P L D 1977 S C 657 (PLP)

(a) An imperative and. inevitable necessity or exceptional circumstances; (b) No other remedy to apply; (c) The measure taken must be proportionate to the necessity; and (d) It must be of a temporary character limited to the duration of the exceptional circumstances. It was added that "A law thus enacted is subject to the control of this Court to decide whether the aforesaid pre‑requisites are satisfied, that is, whether there exists such a necessity and whether the measures taken were necessary to meet it". It seems to me that this summing up of the law of necessity by one of the learned Judges of the Cyprus Supreme Court embodies the true essence of the doctrine, and provides useful practical guidelines for its application. Reference may now be made to the case of F.. O. Lakanmi in which the question of the validity of a Decree issued by the Federal Military Government of Nigeria came up for examination. Nigeria was being governed by ‑the Republican Constitution of 1963, when a section of the Army rebelled in different parts of the country on the 15th of January, 1966. Two regional premiers were put to death and the Prime Minister of the Federation and one of his Ministers were captured and taken to an unknown destination; also some senior members of the Army were killed. The Council of Ministers met without the Prime Minister and decided to hand over the administration of the country to the Armed Forces before the situation got worsened. The Acting President of Nigeria himself announced the handing over of the administration of the country to the Armed Forces. This announcement was followed by a speech by the General Officer Commanding the Nigerian Army in which he declared that he had accepted the invitation of the Acting President to form the interim military Government, and had suspended certain parts of the Constitution relating to the office of President, the establishment of Parlia ment and of the office of the Prime Minister, and certain offices relating to the Regions. The Supreme Court of Nigeria took the view that these events did not amount to a revolution, and that the situation was distinguishable from that obtaining in Dosso's ease in Pakistan, where the President bad issued a proclamation anulling the existing Constitution. It stated that the Federal Military Government of Nigeria was not a revolutionary Govern ment, as it had made it clear before assuming power that the Constitution of the country will remain in force excepting certain sections which were being suspended. They went on to say that "We have tried to ensure that the country is governed by the Constitution and Decrees which, from time to time, are enacted when the necessity arises and are then supreme when they are in conflict with the Constitution. It is clear that the Federal Military Government decided to govern the country by means of a Constitution and Decrees. The necessity must arise before a Decree is passed ousting any portion of the Constitution. In effect, the Constitution still remains the law of the country and all laws are subject to the Constitution excepting so far as by necessity the Constitution is amended by a Decree. This does riot mean that the Constitution the country ceases to have effect as a superior norm. From the facts of the taking‑over, as we have pointed out that the Federal Military Government is an interim Government of necessity concerned in the political cauldron of its inception as a means of dealing with the situation which has arisen and its main object is to protect lives and property and to maintain law and order." The learned Judges of the Supreme Court went on to observe that "by recognising the fact that there is a doctrine of necessity, we do not alter the law but apply it to facts as they do exist." They then proceeded to examine the 'validity of the impugned Decree by posing the question whether it went beyond the requirements or demands of the necessity of the case. They came to the conclusion that the Decree in question was nothing short of a legislative judgment, an exercise of judicial power and, therefore, ultra vires and invalid under the Constitution which envisaged a clear separation of judicial and legislative functions of the State. This judgment supports the learned Attorney‑General on the point that necessity validates actions which would .otherwise not be lawful but it also spells out the principle that all actions taken in pursuance of necessity could be tested on that ground by way of judicial review. The, learned Attorney‑General submits that the second part of the judgment was not accepted by the Federal Military Government of Nigeria, which proceeded to pass certain other Decrees to nullify the effect of the verdict of the Supreme Court. In support of this submission, he drew our attention to an article entitled "The Search for a Grundnorm in Nigeria

