FACTS ABOUT ASMA JILLANI VS STATE CASE:

Some of the important facts about the case are as following:

Detention of Malik Altaf Gauhar and Malik Ghulam Jilani:
Altaf Gauhar who was the civil servant and Malik Ghulam Jillani was lieutenant general officer
and both were detained under Martial Law Regulation No. 78 of 1971.
Martial Law:
In this case the Martial Law was discussed as the detention was happened due to Yhaya Khan’s
Martial Law.
Petition filed in High Courts:
The two appeals were filed, one was filed by Miss Asma Jillani in Punjab High Court for the
release of her father Mr. Ghulam Jillani and by Mrs. Zarina Gauhar in Sindh High Court for the
release of her husband Mr. Altaf Gauhar under Article 98 of the Constitution of Pakistan 1962.
Dismissal of Petitions:
These Petitions were dismissed by the High Courts because the Courts are not allowed to
consider any Habeas Corpus Petitions under the Jurisdiction of Courts because Order no. 3 of
1969 barred the Courts from asking any question regarding the validity of any act done under the
Martial Law Regulation No. 78 of 1978.
Appeal in Supreme Court of Pakistan:
After the dismissal of petitions by High Court, Asma Jillani filed a petition in Supreme Court.
According to that Supreme Court stated that: “This country was not a foreign country which had
been invaded by any army with General Yahya Khan as its head, nor was it is an alien territory
which had been occupied by the said army.” And as Pakistan has its own constitution which is
superior to the martial law. So the orders issued by General Yahya Khan were considered illegal.
Objectives resolution
Objectives resolution on the point of “sovereignty belongs to ALLAH ALMIGHTY” and the
power exercised by the people should be according to the rules prescribed by Him. So the body
politics appointed by state becomes a trustee for practicing those rules and regulations.
Kelson’s Theory:
This theory given by Hans Kelson of Positivism helped in the judgment of Dosso’s case likewise
helped in this case too. As according to Kelson, “Law must also have a normative base. He calls
that basic norm "the logical constitution. It is the basic evaluative premise from which the
legitimacy or validity of all the laws derive
ARGUMENTS GIVEN BY STATE:
According to Kelson’s theory the Grundnorm can be a constitution.
The martial law should be accepted by the constitution.
Martial law is revolution and the acceptance of this change shows authority of Grundnorm .
As Kelson says in his theory that if there is no change in the constitution or the
Government with meta-legal means and ways and if there is no opposition resistant to this
change internally by the people plus no disturbances in the territorial integrity of the country,
then such a change is successful revolution and is recognized by the international law.
Thus the Martial law coup of 1958 was legalized by the Supreme Court under the Chief
Justiceship of Justice Munir
The Supreme Court held the Laws (continuance in force) order 1958 was the NEW LEGAL
ORDER and the validity of laws and the correctness in the judicial decisions would be
determined according to FCR.
The Supreme Court also held that as the 1956 constitution was abrogated therefore FCR 1901
was still in force in accordance with the laws (continuance in force) order, 1958
ARGUMENTS BY ASMA JILANI
1) Our country is not a foreign country which had been invaded by army.
2) Our country is not an alien territory which had been occupied by said army.
3) Martial law does not arises in circumstances martial Law is the imposition of direct functions
by a Government, especially in response to a temporary emergency such an invasion or major
disaster or in an occupied territory, and at that time there was no such circumstances and
therefor Yahya khan’s Martial law is illegal.
4) Kelson says the Grundnorm can be a constitution but party argues that Pakistan has its own
legal Doctrine QURAN, and the objective resolution therefore martial law was never superior to
constitution.
JUDGMENT:
During this appeal it was held that the rules laid down during State vs Dosso were unjustified. It
was decided in this appeal that courts gave full force to the 1962 constitution, and all laws made
and acts of different civil and military governments were lawful and legal because of the
recognition granted them by the 1962 constitution and courts. In this appeal it was held that the
judicial role of the court was t0 adjudicate on an real and present dispute brought before it by
litigant, and if the litigant did not want to raise a issue, it was not for the court to answer it suo
motu. In this appeal it was decided that mere involvement with the drafting of a law does not
disqualify a judge from reading the law in the light of the claims brought forward before him. In
this appeal, superior tribunals were found to be judges in their own jurisdiction. In that appeal it
was determined that the declaration of martial law by General Yahya Khan was unconstitutional.
While it was again pleaded doctrine of obligation to protect General Yahya Khan's military rule,
the same was denied by judgment of this appeal.
Importance of Democracy in Pakistan:
Democracy is the elected form of government that is selected by the population of people in a
particular state that controls the affairs of the country and lead. Pakistan is the country with
political system based on government that is selected. Pakistan is one of the youngest
democracies and is the largest democracy that is that is not liberal Democracy is the only form of
government which provides opportunity to choose according to their freedom. It gives freedom
of speech, live, decisions accordingly. It provides safe and fair duty of the executive. People
elected in the democracy are educated according to the requirement. They better know about the
political sciences and current affairs as compared to the other forms of the governments.it gives
people strength to move out and claim anything openly they want. If people think they are not
getting their rights properly, they can change the government anytime. Through the democracy,
human rights are preserved and mingled with the national legal system. If democracy is no
longer practicing then the human rights will be cobbled badly. Unfortunately, true meaning of
democracy has not been fulfilled by the government of Pakistan. Arguments regarding
democracy of Pakistan are theoretically favored but these do not work in current politics system.
There is a higher need to make the democratic system worth applicable in which public is
satisfied.