Nusrat bhutto case

The promulgation of martial law was shocking for many, including the
PPP which decided to challenge it in court. What the PPP didn’t know at
the time was that the seat of chief justice would now be occupied by a
General Zia-friendly judge: Chief Justice Yakoob Ali Khan was swiftly
replaced by Justice Anwarul Haq on Sept 20, 1977 — the same day as
Nusrat Bhutto’s petition to challenge dictatorship was filed.

The constitutional petition was filed by Begum Bhutto under Article 184 (3) against
the chief martial law administrator (CMLA), challenging the validity of the chief of
army staff (COAS) to promulgate martial law, as well as the detention of Zulfikar Ali
Bhutto and 10 other party leaders who were arrested on Sept 17, 1977 under Martial
Law Regulation No 12.

The application was admitted for hearing. A nine-member bench was constituted to
hear the petition; the judges included Chief Justice Anwarul Haq, Waheedudin
Ahmad, Mohammad Afzal Cheema, Mohammad Akram, Dorab Patel, Qaisar Khan,
Mohammad Haleem, G. Safdar Shah and Nasim Hassan Shah.

Begum Nusrat Bhutto files a petition in the Supreme Court challenging martial law, but it is
dismissed; Zia’s action is justified on the basis of doctrine of necessity

In her statement, Begum Bhutto took the plea that the army chief had no right to
overthrow the elected government and that all his actions were illegal. The petitioner
contended that the COAS had no authority under the 1973 Constitution to impose
martial law in the country or to promulgate the Laws (Continuance in Force) Order,
1977.

This intervention, Begum Bhutto argued, amounted to an act of treason as stipulated

by Article 6 of the 1973 Constitution. As a consequence, the proclamation of martial
law dated July 5, 1977, and the laws promulgated, were all without lawful authority.
Since the martial law government had no authority, the petition said, the detention
of Z.A. Bhutto and 10 other party leaders was also illegal.

The Federation was represented by A.K. Brohi, who based his arguments over the
post-March election scenario. He claimed that as a result of Bhutto’s massive rigging,
his government had lost whatever constitutional validity it earlier had. The ensuing
widespread disturbances amounted to a repudiation of Mr Bhutto’s authority to rule
and the spectre of civil war was averted only thanks to the timely action by the army
on July 5.
In paragraph IX of the verdict, the court said that 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 there of have been held in abeyance on account of
State machinery.

Senior lawyer Sharifuddin Pirzada said that Zia’s action on that day was not a coup,
but was valid based on the old Roman doctrine of state necessity, as the only proper
means of ousting a usurper who had illegally assumed power as a result of massive
rigging.

After hearing both sides, the court delivered its verdict on Nov 10, 1977: referring to
the doctrine of necessity, the court dismissed the petition, saying it was not
maintainable.

The Supreme Court said that the 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 the total milieu preceding the change. The
court held that the “objective” political situation prevailing at the time, its historical
imperatives, compulsions, motivations of persons bringing the change and the extent
of preservation of suppression of old legal order all needed to be considered.

In paragraph IX of the verdict, the court said that 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 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 Constitution and have
continued in their functions in spite of the proclamation of martial law. The CMLA
assuming power by means of an extra-constitutional step was held to be a matter of
state necessity and was deemed as being a step taken for the welfare of the people.
He was now entitled to perform all acts and promulgate all legislative measures.

The verdict recalled events that took place during and after the March 7, 1977 polls,
and the allegations of rigging. The verdict added that given the broken state of law
and order, and the shattered economy, the CMLA took over administration for a
short time to arrange for fresh elections within (the) shortest possible time.

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.