Constitutional History of Pakistan
Political backdrop of the time
- Ayub Khan had transferred power to Yahya
- Yahya in jail
- Bhutto government in power
- Altaf Hassan Gauhar (Dawn Editor) and Malik Ghulam Jilani had both arrested under martial law regulations
- Punjab and Sindh High Courts had dismissed their habeas corpus and bail petitions for lack of jurisdiction, and the Supreme Court took on the combined appeal in 1972
Revoking Dosso's case
SC decided 3 related issues:
1) the validity of the revolutionary legality doctrine established in the '58 Dosso case
2) the doctrine's applicability to the transfer of power to Yahya Khan
3) the status of his legal framework were the revolutionary legality doctrine judged inapplicable
Judgement
- The Court quickly concluded that Yahya Khan had usurped power,
- His action was not justified by the revolutionary legality doctrine and consequently his martial law regime was illegal
- Attitude toward Bhutto government was generous
Justice Yaqub: Judgements in Tamizuddin Khan case and the 1955 Reference and Dosso's case had made "a perfectly good country .into a laughing stock." Pointedly criticized the abrogation of the '56 Constitution and observed that Iskander Mirza and Ayub Khan committed treason and destroyed the basis of representation between East and West Pakistan.
- Justices vented decade long frustrations
- Asma Jilani's case, heard while a new constitution was being drafted, decided just before the constitution was drafted by the NA, helped the court place itself on the independent footing it felt was required and deserved.
- Case was not just an attempt to rectify the wrongs of the General, but was also an attempt to combine political principle and practical politics, to determine anew the appropriate role of courts in the polity
Revolutionary Legality and Martial Law
- CJ Hamoodur Rahman confronted Dosso at conceptual and historical levels, developing the latter in more detail
- Dosso, he said, was never
- Ayub Khan had transferred power to Yahya
- Yahya in jail
- Bhutto government in power
- Altaf Hassan Gauhar (Dawn Editor) and Malik Ghulam Jilani had both arrested under martial law regulations
- Punjab and Sindh High Courts had dismissed their habeas corpus and bail petitions for lack of jurisdiction, and the Supreme Court took on the combined appeal in 1972
Revoking Dosso's case
SC decided 3 related issues:
1) the validity of the revolutionary legality doctrine established in the '58 Dosso case
2) the doctrine's applicability to the transfer of power to Yahya Khan
3) the status of his legal framework were the revolutionary legality doctrine judged inapplicable
Judgement
- The Court quickly concluded that Yahya Khan had usurped power,
- His action was not justified by the revolutionary legality doctrine and consequently his martial law regime was illegal
- Attitude toward Bhutto government was generous
Justice Yaqub: Judgements in Tamizuddin Khan case and the 1955 Reference and Dosso's case had made "a perfectly good country .into a laughing stock." Pointedly criticized the abrogation of the '56 Constitution and observed that Iskander Mirza and Ayub Khan committed treason and destroyed the basis of representation between East and West Pakistan.
- Justices vented decade long frustrations
- Asma Jilani's case, heard while a new constitution was being drafted, decided just before the constitution was drafted by the NA, helped the court place itself on the independent footing it felt was required and deserved.
- Case was not just an attempt to rectify the wrongs of the General, but was also an attempt to combine political principle and practical politics, to determine anew the appropriate role of courts in the polity
Revolutionary Legality and Martial Law
- CJ Hamoodur Rahman confronted Dosso at conceptual and historical levels, developing the latter in more detail
- Dosso, he said, was never