Case law Nusrat bhutto vs COAS 1977
Begum Nusrat Bhutto vs Chief of Army staff and Federation of Pakistan (PLD 1977 SC 657)
|General Zia ul haq Former COAS|
|Begum Nusrat Bhutto|
A petition under Art. 184(3) of the Constitution of Mr. Zulfrqar 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.
The petition states that Mr. Zulfrqar 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 leveled 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.
PETITIONER’S ARGUMENTS BY YAHYA BAKHTIAR
The counsel argued:
l. Relying on Asma Jilani’s Case.
2. Chief of the Army Staff had no authority under 1973 Constitution to impose Martial Law in the country.
3. Such action covered by Art 6 of the Constitution of 1973 for the Constitution was still the Supreme Legal instrument even the CMLA himself had not abrogated it but merely suspended it.
4. Order of detention is the violation of the Fundamental Rights of the detenues, particularly under Articles 9, 10, 17 and 25.
STATE ARGUMENTS BY A.K. BROHI
The counsel argued:
(1) Arguments based on the Judgment of Dosso’s Case.
(2) By proclamation of Martial Law on 5th of July, 1977, a new legal order came into force and the Constitution of 1973 successfully suspended.
(3) The new grund-norm of the country was the Laws Continuance in Force Order.
(4) The Military coup is a meta legal or extra constitutional fact which attracts the doctrine of “revolutionary legality”. This kind of change is called the Revolution.
(5) If all institutions of State power have accepted the existence of the new legal order which have become effective then all questions of legality and illegality have to be determined within its framework.
(6) As fresh elections were imminent so Martial Law was only a bridge to enable the country to return to the path of Constitution Rule.
Kelson’s Theory that a successful revolution satisfies the test of efficacy and becomes a basic law creating fact is not universally accepted and it has not been found consistent for full application in all revolutionary situations coming before court for adjudication as to the validity of new Legal Orders resulting from such revolutions.
Kelsen’s Theory is open to serious criticism on the ground that by making effectiveness of the political change as the sole condition of morality of its legality, it excludes from consideration sociological factors 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 ground-norm has an ethical background, insofar as 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 Quran 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.
STATE NECESSITY AND WELFARE OF PEOPLE:
Widespread allegations of massive interference with sanctity of ballot by Government officials in favor of candidates of ruling party, national wave of resentment giving birth to country-wide protest agitation, disturbances getting out of control of civil Armed Forces and resulting in heavy loss of life and property; calling out of troops by Federal Government, consequence imposition of Local Martial Law in several important cities; requisitioning of military assistance by local authorities in smaller towns and cities not having desired result, rigging and official interference with elections in favor of ruling party candidates established by judicial decisions in some cases displaying general
pattern of official interference; public statements of Election Commissioner concerned ratifying widespread allegations of Opposition regarding official interference with elections and endorsing demand for fresh elections; Prime Minister in circumstances offering himself to Referendum but such offer not having any impact at all and demand for his resignation and for fresh elections continuing unabated plan resultantly dropped.
DOCTRINE OF NECESSITY:
The question of considering the application of the doctrine of 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 and 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 the legal continuity of the country, as distinguished strictly from the Constitutional continuity.
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