declare the pervious martial law illegal.
Key MCQs
1.Who filed the petition in the Supreme Court after High Courts dismissed it?
Ans: Asma Jilani
Explanation:
Asma Jilani filed the petition in the Supreme Court after High Court refused to entertain it.
2. What did the Supreme Court state regarding Pakistan's status in this case?
Ans: Pakistan was not a foreign country invaded or occupied by an army.
Explanation:
The Court clarified that Pakistan was neither invaded nor occupied- it upheld the constitution as supreme over martial law.
3. Why was Yahya Khan's martial law deemed unconstitutional?
Ans: Because martial law could not legally arise under those circumstances.
Explanation:
It was argued that martial law had no lawful basis given Pakistan's own legal framework, including the Quran and Objectives Resolution.
4. What was the judgment regarding the "continuance in force" order of 1958?
Ans: Left validity of judicial decisions conditional upon FCR
Explanation:
The Supreme Court held that the 1958 order established a new legal order and that the Federal Capital Rules (FCR) remained in force for determining law and judicial decisions.
5. What did the Court decide regarding the precedent set in State v. Dosso?
Ans: Unjustified
Explanation:
The Supreme Court overruled State v. Dosso, rejecting the doctrine of necessity and Hans Kelsen's theory, emphasizing the supremacy of the Constitution.
6. Which Martial Law Regulation number was used for the detention challenged in this case?
Ans: MLR No.78
Explanation:
The detentions of Malik Ghulam Jilani and Altaf Gauhar were made under Martial Law Regulation No.78, 1971.