Miss Asma Jillani vs. Government of Pakistan
1. Core Profile & Citations
- Case Citation: PLD 1972 S.C. 139
- After the declaration of martial law by General Yahya Khan many Political Leaders were arrested by the military regime and detained.
- Among the detainees were the Malik Ghulam Jillani, the father of Asma Jillani and Malik Altaf Gohar, the husband of Zareena Gohar.
2. Background, Detentions & Forums
- The Detainees: Two individuals had their detentions challenged:
- Malik Ghulam Jilani (Arrested under an order dated 22 December 1971).
- Malik Altaf Gauhar
- Miss Asma Jilani filed a writ petition for the release of her father (Malik Ghulam Jilani) in The Lahore High Court under the Article 98 of The Constitution of Pakistan 1962.
- Mrs. Zarina Gohar filed a similar writ petition for the release of her husband (Malik Altaf Gohar) in Sindh-Baluchistan High Court.
- Both individuals were arrested and held under Martial Law Regulation No. 78 of 1971.
2.Verdict of both High Courts
- Both the High Courts dismissed the petitions with the argument that the decisions under military regime cannot be called in question before the courts because of The Jurisdiction of Courts (Removal of Doubts Order) 1969.
3. Appeal before Supreme Court
- Appeals were filed before the Supreme Court of Pakistan which were heard jointly.
- The Bench of Supreme Court was Headed by Chief Justice Hamoodur Rahman.
4. Core Legal Question
- Whether the High Court had jurisdiction under Article 98 of the Constitution of Pakistan 1962 to inquire into the validity of the detention, despite the legal bars created by the military regime by The Jurisdiction of Courts(Removal of Doubts) Order 1969.
5. The Supreme Court Verdict & Legal Impact
- Overruling of Dosso: The Supreme Court explicitly overruled the infamous decision of The State v. Dosso (1958).
- Rejection of Theories: The Doctrine of Necessity and Hans Kelsen's Theory of Legal Positivism were completely rejected.
- Status of Martial Law: The Supreme Court held that the Martial Law was illegitimate and General Yahya Khan was declared illegal usurper.
- Power of the Judiciary: The Supreme Court declared that superior courts are the sole judges of their own jurisdiction.