📘 Introduction
The case of Asma Jilani v. Government of Punjab (PLD 1972 SC 139) is one of the most historic judgments in Pakistan’s legal history.
This case ended the doctrine of necessity and restored the supremacy of the Constitution after years of military rule.
Earlier, the Dosso v. Federation of Pakistan judgment (PLD 1958 SC 533) had justified martial law by recognizing it under the doctrine of necessity.
However, the Asma Jilani decision courageously rejected that idea. It declared that no power can suspend the Constitution or the people’s fundamental rights.
⚖️ Background of the Case
To understand Asma Jilani v. Government of Punjab, it’s important to recall Pakistan’s political turmoil after independence.
In 1958, Pakistan saw its first military coup by General Ayub Khan, which the Supreme Court supported in the Dosso case.
This support created a precedent that allowed future military rulers to take over governments by force.
After the 1971 separation of East Pakistan, General Yahya Khan imposed martial law and ruled Pakistan without constitutional legitimacy.
During this period, many citizens were detained illegally, without charges or trials.
Two of those detained were:
- Malik Ghulam Jilani, father of Mrs. Asma Jilani.
- Altaf Gauhar, husband of Mrs. Zarina Gauhar.
Both were detained under martial law regulations that had no constitutional basis. Their families filed petitions before the Supreme Court, challenging the legality of the detentions and the authority of the martial law regime itself.
🧩 Legal Issues Raised
The case of Asma Jilani v. Government of Punjab raised crucial constitutional and legal questions, including:
- Whether General Yahya Khan’s martial law had any legal validity.
- Whether fundamental rights under the Constitution could be suspended.
- Whether the detentions of citizens by military authorities were lawful.
- Whether the Doctrine of Necessity could still justify unconstitutional takeovers.
These questions went to the very heart of Pakistan’s democratic and constitutional structure.
🏛️ Judgment Summary
In 1972, the Supreme Court of Pakistan, led by Chief Justice Hamoodur Rahman, announced a landmark judgment that reshaped Pakistan’s legal history.
The Court ruled that:
- General Yahya Khan was a usurper who had no lawful authority to rule Pakistan.
- His martial law orders were illegal, void, and unconstitutional.
- All actions taken under his regime had no legal force or effect.
- The Constitution of 1962 was never legally abrogated — it was unlawfully suspended.
The Court also held that the Doctrine of Necessity could not justify the overthrow of a constitutional government.
This marked the end of judicial acceptance of military rule in Pakistan’s legal framework.
📜 Legal Principles Established (Ratio Decidendi)
The Asma Jilani case established several powerful legal principles that continue to influence Pakistan’s constitutional law:
- Rejection of the Doctrine of Necessity: The Court declared that necessity cannot make an illegal act legal.
- Supremacy of the Constitution: The Constitution is the highest law, and no one has the power to set it aside.
- Sovereignty of the People: The people of Pakistan are the true holders of power; the military cannot replace civilian authority.
- Judicial Independence: Courts have a duty to uphold the Constitution even against the most powerful rulers.
You can find similar rulings on the
Supreme Court of Pakistan judgments portal.
💡 Historical Impact and Importance
The Asma Jilani case completely overturned the earlier Dosso judgment and restored faith in constitutionalism.
It was a turning point that proved the judiciary could stand up to military rulers and protect citizens’ rights.
Key impacts include:
- It re-established civil supremacy and the rule of law.
- It gave the judiciary a renewed role as guardian of the Constitution.
- It sent a message that military rule cannot be legitimized under any doctrine or excuse.
- It paved the way for future democratic governments and stronger judicial review.
Moreover, this case inspired later constitutional judgments, such as:
- Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 SC 657)
- Zafar Ali Shah v. Pervez Musharraf (PLD 2000 SC 869)
Each of these cases discussed how far the judiciary could go in protecting democracy during military interventions.
For detailed references and access to legal texts, visit
PakistanLawSite.com.
🔗 Relationship with Dosso Case
It’s impossible to understand Asma Jilani v. Government of Punjab without mentioning the Dosso v. Federation of Pakistan (PLD 1958 SC 533) case.
In Dosso, the Court had accepted martial law using the Kelsen theory of revolution, which stated that a successful revolution automatically creates a new legal order.
But in Asma Jilani, the Court rejected that theory and declared it un-Islamic, unconstitutional, and morally wrong.
This shift restored constitutional continuity and ended decades of confusion over the legality of military takeovers.
Learn more of Dosso v. Federation of Pakistan (PLD 1958 SC 533).
🧭 Conclusion
The Asma Jilani v. Government of Punjab (PLD 1972 SC 139) case remains one of the most respected judgments in Pakistan’s legal history.
It showed that even after years of silence, the judiciary could reclaim its power and protect the Constitution.
This case taught Pakistan an enduring lesson:
No ruler, army, or individual is above the Constitution.
Even decades later, Asma Jilani continues to guide courts, lawyers, and citizens in defending democratic values and the rule of law.
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