The Lakanmi's case", written by a Nigerian Jurist, named Abiola Oji. The author of the Article is critical of the judgment of the Supreme Court as he would have preferred the Court to apply Kelsen's theory regarding the legality of a successful revolution. On the question of judicial review a very pertinent observation appearing in this Article is that the Supreme Court had placed itself in the wrong by striking down a Decree which was intended to forfeit stolen public money. That may have been the reason for the reaction of the Military Government to the decision of the Court, but this reaction does not necessarily mean that the Court was in error on the plane of legal and judicial principles. I would also like to observe that, as I am not fully conversant with the political situation and the legal traditions of Nigeria, it is not possible for me nor is it desirable to offer any comments on the propriety of the action takers by the Federal Military Government of Nigeria in the wake of the judgment of the Supreme Court in the case we are discussing. I can, however, say about our own situation, namely, that the Supreme Court of Pakistan, as at present constituted, does not feel itself under an inhibition or restraint in taking a view in this case which appears to be dictated by the highest considerations' of law, justice, equity and good, conscience, and I also see no reason why the Martial Law Administration should not accept the decision of this Court in the same spirit. I, therefore, venture to say that reference to the aftermath of the judgment of the Nigerian Supreme Court is completely misconceived and irrelevant to the legal questions we are considering here. Reverting now to the observations made by the Court in Asma Jillani's case on the doctrine of necessity, I find that Hamoodur Rahman, C. J. has referred with approval to the decision in the Cyprus case as well as to the formulation of the doctrine by Lord Pearce, who delivered the dissenting judgment in the Privy Council in the Rhodesian case, already referred to. In that judgment, Lord Pearce had indicated three limitations for the validation of acts of the Smith Government, namely, (i) So far as they are directed to and reasonably required for ordinary .orderly running of the State; (ii) So far as they do not impair the rights of citizens under the lawful Constitution; and (iii) So far as they are not intended to and do not in fact directly help the usurpation and do not run contrary to the policy of the lawful sovereign. The learned Chief Justice adopted these principles but preferred to treat them as basis of condonation and not legitimization, as he was dealing, ex post facto with the acts of the usurper. A review of the concept of the law of necessity, as recognized in various jurisdictions, clearly confirms the statement made in this behalf b Muhammad Munir, C. J. in Reference by H. E. Governor‑General P L D 1955 F C 435, to the effect that an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity, the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution. The principle has been reiterated by the Supreme Court m Asma Jillani's case with the difference that where the Court is dealing with the acts of a usurper, such acts may be condoned and T not validated by the application of the taw of necessity. It seems tome ,l therefore, that on facts, of which we have taken judicial notice, namely, that the imposition of Martial Law was impelled by .high consideration of State necessity and welfare of the people, the extra‑constitutional step taken by the Chief of the Army Staff to overthrow the Government of Mr. Z. A. Bhutto as well as the Provincial Governments and to dissolve the Federal and the Provincial Legislatures stands validated in accordance with the doctrine of necessity. The question now arises as to what is the extent and scope of the powers which the Chief Martial Law Administrator may exercise during the temporary period for which he has taken control of the administration in Pakistan. It is contended by the learned Attorney‑General that once the take‑over is validated on the‑principle of necessity, then the Chief Martial Law Administrator would have the right to govern the country in any manner he thinks best, and the Courts in Pakistan will be bound by the provisions of the Laws (Continuance in Force) Order, 1977, which must henceforth be treated as a supra‑Constitutional instrument, binding all authorities in Pakistan. He seeks to re‑inforce this submission by referring to the implications of Martial Law as described in Corpus Juris Secundum Vol. 93, and "Salmond on Jurisprudence", p. 190, 11th Edition. According to the definition given on p. 115 of the Corpus Juris Secundum, Martial Law, or more appropriately martial rule, is the temporary government by military force and authority of territory in which, by reason of the existence of war or public commotion, the civil government is inadequate to the preservation of order and the enforcement of law. The definition continues to add that "In strictness it is not law at all, but rather a cessation of all municipal law as an incident of jus belli and because of paramount necessity, it depends, for its existence, operation and extent, on the imminence of public peril