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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Thursday, February 03, Asma Jilani Vs Govt. Important Case decided By SC. The further question was whether the doctrine enunciated in the case of State v. Cwse proceeded on the basis of certain assumptions, namely: These assumptions were not justified.
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, nor did Kelsen ever attempt to formulate any theory which “favours totalitarianism”. Kelsen was only trying to lay down a pure theory of law as a rule of normative science consisting of “an jilahi or system of norms”. He was propounding a theory of law as a “mere jurists’ proposition about law”.
He was not attempting to lay down any legal norm or legal 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. Kelsen’s attempt to justify the principle of effectiveness from the standpoint of international law cannot also be justified, for, it assumes “the primacy of international law over national law.
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.
Asms 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 jilwni to be able to claim to represent the State. This proposition does not find support from any principle or international law. 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. This has not been abrogated by any one so far, nor has this been departed or deviated from by any regime, military xsma civil. Indeed, it cannot be, for,! Say, ‘O Allah, Lord of sovereignty. Thou givest sovereignty to whomsoever Thou pleasest ; and Thou takest a Nay sovereignty from whomsoever Thou pleasest. Thou exaltest whomsoever Thou pleaaest and Thou abasest whomsoever Thou pleasest.
The functional Head of the State is chosen by the community and has hilani be assisted by a Council, which must hold its meetings in public view and remain accountable to public. Cade is under this uilani that the Government becomes a Government of laws and not of men, for no one is above the law. It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system “the law rules through the utterance of justice, and the power of the Governor carries out the utterance of it.
The aema 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. Now to judge the validity of the events that took place on and from the 24th of March He did not even proclaim Martial Law.
Under Article 12 of the 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.
Under Article 30 the President could also proclaim an emergency if the security or economic life of Pakistan was threatened by internal disturbances beyond the power of a Provincial Government to control and may be for the present purposes that he could also proclaim Martial Law if the situation was not controllable by the civil administration.
Martial Law, in the present times in England, has acquired various senses. In this sense this branch of Martial Law is now better known as “military law” and is in time of peace enforced under various statutes, such as the Army Act, the Navy Act and the Air Force Act. In International Law Martial Law means the powers of a military commander in war time in enemy territory as part of the jus belli.
Asma Jilani Jahanghir (Member 1952-2018)
In this sense as the Duke of Wellington once said in the House of Lords it is “neither more nor less than the will of the General who commands the army”.
We must distinguish clearly between Martial Law as a machinery for the enforcement of internal order and Martial Law as a system of military rule of a conquered or invaded alien territory. Martial Law of the first category is normally brought in by a proclamation issued under the authority of the civil Government and it can displace the civil Government only where a situation has arisen in which it has become impossible for the civil Courts and other civil authorities to function.
The Imposition of Martial Law does not of its own force require the closing of the civil Courts or the abrogation of the authority of the civil Government. From the examination of the various authorities on the subject one is 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 would be paradoxical indeed if such a result could flow from the invocation in the aid of a State of an agency set up and maintained by the State itself for its own protection from external invasion and internal disorder. 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.
Asma Jilani Vs Govt. of the Punjab – CSS Forums
Per Yaqoob Ali, J. If a rebel Government has succeeded in gaining effective control over people and territory the other States may recognize it. But will the same rule apply to the municipal Courts. Pakistan claims that East Pakistan is a part of Pakistan, but a. On these facts if a dispute arises involving the determination whether the new Government of East Pakistan is de jure, will the municipal Courts of West Pakistan confer recognition on it, because a victorious revolution is a legal method of changing the Constitution and the new order has become efficacious as the individuals whose behaviour the new order regulates actually behave by and large in conformity with new order.
The answer is obvious. Yahya Khan’s Government, therefore, remained de facto and not de jure up to 20th Decemberwhen he stepped aside. This is in the realm of a theory and not a part of the national legal order of any State. No municipal Court will, therefore, rely on it as a rule. It is a statement of jjlani by Mr. Kelsen to which jialni large number of jurists have taken exception.
What Kelsen has said about the legitimacy of norm and legal authority of a revolutionary Government ijlani be read separately and not mixed up. While revolution may destroy the casee national legal order because after the change the reality of the State has, disappeared from behind that order, it does not follow that the legal order, which replaces it, is the expression of the superior will of one or more revolutionaries who staged victorious revolution or successful coup d’etat.
