Mr. Zulfikar Ali Bhutto and 10 other leaders of the Pakistan Peoples Party were arrested on 17 September 1977 and detained in prisons under Martial Law Order No.12 of 1977. Begum Nusrat Bhutto, the wife of Mr. Zulfikar Ali Bhutto challenged their detention in the Supreme Court of Pakistan by filing a Constitutional Petition under Article 184 (3).
The Supreme Court dismissed the petition unanimously as not being maintainable for the following reasons:-
(i) Asma Jilani did not render illegal the successive governments and constitutions framed thereafter.
(ii) Madzimbamuto, 3 All E.R. 561 cannot be regarded as judicial authority for the proposition that effectualness of new regime provides its own legality; considerations of morality and justice cannot be excluded from the concept of law and legality.
(iii) Kelsen’s pure theory of law is not universally accepted, and is not consistent for full application in all revolutionary situations coming before courts for adjudication as to validity of new legal orders resulting from such revolutions. The theory is open to serious criticism on the ground of excluding from consideration sociological factors of morality and justice. Legal consequences of an abrupt political change by imposition of Martial Law have to be judged not by application of an abstract theory of law in vacuum but by consideration of total milieu preceding the change, i.e. objective political situation prevailing at time, its historical imperatives and compulsions, motivations of persons bringing in change and extent of preservation of suppression of old legal order. The theory has no relevance where breach of legal continuity is admitted or declared to be of a pure temporary nature and for a limited specific purpose because such phenomena is one of theory to such transient and limited change in the constitutional continuity of a country is inappropriate.
(iv) Asma Jilani is not applicable to the facts of the present case and the Principles of State necessity enunciated in the Reference by the Governor General, P.L.D. 1955 F.C. 435 will have to be invoked for solving the present constitutional deadlock.
(v) There were allegations of widespread and massive interference with sanctity of ballot by Government officials in favour of candidates of the ruling party and consequently there was national wave of resentment giving birth to country wide protest agitation. The disturbances got out of control of civil armed forces and resulted in heavy of life and property. The troops were called by the Federal Government and local Martial Law had to be imposed in several important cities. Local Authorities of smaller towns requisitioned military assistance. The rigging of the elections and the official interference with elections was proved by the judicial decisions. The Chief Election Commissioner made public statements ratifying widespread allegations made by the opposition regarding official interference with elections and endorsing their demand for fresh elections. The demand for resignation of the Prime Minister and for fresh elections continued unabated. Despite Prime Minister’s dialogues with the opposition parties and temporary suspension of movement, the officials charged with maintenance of law and order continued to be apprehensive of terrible expansion beyond the control of Civil Authorities in the event of a failure of talks. The talks between Prime Minister and the opposition parties leaders on the basis of his offer of holding fresh elections dragged on for various reasons and ultimately the opposition parties insisted on 9 or 10 points being yet to be resolved and the Prime Minister also stated that his side would similarly forward another 10 points if the opposition failed to ratify accord allegedly reached earlier. The Punjab Government, during crucial days of deadlock, sanctioned distribution of fire arms licences on a vast scale to its party members and the Special Assistant to the Prime Minister deliberately made provocative statements. The normal economic, social and educational activities got seriously disrupted as a result of the agitation and incalculable damage was caused to the nation and the country. The constitutional and moral authority of the Prime Minister to rule the country stood seriously eroded and his government found it difficult to maintain law and order to run ordinary administration and to keep open educational institutions and to ensure normal economic activities. Situation deteriorated to such an extent that the Services Chiefs themselves felt the necessity of making a declaration of loyalty to the government so as to boost up Prime Minister’s authority to help restore law and order but even such a declaration did not have any visible impact on the momentum of agitation. The constitutional authority of the Prime Minister and his federal ministers as also of provincial government was repudiated on a large scale throughout the country. The representative character of the national and provincial assemblies was not accepted by the people at large, and serious political crisis lead to breakdown of constitutional machinery concerning the executive and legislative organs of state. For such a situation no solution was provided by the constitution and therefore the Armed Forces of the country in such eventuality intervened to save the country from further chaos and bloodshed to safeguard integrity and sovereignty of the country and to separate warring factions. The step though extra-Constitutional yet obviously dictated by highest consideration of state necessity and welfare of people and the consequent imposition of Martial Law was welcome by almost all sections of the population. So the Chief martial Administrator took over administrator only for a short time to arrange for fresh elections at shortest possible time and assured the people to hand over the government to the chosen representatives of the people and persuaded the people and judges of the Supreme Court to willingly accept such interim arrangements. The new arrangements dictated by consideration of state necessity and welfare of the people acquired its effectiveness owing to its moral content and promise of restoration of democratic institutions and was therefore justified on the basis of doctrine of necessity.
(vi) The question of considering application of the doctrine of necessity did arise in this case since the court was not persuaded by arrangement that military intervention provided its own legality simply for the reason of its being accepted by the people and becoming effective. The old constitution even if assumed to be completely destroyed or suppressed, the judicial concept and notions of morality and justice nevertheless were not destroyed though the new legal order did not mention anything about them. The laws (Continuance in Force) Order, 1977 clearly mentioned that the country shall be governed as nearly as may be in accordance with the constitution of 1973 and all laws for the time being in force shall continue to be in force which is indicative of an intention of the new regime not to destroy legal continuity of the country as distinguished strictly from the constitutional continuity.
(vii) If power is assumed in an extra-constitutional manner by an authority which is not mentioned in the constitution, it does not always amount to usurpation of power. Question must be determined in the light of circumstances of a particular case coming before the court.
(viii) The doctrine of necessity and the principle embodied in the maxim salus populi est supreme lex is accepted not only in the Islamic jurisprudence but in other systems as well.
(ix) The true position emerging out of the facts of the case and the law applicable thereto is that the 1973-Constitution still remains the supreme law of the land, subject to the condition that certain parts thereof have been held in abeyance on account of State machinery. The President of the Pakistan and the Supreme Courts continue to function under the Constitution. The mere fact that the judges of the superior Courts have taken a new oath after the proclamation of Martial Law, does not in any manner derogate from the position, as the Courts had been originally established under the 1973-Constitutional, and have continued in their functions in the spite of the Proclamation of Martial Law. The Chief Martial Law Administrator, having validly assumed power by mean of an extra-Constitutional step, in the interest of the State necessity and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures when have been consistently recognised by judicial authorities as falling within the scope of the law of necessity, namely-
a) All acts or legislative measures which are in accordance with, or could have been made under the 1973-Constitutuion, including the power to amend it;
b) All acts which tend to advance or promote the good of the people;
c) All acts required to be done for the ordinary orderly running of the state; and
d) All such measures as would established or lead to the established of the declared objectives of the proclamation of Martial Law, namely, restoration of law and order, and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of restoration of democratic institutions under the 1973-Constitution.
These acts, or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial law Regulations, or orders, as the occasion may require.
The Superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities, if challenged, in the light of the principle underlying the law of necessity as stated above. Their powers under articles 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance.