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University of Management & Technology
School of Law and Policy
Constitutional Developments in Pakistan
Name: Abdul Rub
Id: F2017117043
Submitted to: Professor Faiqa Ibrahim
Date: February 8th, 2021
Final Paper
Q: The Constitution of Pakistan ensures independence of Judiciary so that “Justice could
be dispensed in Pakistan.” Constitutional Courts have a vital responsibility and a role to
play in protection of the Constitutional and fundamental rights of the citizens of Pakistan.
In the light of this Constitutional responsibility and power bestowed upon the
Constitutional Courts:
a) Discuss the independence of judiciary under the coup d’etat, the status and
powers of Constitutional Courts working under the new legal order as per the
martial law order;
b) Discuss the context in which the doctrine of state necessity was introduced in
Pakistani Constitutional jurisprudence; and
c) Whether fundamental rights are upheld or kept in abeyance under coup d’etat?
Case law provided, which includes:
1. PLD 1955 FC 240
2. PLD 1955 FC 387
3. PLD 1958 SC 533
4. PLD 1972 SC 139
a) Pakistan has been through several coup d’etat or martial law orders. There have been
many ups and downs in the independence of judiciary, but there were major attempts to
deprive the judiciary of its constitutional powers. Many of such attempts have been
successful and many were not. We are going to discuss the powers of judiciary that stay
and the powers that leave with the arrival of a coup d’etat.
The judiciary is a supreme and independent institution in Pakistan, which has its
jurisdiction of powers, rules and regulations through the constitution and major
precedents of previous cases. The judiciary itself is institutionalized through the
constitution. Since we see that all powers bestowed upon the judiciary are provided by
the constitution, we have to ask the question whether what happens when that only source
of power is abrogated by a martial law.
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When a martial law is imposed a new form of governance is initiated in which all powers
are concentrated in an only individual. The essence of such governance lies in such 1
individual only, and that individual passes an order that is one of a kind, which includes
many provisions of the constitution, but also excludes many provisions of the
constitution. The point of this whole debate is that under such circumstances the judiciary
ends up with a very limited jurisdiction, it is not fully independent since its only source of
jurisdiction is partially abrogated by the dictator’s order. By reading all of the landmark
cases through the history of Pakistan, we find that the judiciary is being partial or being
biased in their decisions, sometimes because of the dictator’s order and some times due to
the influence of the dictator.
The status and powers of the judiciary are limited in such martial law rule that is by
depriving the judiciary of its inherent power of judicial review, by depriving the judiciary
of its main legal source, the constitution, which recognizes the judiciary in the first place.
The judiciary cannot fully apply the constitution in such dictatorship. The example of
such independence can be seen in 2 cases, the Dosso and Asma Jillani case. In the Dosso
case, the judiciary regarded the martial law as a peaceful revolution and decided several
cases according to the provision of the order passed by the dictator, because they were
bound by such order and could not decide anything not according to that order. In Asma
Jillani case since there was democratic system going on and no martial law was imposed
the judiciary was independent enough to reject the judgment of Dosso case, therefore
independent enough to reject the provisions of the formal Martial law administrator’s
order. The difference between these two cases was that in the first one a martial law was
active and the judiciary was working under the martial law order and in the second one a
democratic government and a proper constitutions.
So the judiciary works under the sources provided by whoever is the most powerful at the
time. In a democratic system the Constitution is the supreme law and in dictatorship the
dictator is the supreme law.
b) State of necessity is a doctrine, which declares that the country is at such stage that the
constitutional authorities are not working according to the constitution. The authority of
power is misused by different governmental personnel or institutions through corruption,
nepotism tyranny etc. The government has failed to boost or provide a better economy to
the country and the country has a failed government. So, because of all above reason it is
necessary that a martial law is imposed to recover the country from economical crisis, to
recover from corruption and all other misuse of power.
Several dictators to impose and reason the martial law have used this doctrine of
necessity. The context in which this doctrine was introduced into the constitutional
jurisprudence of Pakistan was also a landmark case. This doctrine was introduced for the
first time by justice Munir in the case of Tamizuddin whereby it was legalized that no
law could be passed without the assent of the governor general. The dissolving of
constituent assembly was also legalized through state of necessity, which was the first
time it was introduced. There was a conflicted view of both Justice Cornelius and Justice
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Munir in this case. But this was the context in which it was introduced into Pakistani
constitutional jurisprudence for the first time and it was going to be imposed several
times later.
c) The Fundamental rights are the inalienable rights provided to humans when they are
born, but the enforcer of such rights is the constitution. The constitution recognizes such
rights and enforces these rights for every individual in the courts of law. Now the
question is whether these inalienable rights are upheld or held in abeyance during a
martial law administration. The answer is yes, because when the supreme enforcer that is
the constitution is abrogated partially or certain parts of fundamental rights are held in
abeyance.
Examples of such suspensions can be seen during different military regimes. One of the
most common rights that are suspended during such times is the freedom of expression,
freedom of public assembly and freedom of movement. The major tool of such
dictatorship is the press. There is not dictatorship where the press freedom is not held in
abeyance. Since the press was the only source of information in the past through their
newspapers, News channels, radio etc. The martial law administrator would censor the
media and limit their news to whatever was in favor of the dictator. The press would be
pressured to do so by nepotism threats or other major reasons.
During martial law the authorities would not hesitate to restrict public meetings, public
gathering and other public activities. Wherever such public gatherings were held the
authorities would not hesitate to force them into stopping their activities and even
detained and imprisoning public personnel on major charges, therefore depriving them of
their basic fundamental rights.
In the same way different fundamental rights of religious minorities were suspended
during the Islamization period when Gen Zia imposed different orders effecting
minorities like ahmadis and other sects. Women rights were majorly effect through
various orders, for example by Qanun e shahadat ordinance where 2 women’s testimony
was declared to be equal to that of one man, Therefore depriving women of their
fundamental right of equality before law.
There are many other effects of martial law on fundamental rights, which were exercised
even after the martial was lifted. The nation is still suffering from the consequences of
martial law to date.