and the obligation to provide for the general safety. It is essentially a law or rule of force, a purely military measure, and in final analysis is only the will of the Officer Commanding the Military Force. As the offspring of necessity, it transcends and displaces the ordinary laws of the land, and it applies alike to military and non‑military persons and is exercisable alike over friends and enemies, citizens and aliens." The authors also state that "The validity of Martial Law is always a judicial question", and the establishment of Martial Law does not itself oust or suspend civil authority or jurisdiction, but is rather a recognition that the civil authority had been suspended or has broken down as a result of the conditions inducing the proclamation of martial rule. According to Salmond, there are three kinds of martial law, namely, (i) the law for the discipline and the government of the Army itself; or (ii) the law by which the Army in time of war governs foreign territory in its military occupation outside the realm; or (iii) the law by which in time of war the Army governs the realm, which is in derogation e" civil law, so far as required by military necessity and the public safety. In the present context, we are concerned with the third and last kind of Martial Law. After discussing various legal opinions as to the legality of such a Martial Law, the author says that "It is sufficient to say that the better opinion would seem to be that even within the realm itself the existence of the state of war and of national danger justifies. in law the temporary establishment of a system of military government and military justice in derogation of the ordinary law of the land, in so far as this is reasonably deemed necessary for the public safety .... with the acts of military authorities done in pursuance of such a system the civil Courts of law will not concern themselves in time of war. In short, the legal basis of Martial Law in this third sense is simply the common law doctrine of necessity." In an earlier part of this judgment, I have stated that it was not necessary to discuss at any length the various kinds of Martial Law, for the reason that the legal character of the change which has taken place in Pakistan was not dependent upon the name given to the new regime, as the authorities overthrowing Mr. Z. A. Bhutto could have governed by decree or by Martial Law Regulations etc. once they had seized power by an extra‑Constitutional step. In spite of the reference made by the learned Attorney‑General to the text books mentioned above, I am of the view that the definitions given here are irrelevant. We are not dealing with a situation contemplated in the statements relied upon by the learned Attorney‑General; rather with a situation of a more fundamental character, where the constitutional machinery has broken down or its authority has been eroded by factors of a political nature. The disturbances which. ensued as a consequence were not the direct cause, they were only the result of a fundamental malady which was of a constitu tional nature. 1t is also to be noticed that the Proclamation of Martial Law and the speech made by the Chief Martial Law Administrator on the evening of the 5th of July 1977 clearly speak of the civilian President continuing in office under the Constitution, and they also contemplate that the civil Courts including the High Courts and the Supreme Court shall continue to function as before, subject to certain limitations spelt out in the Laws (Continuance in Force) Order, to which I shall advert later. I mention these facts to show that it would be inappropriate to judge the present situation by reference to classical statements as to the state of war con templated by textbook writers in relation to martial law. In order to determine the true nature of the change, we must examine, as already stated, all the surrounding circumstances including the motivation of those who have brought about the change and the objectives declared by them as justifying the change. I would like to clarify here that the use of what may be described as "the declaration of intent" is not to be construed in the limited sense in which the preamble to a statute or even the Constitution may be looked at for ascertaining its true meaning. We are still in the realm of ascertaining the true legal character of the abrupt political change which has been brought about by means of an extra‑Constitutional measure, and for this reason the declaration of intent is relevant for this higher purpose, and is not to be confused with the limited use which may be made of a preamble to a formal statute. I have already referred in another context, to the speech made by the Chief Martial Law Administrator on the evening of the 5th of July 1977 to explain the reasons for his take‑over of the administration. He stated inter alia that:‑ "But the Constitution has not been abrogated. Only the operation of certain parts of the Constitution has been held in abeyance. Mr. Fazal Elahi Chaudhry has very kindly consented to continue to