The Asma Jilani case 1972, is a landmark judgement in the constitutional history of Pakistan that reaffirmed the supremacy of the constitution over martial law.
The case was filed by Asma Jilani and Zarina Gohar in 1972, while the judgement was delivered by the Supreme Court of Pakistan. It is legally noted with the citation “PLD 1972 SC 139.”
During the governance of General Yahya Khan, both petitioners questioned the detention of their family members under Martial Law Regulation (MLR) No. 78 of 1971.
The legal question that was raised: “Was martial law imposed by General Yahya Khan valid?”
Read on to explore the Supreme Court’s verdict and how it reshaped the constitutional future of Pakistan.
Background of Asma Jilani Case
On 24th March 1969, President Ayub Khan wrote a resignation letter to the commander-in-chief, General Yahya Khan, and assigned him as the president. The next day, Ayub’s resignation was publicly announced through a radio broadcast, but it did not authorize Yahya Khan to impose martial law or to dissolve the constitution.
Nevertheless, President Yahya Khan suspended the constitution on 25th March, which is an act against constitutional sanction.
According to constitutional law, “The establishment of martial law is judicially invalid unless courts and civil administration are functional.”
In this context, Miss Asma Jilani, daughter of civil servant Altaf Gohar, filed a writ petition in the High Court of Punjab that questioned her father’s detention under Martial Law Regulation No. 78 of 1971 (martial law was discussed, as the detention happened due to Yahya Khan’s martial law). Similarly, Zarina Gohar, the petitioner and wife of Mr. Altaf Gohar, appealed in the Sindh High Court for her husband’s release under the reference of Article 98 of the 1962 Constitution.
Asma Jilani vs Government of Punjab – Case Details
Parties involved in the case
- Petitioners were AsmaJillani (Ghulam Jillani’s daughter) and ZarinaGauhar (AltafGauhar’s wife).
- Respondents were the Lahore High Court and the Sindh High Court.
Detention Story: Asma’s father, Malik Ghulam Jilani, was arrested under Martial Law Regulations on 22nd December 1971, and his writ petition was fixed on 31st December in Lahore High Court.
On the other hand, Zarina Gohar challenged her husband’s detention in the Sindh High Court. Both detainees were arrested without a formal trial.
Procedural history: Both high courts rejected the petitions, citing Order No. 3, PCO (Provisional Constitution Order), 1969, which barred courts from considering any legal dispute regarding martial law actions.
Petitioners then approached the Supreme Court of Pakistan, seeking enforcement of fundamental rights under Article 184(3) of the 1962 constitution.
The core legal questions that the PLD 1972 SC 139 raised before the Court:
- Did high courts have jurisdiction to review detentions under MLR-78 after the 1969 order?
- Is Dosso’s doctrine (successful revolution = new legal order) still valid?
- Can a military regime proclaim martial law and lawfully suspend the Constitution?
Government’s argument
Kelson’s theory validates martial law when it does not affect constitutional laws, and the public accepts this revolution; then it is recognized as a new legal order. Thus, the martial law imposed by Yahya Khan was justified by the government.
The Dosso case precedent also validates military takeover under the Doctrine of Necessity.
Asma Jilani vs Government of Punjab
Dispute Summary: Petitioners argued that the proclamation of martial law was unconstitutional and detentions were illegal.
On the other hand, the government of Punjab referred to the Kelson theory and the Dosso precedent to justify Yahya Khan’s regime.
AsmaJilani Case Judgment Summary
The following points describe the AsmaJilani case judgment summary:
- The supreme court overturned the Dosso Case (PLD 1958 SC 533), which had previously validated extra-constitutional takeovers. It further stated that the Kelson-based principle is no more sustainable for treating current legal disputes.
- The proclamation of martial law does not abrogate the civil law, nor does it authorize the Commander-in-Chief to suspend fundamental rights unless there is a temporary emergency.
- It reaffirmed the jurisdiction of high courts, concluding that Yahya Khan certainly retained “de facto” control, but there was no “de jure” government near the municipal courts. Therefore, his orders or PCOs cannot be judicially upheld.
- The Supreme Court declared both detentions under MLR-78 as illegal and void, having no legal effect.
- It stated that Pakistan is not a foreign country or an alien territory invaded by any army , but a democratic state having a constitution as its superior law. In this light, martial law imposed by Yahya Khan was dissolved.
Impact of AsmaJilani Case on Martial Law
The impact of Asma Jilani case on martial law fundamentally altered the constitutional position in Pakistan. In contrast with the Dosso case that validated martial law through the doctrine of necessity, this case challenged the military rule’s supremacy as unconstitutional.
The Supreme Court reaffirmed that no authority, including the military, could suspend or abrogate the Constitution; hence, it declared Yahya Khan a “usurper.” This judgement restored the supremacy of the constitution over all organs of the state.
By rejecting the absolute external powers, it also reinforced the jurisdiction of courts. The Asma Jilani case 1972 became a cornerstone in ensuring judicial independence and civil security in Pakistan’s constitutional framework.
Establishing a strong model, it significantly cut down on future military interventions. In the context of the Asma Jilani case, the State vs. Zia-ul-Rehman case (PLD 1973 SC 49) discussed “Objective Resolution” as unalterable and immutable, ensuring constitutional supremacy over Kelson’s theory.
Significance of Asma Jilani Case in Constitutional Law
The Supreme Court judgement marks the significance of Asma Jilani case in constitutional law. It confirmed that the constitution is the supreme law of the land and cannot be undone by any authority. The judgement of the Supreme Court not only restored public confidence in the judiciary’s role but also built clear boundaries on executive and military powers.
Key Points of Significance
- Strengthened the rule of law by opposing the arbitrary power to overrule constitutional provisions.
- Authorized the courts to review actions of all authorities, including the military, by dissolving the PCO orders of 1969.
- Ensured constitutional supremacy by confirming that the Constitution is the supreme law of the land.
- Rejected the Kelsenian theory by making municipal law and the “Objectives Resolution” the legal framework for the constitution.
- Reduced future military interventions and set a precedent for similar debates in the future.
Frequently Asked Questions
Q1: What is the citation of the AsmaJilani case?
The Asma Jilani case is legally cited as “PLD 1972 SC 139,” meaning that the case is reported in the Pakistan Law Decisions series, starting from page 139, and the Supreme Court delivered the judgement in 1972.
Q2: Why is the AsmaJilani case 1972 considered a landmark judgment?
The Asma Jilani case set a precedent in the constitutional history of Pakistan. It dissolved the military rule, adding that no authority can impose martial law over the constitution unless the situation is beyond the control of civil administration.
Q3: What was the difference between the Dosso Case and the Asma Jilani Case?
The Dosso case had previously validated the martial law through the doctrine of necessity; this case overturned the Dosso case and reaffirmed the supremacy of the constitution over martial law.
Conclusion
The Asma Jilani case 1972 served as a turning point in Pakistan’s legal and constitutional history. It strengthened the rule of law and declared the imposition of martial laws by any individual or regime as illegal.
Eventually, the legacy of this case restored the jurisdiction of high courts and still continues to guide current constitutional affairs.
