ASMA JILANI CASE PDF
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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On 24 Novembera seven panel bench of newly constituted supreme court, after imposition of PCO, validated the imposition of emergency and the promulgation of the Provisional Constitution Order issued by the Chief of the Army Staff.
In Pakistan to the superior Courts gave judgments which became precedents. This was followed three days later by the promulgation of the Laws Continuance in Force Order on the 10th of October On the 23rd DecemberMiss Asma Jilani, filed a habeas corpus petition under Article ji,ani 2 b i of the Constitution of questioning the detention of her father on more than one ground. 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.
List of cases of the Supreme Court of Pakistan – Wikipedia
Indeed, it has been pointed out that Professor Lauterpacht in his Article on Kelsen’s Pure Science of Law published in the Modern Theories of Law, Oxford University Press,goes to the extent of describing Kelsen as “an iconoclast” amongst jurists. Asma Jilani vs Government of Punjab In the famous case of Asma Jilani, a detailed history of the Martial law in the British days has been mentioned and its comparison has been made with the past days.
He too supports the theory that an “abrupt disruption of a legal order” may well be characterised as a revolution, no matter what the motive or the means jilano, peaceful or violent, if it in fact annuls the existing order and “the annulment is effective.
The order passed by Mr. Maulvi Tamizuddin Khan and Doctrine of necessity.
Dosso set the seal of legitimacy on the Government of Iskander Mirza though he himself was deposed from office by Muhammad Ayub Khan, a day after the judgment was delivered on the 23rd Octoberand he assumed to himself the office of the President. 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. On that assumption the Laws Continuance in Force Order, however transitory or imperfect it may be, is a new legal order and it is in accordance with that aasma that the validity of the laws and the correctness of judicial decisions has to be determined.
We should, therefore, turn more appropriately to Islamic Jurisprudence for the definition of “Law”. No single man can give a constitution to the society which.
Asma Jilani vs Government of Punjab | Muhammad Akkas Akhtar –
The initial hypothesis, if a hypothesis is necessary, therefore, still remains, even under the theory of Kelsen, the ultimate will of the people as manifested by their habitual submission and not, as suggested in Dosso’s case, the success of the revolution. As observed in Halsbury’s Laws of England, Third Edition, Volume 22 at pageparagraph”the supreme appellate Court will, however, not shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside a statute and outside the common law, when no title and no contract will be shaken, no person can complain, and no general course of dealing be altered by the remedy of a mistake; and, where the course of practice is founded upon an erroneous construction of an Act of Parliament, there is no principle which precludes, at any rate that tribunal, from correcting the error, although the construction of a statute of doubtful meaning, once laid down and accepted for a long period of time, ought not to be altered unless the House of Lords can say positively that it is wrong and productive of inconvenience.
Kelsen in his attempt to evolve asms pure science of law as distinguished cxse a natural science attached the greatest importance to keeping law and might apart. This is a right which has consistently been claimed by Supreme Court and other Courts of adma jurisdiction in all civilised countries. The Martial Law introduced by him was illegal and, therefore, even as Chief Martial Law Administrator he was not competent to validly pass such laws, and it certainly was in excess of the implied authority, if any, given to him by the letter of Field Marshal Muhammad Ayub Khan dated the 24th of March No municipal Court will, therefore, rely on it as a rule.
If the grand jury did not indict such a detained person then the local Civil Judge could order the military authorities to bring the man before the Court for hearing and discharge. Brohi on the other hand, is prepared to concede only this much that an usurper may be given the limited power of acting within the framework of the Cas, but nothing beyond that.
On the 15th April Following are the Principles of law or Rule of law.
Asma Jilani Jahanghir (Member 1952-2018)
Even the disciples of Asmz have hesitated to go as far as Kelsen had gone. Dosso was correct, 2 even if correct, whether the doctrine applied to the facts and circumstances in which Field Marshal Ayub Khan transferred power to General Agha Muhammad Yahya Khan, and 3 if the source of power assumed by General Agha Muhammad Yahya Jiilani was illegal and unconstitutional then whether all legislative and executive acts done by him including the imposition of Martial Law and the promulgation of Martial Law Regulations and Orders were illegal.
So the detention of these persons were challenged in Lahore and Karachi High Court respect. 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.
On the proclamation of such a state of siege the constitutional guarantees become suspended and the Government of the affected area is temporarily placed under the control of the military. Kelsen’s attempt to justify the’ principle jilnai effectiveness from the standpoint of International Law cannot also be justified, for, it assumes “the primacy of International Law over National Law.
If a rebel Government has succeeded in gaining effective control over people and territory the other States may recognize it. Thereafter, only on the 4th of April a Provisional Constitution Order was enacted whereby the Constitution ofwas by and large restored, and it was provided that the country was to be governed as nearly as may be in accordance with its terms subject to the Proclamation of Uilani Law and subject to any Regulation or Order that may be made from time to time by the Chief Martial Law Administrator Vide Article 3 1.
Pakistan was faced with innumerable difficulties from the very start. The High Court admitted the petition for regular hearing and issued notice to the Government of the Punjab for the 31st of December The de facto sovereign, according to Garner, could become de jure only “by election or zsma by the people.
Yahya Khan’s Government, therefore, remained de facto and not de jure up to 20th Decemberwhen he stepped aside.
The decision in Dosso’s case is now, according to him, the legal order and that has to be followed. On the other hand, Laski’s thesis appears to me to be that the control of the armed forces of the State is an essential element of the sovereignty of the State and that the armed forces are under the command of the State.