discharge his duties as President of Pakistan as heretofore under the same Constitution. I am grateful to him for this. To assist him in the discharge of his national duties, a four‑member Military Council has been formed. The Council consists of the Chairman, Joint Chiefs of Stag', and Chiefs of Staff of the Army, Navy and the Air Force. I will discharge the duties of the Chief of Army Staff and Chief Martial Law Administrator. Martial Law Orders and instructions as and when required will be issued under my orders." He further stated on this occasion that: "I want to make it absolutely clear that neither I have any political ambitions nor does the Army want to be detracted from its profession of soldiering. I was obliged to step in to fill in the vacuum created by the political leaders. I have accepted this challenge as a true soldier of Islam. My sole aim is to organise free and fair elections which would be held in October this year. Soon after the polls power will be transferred to the elected representatives of the people. I give a solemn assurance that I will not deviate from this schedule. During the next three months my total attention will be concentrated on the holding of elections and I would not like to .dissipate my powers and energies as Chief Martial Law Administrator on anything else." As to the place of Judiciary, he stated that:‑ "It will not be out of place to mention here that I hold the Judiciary of the country in high esteem. I will do my best to refrain from doing anything which is likely to restrict the power of the Judiciary. However, under unavoidable circumstances, if and when Martial Law Orders and Martial Law Regulations are issued, they would not be challenged in any Court of law." It will be seen that the declared objectives of the imposition of Martial Law are to create conditions suitable for the holding of free and fair elections in terms of the 1973 Constitution, which was not being abrogated, and only certain parts of which were being held in abeyance, namely, the parts dealing with the Federal and the Provincial executives and Legislatures. The President of Pakistan was to continue to discharge his duties as heretofore under the same Constitution. Soon after the polls the power is to be transferred to the elected representatives of the people. It is true that owing to the necessity of completing the process of accountability of holders of public offices, the holding of elections had to be postponed for the time being but the declared) intention of the Chief Martial Law Administrator still remains the same, namely, that he has stepped in for a temporary period and for the limited purpose of arranging free and fair elections so as to enable the country to return to a democratic way of life. In the presence of these unambiguous declarations, it would be high unfair and uncharitable to attribute any other intention to the Chief Martian Law Administrator, and to insinuate that he has not assumed power for the purposes stated by him, or that he does not intend to restore democratic institutions in terms of the 1973 Constitution. Such being the case, in m opinion. the remarks made by De Smith in his book "Constitutional an Administrative Law, to which reference has already been made earlier, appeal with full force to the situation prevailing at present in Pakistan, namely:‑ "In some situations where unconstitutional action has been taken by person wielding effective political power, it is open to a Judge to steer middle course. He may find it possible to ask that the frame world of the pre‑existing order survives but the deviation from these norm can be justified on the grounds of necessity. The principle of necessity, rendering lawful what would otherwise be unlawful is not unknown to English law; there is a defence of necessity, albeit of uncertain scope, in criminal law and in constitutional law, the application o martial law is but an extended application of this concept. But the necessity must be proportionate to the evil to be averted, and acceptance of the principle does not normally imply total abdication from judicial review or acquiescence in the supersession of the Legal Order; it t essentially a transient phenomenon." As a result, the true legal position which, therefore, emerges is:‑ (i) 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 necessity; (ii) That the President of Pakistan and the superior Courts continue to function under the Constitution. 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 this 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; (iii) That the Chief Martial Law Administrator, having validly assumed power by means of an extra‑Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consist ently recognised by judicial authorities as falling within the scope of the law of necessity, namely:‑ (a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power toll amend it; (b) All acts which tend to advance or promote the good of the people; (c) All acts required to be done for the ordinary orderly running of the State; and (d) All such measures as would establish or lead to the establishment of the declared objectives of the proclamation of Martial Law, namely, restoration of law and order, and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of. restoration of democratic institutions under the 1973 Constitution; (iv) That these acts, or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations, or. Orders, as the occasion may require; and (v) That the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law' Authorities, if challenged, in the light of the principles underlying the, law of necessity as stated above. