2. ASMA JILANI V. THE GOVERNMENT
OF PUNJAB,
PLD 1972 SC 139
TOPIC
3. Asma Jilani case is the one of those
important cases of the history which
proved landmark in the constitutional
history of Pakistan such as State Vs.
Dosso (1958), Begum Nusrat Bhutto
Vs. Chief of Army Staff (1977), Syed
Zafar Ali Shah Vs. Gen. Musharraf
(1999). In the case of Asma Jilani, a
detailed history of the Martial law is
mentioned.
4. FACTS OF THE CASE
• The case was in appeal in the
Supreme court
• Detention of Malik Gulam Jilani
and Altaf Gohar
• Martial Law imposed by Yahiya
Khan was being challenged
• The previous cases were decided
on Kelson Theory
• Pakistan is an Islamic state
where the sovereign is Allah
• Yahiya khan’s imposition of
martial law is an illegal action
5. MAJOR ISSUES
• Whether the doctrine of positive law
articulated in the case of State v. Dosso was
correct?
• If Yahiya Khan’s martial law is illegal then
how can it be said that the all of his acts taken
by him were legal?
• Limits to the Doctrine of Necessity The
doctrine of necessity cannot be used to scrap a
constitution or to repeal a part.
6. The Key Points raised in the Discussion were:
• Detention of Mr Ghulam Jilani and Altaf Gohar
• Marshal law imposed by Yahiya Khan
• The Constitution
• Kelson’s Theory
• Objective Resolution
• Doctrine of condonation
• Question of legality
7. • The detention of
Malik Ghulam
Jilani and Althaf
Gohar had been
made under the
Martial Law
Regulation No.78
of 1971.
• The Marital was
imposed by
Yahiya khan
8. Kelsen Theory
Kelsen Theory of grund-norm was also under
the discussion because previous decisions like in
Dosso’s case were based upon this theory.
• Kelsen recognized that law must also
have a normative base.
• He calls that basic norm "the logical
constitution.
• The legtimacy of grundnorm makes the
legal system effective
9. Kelsen says 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
Constitution and Martial law
10. The Objective Resolution
• In Pakistan our grund-norm is
Objective Resolution
• We do not need to rely upon
western not generally
accepted theories
• For Muslims government is
the sacred trust of Allah
almighty
11. • Pakistan has its own
Grundnorm
• Law giver is Allah
• Law is Quran & Sunah
Objective Resolution says:
12. The Decision of the Court
• The appeal for detention of
Malik Ghulam Jilani was
dismissed
• The Supreme court declared
Yahiya Khan as usurper
• The Court declared his
action of imposition of
Martial law as illegal
Justice Hamood ur Rahman declared:
13. When Asma Jilani's
judgment was released,
Yahya khan was not in
power, but now it was
Bhutto's Martial Law and
Bhutto was the chief
Martial law Administrator
and the president. He was
ordered by the court to
remove the Martial law.
14. RATIONALE BEHIND THE DECISION
The reverse decision of court in
Asma Jilani case was based on the
Doctrine of stare diesis ----------
Flexible in its application Law
cannot stand still nor can the
Courts and Judges be mere slaves
of precedents.
15. Impacts of the Decision
• Bhutto was compelled to
remove the martial law
• The case was proved a fresh air
for the democracy
• Weaken the power of
dictatorship
• Reinforcement of objective
resolution
16. ANALYSIS
• The constitutional change must be reinforced with the
harmony of majority and minority of the country
• Efficacy of the revolution in the country cannot be
measured by any abstract theory
• The trend was set by the previous decisions of the court
that constitution is Grundnorm and it accepts the
revolution as in case State v Dosso
• In Asma Jilani case court did not rely upon Kelsenian
approach because it was failed to built a standard for all
legal systems
• In Pakistan the Grundnorm is Objective Resolution
• Which proved that no theory can dominate over Quran
and Sunah