This is explained by Kelsen himself in the remark, that “the efficacy of the jilxni legal order is a awma condition for the validity of every single norm of the order. A conditio sine qua non, but not a conditio per quam. The efficacy of the total legal order is a condition, but not the reason for the validity of its constituent norm.
These norms are valid not because the total order is efficacious, but asmq they are created in a constitutional way. Every single norm of the new legal order will be valid not because the zsma is efficacious, but because it is made in the manner provided by the constitution of the State.
Kelsen, therefore, does not contemplate an all omnipotent President and Chief Martial Law Administrator sitting high above the society and handing its behests downwards.
No single man can give a constitution to the society which. It must, therefore, embody the will of the people which is usually expressed through the medium of chosen representatives. It must be this type of constitution from which the norms of the new legal order will derive their validity. If this appraisal of Kelsen is correct, aama the decision in the case State v. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper; he should be tried for high treason and suitably punished.
Legal theorists have spent a great deal of time and energy in elucidating the concept of casf.
List of cases of the Supreme Court of Pakistan
Some Continental jurists think caase them as dictates of reason, others as commands, cae others would have us believe that whatever is habitually obeyed is law. Even the American jurists are not unanimous. Justice Cardoso makes an exception in the case of statutes, in so far as they are clear, and precedents which are clearly in point.
Jerome Frank on the other hand thinks that Gray’s view is not sufficiently radical. The task of a Judge in the circumstances, is not an easy one. But is it necessary for him to define law? Law itself is not a legal concept, for, what is law is really a theoretical question. Conclusions of law do not depend upon the definition of law nor are legal judgments based on definitions of law and, in fact, as Sir Ivor Jennings has said in his Article on the Institutional Theory published in Modern Theories of Law, Oxford University Press.
It is, therefore, for the Courts to lay down what ‘law’ is, and if any decree, or behest of Yahya Khan expressed as a Martial Law Order, Martial Law Regulation or Presidential Order or Ordinance, does not conform to the meaning of the term ‘Law’ in Article 2 of the Constitution of Pakistan these Regulations, Orders and Ordinances will be void and of no legal effect.
In introduction to “Law in the Making” C. Kilani mentions two antithetic conceptions of growth of law: It is impossible in every form of society governed by law to disengage and personify a “sovereign” as thus understood, with the artificial precision which Hobbes and Austin assume.
Salmond describes “law” as body of principles recognised and applied by the State in the administration of justice as the rules recognised and acted upon by Courts of justice. All the theories of law are at one in viewing law as consistent of rules. Such rules are regarded by natural law as dictates of reason, to positivism as decrees of the sovereign and by realism as the practice of the Courts.
The central notion of ji,ani natural law theory is that there exist objective moral principles which depend on the essential nature of the universe and which can be discovered by natural reason, and that ordinary human law is only truly law in so far as it conforms to these principles. These principles of justice and morality constitute the natural law which is valid of necessity, because the rules for human conduct are logically connected with truths concerning human nature.
Diametrically opposed to the theory of natural law is the positivist or imperative theory of law. It seeks to define law not by reference to its condition. It is a type of command, it is laid by a political sovereign and is enforceable by sanction.
Realism, like positivism, looks on law as the expression of asmx will of the State as made through the medium of asa Courts. According to Holmes law is really what the Judge decides.
List of cases of the Supreme Court of Pakistan – Wikipedia
This great American Judge sowed the seed of the American realism in a famous paper in which he put forward. If one wishes to know what law is, he jialni, one should view it through the eyes of a bad man, who is only concerned with what will happen to him if ijlani does certain things. The prophecies of what the Courts will do to the bad man, in the opinion of Justice Holmes, is what he means by the law. In “A Grammar of Politics” Laski adds: We are urging that law is, in truth, not the will of the State, but that from which the will of the State derives whatever moral authority it may possess.
It assumes that the rationale of obedience is in all the intricate facts of social organisation and in no one group of facts. It denies at once the sovereignty of the State, and that more subtle doctrine by which the State is at once the master and the servant of law by willing to limit itself to certain tested rules of conduct. It insists that what is important in law is not the fact of command, but the end at which that command aims and the way it achieves the end.
Pakistan is an Islamic Republic. Its ideology is enshrined in the Zsma Resolution of the 7th Aprilwhich inter alia declares “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 Quran and Sunnah”.
We should, therefore, turn more appropriately to Qsma Jurisprudence for the caee of “Law”. One method of jilaani “Law” is to know its source.