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance. This last point needs a little explanation. In the body of this judgment opinions of certain textbook writers and contemporary jurists have been quoted in support of the proposition that the Courts established under the pre‑existing Legal Order continue to have the power and jurisdiction t adjudicate upon the validity and effectiveness of the new Legal Order. As I have held that the new Legal Order is only for a temporary period, and for specified and limited purpose, and does not seek to destroy the old Legal Order but merely to hold certain parts thereof in abeyance or to subject it to certain limitations on the ground of State necessity or on the principle d salus populi suprema lex, the superior Courts continue to remain the Judges of the validity of the actions of the new regime in the light of the doctrine y of necessity, for the new regime then represents not a new Legal Order, but only a phase of constitutional deviation dictated by necessity. There is yet another, and a stronger reason for holding that the power of judicial review continues. The 1973 Constitution provides for a clear trichotomy of powers between the executive, legislative and judicial organs of the State. However, owing to reasons of necessity, the executive and the legislative power now stands combined in one authority, for the reason that these two organs of the State had lost their constitutional and moral authority in the circumstances arising since the 7th of March 1977, but no such considerations arose in regard to the judicial organ of the State. Accordingly, on no principle of necessity could powers of judicial review vested in the superior Courts under the 1973 Constitution, be taken away. Next, even if for any reason the principle or power of judicial review embodied in the relevant provisions of the 1973 Constitution be held not to. be available under the new dispensation, the fact remains that the ideology, of Pakistan embodying the doctrine that sovereignty belongs to Allah and is to be exercised on his behalf as a sacred trust by the chosen representatives of the people, strongly militates against placing the ruler for the time being above the law, and not accountable to any one in the realm. Muslim rulers have always regarded themselves as being accountable to the Courts of the land for all their actions and have never claimed exemption even from personal appearance in the Courts. The Courts of Justice are an embodiment and a symbol of the conscience of the Millat (Muslim community), and provide an effective safeguard for the rights of the subjects. On this principle a well, the power of judicial review for judging the validity of the actions of the Martial Law Authorities must continue to remain in the superior Courts. Lastly, the Court is bound to take note of the fact that already several instances have been brought to its notice where the ordinary civil rights of the people are being interfered with by the subordinate Martial La Authorities even though the laws of the land, which have been kept alive under the Laws (Continuance in Force) Order, 1977, make full provision for their adjudication. In some cases, interference has occurred even when the w contending parties had already been litigating in the civil Courts regarding the same disputes. The necessity which justified the Proclamation of Martial Law, did not arise owing to the failure of the Courts to adjudicate on these matters Such matters must, therefore, continue to fall outside the purview of the Martial Law Authorities, and the only remedy to the citizens against any such encroachment can be by way of judicial review in the superior Courts. I now proceed to examine the provisions of the Proclamation as well as of the Laws (Continuance in Force) Order,. 