Important Case decided By SC. P L D Supreme Court Present: Hamoodur Rahman, C. J., Muhammad Yaqub Ali, Sajjad Ahmad, Waheeduddin Ahmad. There have been a lot of important and leading cases in the history of Pakistan. Asma Jilani vs Government of the Punjab case is one of them. What is the grudge-Nazi informer case? • Riggs v Palmer, Re Sigsworth case. • Kelson in Pakistani courts??? • Dosso v. State,. • Asma Jilani v. The Government .
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Case Law Asma Jilani vs Federation of Pakistan
Asma Jilani vs Government of Punjab. The judgment in State jilabi. Sovereignty, in any sense, is constituted by consent, the development of the habit of obedience, and by that alone.
Court in which Petition filed. Hunter U S The Military Commander did not takeover the reins of Government by force nor did he oust the constitutional Asmq. Principle laid down in State Vs Dosso. Under Article 12 of the Constitution he could resign his office by writing under his hand addressed to the Speaker asmaa 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.
In the result, therefore, I would allow both these appeals and declare both the impugned orders of detention to be void and without legal effect: The Court arrived at this result by reading Article 2 4 with Article 4 1 of the Order and by holding that after the promulgation of that Order Part 11 of the late Constitution had ceased to be available to adjudge the invalidity of the laws that were in force immediately before the Proclamation.
This is a right which has consistently been claimed by Supreme Court and other Courts jilnai superior jurisdiction in all civilised countries. Protection was also purported jliani be given to the acts of all Martial Law Administrators and their subordinates acting under their orders to save them from the consequences of their otherwise illegal acts.
The Constitution provided for a federal Government with equal representation of peoples of both the Wings in the National Assembly Article The Court held that after the coming into force of that Order no law could be declared or held to be void merely because it came into conflict with a fundamental right and that all pending applications for writs in which a law by reason of Part II of the Constitution had to be found to be void in order to grant the relief prayed for by a party had abated by force of clause 7 of Article 2 of that Order.
These are indeed very extraordinary powers for taking away the most cherished right of a citizen in a most arbitrary manner. A great part of the old legal order remains valid also within the frame of the new order. If the argument is valid that the proclamation of the Martial Law by itself leads to the complete destruction of the legal order, then the armed forces do not assist the State in suppressing disorder but actually create further disorder, by disrupting the entire legal order of the State.
There have been a lot of important and leading cases in the history of Pakistan. It assumes that the rationale of obedience is in all the intricate facts of social organisation and in no one group of facts. As observed in Halsbury’s Laws of England, Third Edition, Volume 22 at pageparagraph”the supreme appellate Court will, however, not shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside a statute and outside the common law, when no title and no contract will be shaken, no person can complain, and no general course of dealing be altered by the remedy of a mistake; and, where the course of practice is founded upon an erroneous construction of an Act of Parliament, there is no principle which precludes, at any rate that tribunal, from correcting the error, although the construction of a statute of doubtful meaning, once laid down and accepted for a long period of time, ought not to be altered unless the House of Lords can say positively that it is wrong and productive of inconvenience.
Kelsen to which a large number of jurists have taken exception. Pakistan had its own legal doctrine-The Qur’an, and the. We have also discovered that no set practice was followed during this period for even Ordinances were made in the purported exercise of powers under the Proclamation and all other powers vested in that behalf in the President and the Chief Martial Law Administrator and were signed by the person concerned under the description of “President and Chief Martial Law Administrator”.
The rule of stare decisis does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict adherence to the rule. On July 31,The Supreme Court of Pakistan declared the steps taken on November 3, by former president Pervez Musharraf as illegal and unconstitutional under the Article of the Constitution.
If this be so, then from where did General Agha Muhammad Yahya Khan acquire the right to assume control of the reins of Government?
Iskander Mirza who had become the first President by a Proclamation issued on the 7th Octoberabrogated the Constitution; dissolved the National and. Retrieved 18 April This can only mean the ordinary criminal Courts, for, no other machinery is provided for punishment In the case of such contravention. All his actions were also declared illegal. 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.
Asma Jilani Vs Govt. of the Punjab – CSS Forums
No question was raised in this case as to the validity of the Martial Law or of the Provisional Constitution Order. The further question was whether the doctrine enunciated in the case of Jilanl v. Proclamation of Martial Law. This too has to be quoted in extenso.
Asma Jilani’s case paved the way for the restoration of democracy. The learned Chief Justice was, therefore, clear about the legal status of the Chief Administrator of Martial Law and since his interpretation was accepted the Order of was issued In the name of the President. They had not only de facto validity but also acquired de jure validity by reason of the unquestioned recognition extended to them by the Court of highest jurisdiction in the country.
Per Yaqoob Ali, J. White 7 Wallace ; Horn v.
It would be paradoxical indeed if such a result could flow from the invocation in the aid of a State of any agency set up and maintained by the State itself for its own protection from external invasion and internal disorder. Pakistan was faced with innumerable difficulties from the very start. And they have been so deprived not only de facto but also de jure.
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.
The High Court had granted them those reliefs and appeals against the said orders filed in the Supreme Court by the Jiilani were pending decision. The question of imposition of “military rule” as an incident of jus jjilani of international law could not, in the circumstances, possibly have arisen.
Dosso, PLD S. They are contained in the Holy Qaran, and Hadith, namely, precepts and actions of the Holy Prophet, peace be upon him.