Asma Jilani Case: Landmark Judgment & Legal Principles
Asma Jilani Case: A Landmark Decision
The judiciary plays a vital role in interpreting statutes and laws, significantly contributing to legal development. Judgments set precedents, effectively becoming sources of law. In Pakistan, the superior courts have delivered numerous precedent-setting judgments, with the Asma Jilani vs. Government of Punjab case being a prominent example.
Supreme Court Bench
Chief Justice: Hamood ur Rehman
Justice: Waheed ud Din Ahmad
Justice: Muhammad Yaqub Ali
Justice: Salahud din Ahmad
Justice: Sajjad Ahmad
Case Facts
The facts of the Asma Jilani v. Government of Punjab case are as follows:
Challenge to Malik Altaf Gauhar’s Detention
The appeals were filed to challenge the detention of Malik Altaf Gauhar and Malik Ghulam Gillani.
Petitioners Challenging the Detention
Miss Asma Jilani filed an appeal for the release of Malik Ghulam Jilani, and Mrs. Zarina Gauhar appealed for the release of her husband, Altaf Gauhar.
Court Where Petition Was Filed
Asma Jilani filed the writ petition in the Lahore High Court for the release of her father, Ghulam Jillani, while Mrs. Zarina Gohar filed an appeal in the Sindh-Balochistan High Court.
Law Under Which Mr. Altaf Was Detained
Altaf Gauhar and Malik Ghulam Jilani were detained under Martial Law Regulation No. 78 of 1971.
Principles of Law
The following principles of law were established:
Principle Laid Down in State vs. Dosso
The court held that the principles established in State vs. Dosso were not justified.
Constitution of Pakistan 1962
The court clarified that while courts had given full effect to the 1962 Constitution, the laws and acts of various civil and military governments became lawful and valid due to the recognition granted by the 1962 Constitution and the courts.
Court’s Duty
The court affirmed that its judicial function was to adjudicate upon real and present controversies raised by litigants. It was not the court’s role to raise questions suo motu if the litigants chose not to.
Bias in Judge
The court determined that mere association with drafting a law does not disqualify a judge from interpreting that law based on the arguments presented before them.
Jurisdiction
The court held that superior courts are the judges of their own jurisdiction.
Jurisdiction
The court held that superior courts are the judges of their own jurisdiction.
Proclamation of Martial Law
The court decided that General Yahya Khan’s proclamation of martial law was illegal.
Doctrine of Necessity
Although the doctrine of necessity was pleaded to defend General Yahya Khan’s military regime, it was rejected by the judgment in this appeal.
Conclusion
In conclusion, the judgment in the Asma Jilani case, though announced after the end of General Yahya Khan’s rule, initially led to the end of Bhutto’s martial law and ultimately paved the way for the restoration of democracy and the adoption of the 1973 Constitution.