1977, in the light of the principles just stated. There has been considerable argument at the Bar as to the correct description of these legal instruments. Mr. Sharifuddin Pirzada would like to describe them as supra‑Constitutional instruments, for, in his opinion, they override the 1973 Constitution and are binding on every one by virtue of their oven force. As I am not persuaded to accept this last contention for the reason already stated, namely, that the power of the Court to test the validity of all actions of the Chief Martial Law Administrator on the touchstone of necessity remains, I would accordingly describe these instruments as being of an extra‑Constitutional nature so as to conform to the description of the action by virtue of which the Chief Martial Law Administrator has assumed the administration of Pakistan. For facility of reference, the Proclamation and the Laws (Continuance in Force) Order, 1977, as originally promulgated may be reproduced here:‑ Whereas, I, General Mohammad Zia‑ul‑Haq, Chief of the Army Staff, have proclaimed Martial Law throughout Pakistan and assumed the office of the Chief Martial Law Administrator, hereby order and proclaim as follows:‑ (A) The Constitution of the Islamic Republic of Pakistan shall remain in abeyance; (B) The National Assembly. the Senate and the Provincial Assemblies ' shall stand dissolved; (C) The Prune Minister, the Federal Ministers, Ministers of State, Advisers to the Prime Minister, the Speaker and Deputy Speaker of the National Assembly and the Provincial .Assemblies, the Chairman and Deputy Chairman of the Senate, the Provincial Governors, the Provincial Chief Ministers and the Provincial Ministers shall cease to hold office; (D) The President of Pakistan shall continue in Office ; and (E) The whole of Pakistan will come under Martial Law. THE LAWS (CONTINUANCE IN FORCE) ORDER, 1977 C. M. L. A. ORDER NO. 1 OF 1977 In pursuance of the Proclamation of the fifth day of July 1977 and in exercise of all powers enabling him in that behalf, the Chief Martial Law Administrator is pleased to make and promulgate the following Order: 1

‑(1) This Order may be called the Laws (Continuance in Force) Order, 1977. (2) It extends to the whole of Pakistan. (3) It shall come into force at once. 2.‑‑(1) Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan hereinafter referred to as the Constitution, Pakistan. shall, subject to this Order and any order made by the President and any regulation made by the Chief Martial Law Administrator, be governed as nearly as may be in accordance with the Constitution. (2) Subject as aforesaid, all Courts in existence immediately before the commencement of this Order shall continue to function and to exercise their respective powers and jurisdictions: Provided that the Supreme Court or a High Court shall not have the power to make any order of the nature mentioned in Article 199 of the ., Constitution against the Chief Martial Law Administrator or a Martial s Law Administrator or an. person exercising powers or jurisdiction under the authority of either. (3) The Fundamental Rights conferred by Chapter I of Part II of the Constitution, and all proceedings pending in any Court, in so far as they are for the enforcement of any of those rights shall stand suspended. 3.‑ (1) The President shall act on and in accordance with the advice of the Chief Martial Law Administrator. (2) The Governor of a Province shall act on, and in accordance with, the advice of the Martial Law Administrator appointed by the Chief Martial Law Administrator for the Province. 4.‑(1) No Court, tribunal or other authority shall call or permit to be called in question the proclamation of the fifth day of July, 1977, or any Order or Ordinance made in pursuance thereof or any Martial Law Regulation or Martial Law Order. (2) No judgment, decree, writ, order or process whatsoever shall be made or issued by a Court or tribunal against the Chief Martial Law Administrator or any Martial Law Authority exercising powers or jurisdiction under the authority of the Chief Martial Law Administrator. 5.‑(1) Notwithstanding the abeyance of the provisions of the Constitu tion, but subject to any order of the President or regulation made by the Chief Martial Law Administrator, all laws, other than the Constitution, and all Ordinances, Orders‑in‑Council, Orders made by the President, Rules, by‑laws, regulations, notifications and other legal instruments in Pakistan or any part thereof, or having extra‑territorial validity shall, so far as may be and with such adaptation as the President may see fit to make, continue in force until altered, amended or repealed by competent authority. (2) In clause (1) "in force", in relation to any law, means having effect as law whether or not the law has been brought into operation.

6. Subject to clause (2) of Article 3, the powers of a Governor . shall be those which he would have had the Federal Government directed him to assume on its behalf all the functions of the Government of the province under the provisions of Article 232 of the Constitution. 7.‑(1) An Ordinance promulgated by the President or by the Governor of a province shall not be subject to the limitation as to its duration prescribed in the Constitution. (2) The provisions of clause (1) shall also apply to an Ordinance ?Which was in force immediately before the commencement of this Order.

8. All persons who, immediately before the commencement of this Order, were in the service of Pakistan as defined in Article 260 of the Constitution and those persons who immediately before such commencement were in office as Judge of the Supreme Court or a High Court or Auditor‑General, shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any.

9. Any provision in any law, providing for the reference of a detention order to a Review Board shall be of no effect.

10. The Proclamation of Emergency referred to in Article 280 of the Constitution, as in force immediately before the commencement of this Order, shall continue in force." It will be seen that the Proclamation embodies and describes in legal form, the extra‑constitutional action which the Chief of the Army Staff has taken on the ground of necessity. The proclamation must, therefore, be held valid for the same reason; in fact, the entire controversy dealt with in the preceding pages has concerned this Proclamation and nothing else. A perusal of the provisions of the Laws (Continuance in Force) Orderly also shows that they are primarily designed to give effect to the purposes of the Proclamation. As however this Order is an offspring of necessity, the superior Courts continue to have the power of judicial review, notwithstanding anything to the contrary contained in this Order, to test the validity of its provisions and any action taken there under, in the light of the principles regulating the application of the law and doctrine of necessity, as already set put earlier. I now turn to the examination of the last question arising in this case, namely, whether the Fundamental Rights can still be enforced in spite of the prohibition contained in clause (3) of Article 2 of the Laws (Continuance in Force) Order, vi:., that "The Fundamental Rights conferred by Chapter I of Part II of the Constitution, and all proceedings pending in any Court, in so far as they are for the enforcement of any of those rights shall stand suspend ed." '1 he contention of Mr. Yahya Bakhtiar is that the right to enforce the Fundamental Rights could be suspended only during the continuance of an Emergency under Article 232 of the Constitution, and that too in terms of an Order made by the President under clause (2) of Article 233 thereof, but the Emergency already proclaimed in Pakistan has since been revoked by the respondent with effect from the 15th of September 1977, with the result that the Fundamental Rights stand revived. Messrs A. K. Brohi and Sharifuddin Pirzada, however, contend that in spite of the revocation of Emergency, the Fundamental Rights remain suspended under Article 2(3) of the Laws (Con tinuance in Force) Order, 1977, which is independent of the Emergency con templated in Article 232 of the Constitution. It may be stated that the Emergency proclaimed by General Agha Mohammad Yahya Khan, as President of Pakistan, on the 23rd of November 1971, was continued in force under Article 260 of the 1973 Constitution. It was varied by a Proclamation on the 21st of April 1977 so as to include internal Emergency under Article 236 of the Constitution, and it was revoked al together on the 15th of September 1977. An order was made on the 15th of August 1973 by the President under Article 233(2) of the Constitution sus pending the right to enforce certain specified Fundamental Rights, but this Order was rescinded on the 14th of August 1974. The right to enforce Fundamental Rights was again suspended under Article 245 of the Constitution with effect from the 21st of April 1977, in respect of areas where the Armed Forces had been called out in aid of civil power under the directions of the Federal Government. The present position, however, is that the Emergency having been revoked altogether with effect from the 15th of September 1977, there is no operative order in the field in terms of the Constitution, suspending the right to enforce Fundamental Rights. The question, therefore, is whether the provision embodied in this behalf in clause (3) of Article 2 of the Laws (Continuance in Force) Order is valid in the light of the principles governing the application of the law of necessity. One of the conditions stated in this behalf is that the Chief Martial Law Administrator is entitled to perform all acts and take such legislative measures which are in accordance with, or could have been made under the 1973 Con stitution. Now, the Constitution does permit the suspension of the right to enforce Fundamental Rights in case of an Emergency of the nature contem plated in Article 232 thereof. Clause (1) of this Article says that "If the President is satisfied that a grave Emergency exists in which the security of Pakistan or any part thereof is threatened by war or external aggression or by internal disturbances beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency." If, therefore, it is found that the situation of the kind contemplated by this provision of the Constitution exists in Pakistan, then the Chief Martial Law Administrator would be entitled to make an order of the kind which could be made under clause (2) of Article 233 of the Constitution suspending the right to enforce. Fundamental Rights. It has already been seen that the conditions culminating in the Proclamation of Martial Law on the 5th of July 1977, were so grave that the very existence of the country was threatened, that chaos and bloodshed, was apprehended and there was complete erosion of the constitutional authority of the Federal Government, leave alone that of the various Provincial Governments. The situation had indeed deteriorated to such an extent that it justified an extra- Constitutional step, resulting in the suspension of certain parts of the Constitu tion itself by the Armed Forces. Such being the case, the situation was obviously at least of the kind contemplated by clause (1) of Article 232 of the Constitution. In the circumstances, the Chief Martial Law Administrator was justified in providing in clause (3) of Article 2 of the Laws (Continuance in Force) Order that the right to enforce Fundamental Rights shall be suspend‑: ed. It was clearly an order which could have been made under the 1973 Constitution. No exception can, therefore, be taken to the validity of this provision. As the present petition under clause (3) of Article 184 of the Constitution is intended for the enforcement of certain Fundamental Rights of the detenus, it is not maintainable for the reason that the Fundamental Rights stand validly suspended since the 5th of July 1977, under clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977. On this view of the matter, it is not necessary for this Court to examine the contention that the Martial Law Order No. 12 under which detentions have been ordered is not valid, or that the detentions are mala fide. The final position as emerging from this somewhat lengthy discussion of the various questions arising in this case may briefly be summed up as follows :‑ (i) That the legal character and validity of any abrupt political change, brought about in a manner not contemplated by the .pre‑existing Constitution or Legal Order, cannot be judged by the sole criterion of its success or effectiveness, as contemplated by Kelsen's pure theory of law. Not only has this theory not been universally accepted, or applied, it is also open to serious criticism on the ground that, by making effectiveness of the political change as the sole condition or criterion of its legality, it excludes from consideration sociological factors or morality and justice which contribute to the acceptance or effectiveness of the new Legal Order. The legal consequences of such a change must, therefore, be determined by a consideration of the total milieu in which the change is brought about, including the moti vation of those responsible for the change, and the extent to which the old Legal Order is sought to be preserved or suppressed ; (ii) That in any case the theory of revoluntionary legality can have no application or relevance to a situation where the breach of legal con tinuity ‑is of a purely temporary nature and for a specified limited purpose Such a phenomenon can more appropriately be described as one of constitutional deviation rather than of revolution ; (iii) That examined in this light, the Proclamation of Martial Law on the 5th of July 1977, appears to be an extra‑Constitutional step necessitated by the complete break‑down and erosion of the constitutional and moral authority of the Government of Mr. Z. A. Bhutto, as a result of the unprecedented protest movement launched by the Pakistan National Alliance against the alleged massive rigging of elections to the National Assembly, held on the 7th of March 1977. It was a situation for which the Constitution provided no solution, and the Armed Forces had, therefore, to intervene to save the country from further chaos and bloodshed, to safeguard its integrity and sovereignty, and to separate the warring factions which had brought the country to the brink of disaster ; (iv) That the imposition of Martial Law, therefore, stands validated on the doctrine of necessity, and the Chief Martial Law Administrator is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognised by judicial authorities as falling within the scope of the law of necessity ; (v) That it has also become clear from a review of the events resulting in the culmination of Martial Law, and the declaration of intent made by the Chief Martial Law Administrator, that the 1973 Constitution still remains the supreme law, subject to the condition that certain parts thereof have been held in abeyance on account of State necessity; and the President of Pakistan. as well as the superior Courts continue to function under this Constitution. In other words, this is not a case where the old Legal Order has been completely suppressed or destroyed, but merely a case of constitutional deviation for a temporary period and for a specified and limited objective, namely, the restoration of law and order and normalcy in the country, and the earliest possible holding of free and fair elections for the purpose of the restoration of democra tic institutions under the 1973 Constitution ; (vi) That, accordingly, the superior Courts continue to have the power of judicial review to judge the validity of any act or action. of the Martial Law Authorities if challenged in the light of the principles underlying the law of necessity as set out in this judgment. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance ; and (vii) That the provisions contained in clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, suspending the right to enforce Fundamental Rights are valid for the reason that the situation prevailing in the country was obviously of such a nature as to amount to an Emergency contemplated by clause (1) of Article 232 of the Constitution, and the right to enforce Fundamental Rights could, therefore, be legiti mately suspended by an order of the kind which could have been made under clause (2) of Article 233 of the Constitution. As a result, the present petition fails and is hereby dismissed. However, it will be for the detenus, if so advised, to move the High Courts concerned under Article 199 of the Constitution. Before parting with this judgment, it is necessary to refer to certain misgivings and apprehensions expressed by Mr. Yahya Bakhtiar, learned counsel for the petitioner, to the effect that the postponement of the elections scheduled to be held on the 18th of October 1977, has cast a shadow on the declared objectives of the Chief Martial Law Administrator. After seeking instructions from his client, Mr. A. K. Brohi has informed the Court that the Chief Martial Law Administrator intends to hold elections as soon as the process of the accountability of the holders of public offices is com pleted, and the time factor depends upon the speed with which these cases are disposed of by the civil Courts concerned. The learned Attorney‑General has stated at the Bar that, in his opinion, a period of about six months is needed for this purpose, and thereafter it will be possible to hold the elections within two months. While the Court does not consider it appropriate to issue any directions, as suggested by Mr. Yahya Bakhtiar, as to a definite time‑table for the holding of elections, the Court would like to state in clear terms that it has found it possible to validate the extra‑Constitutional action of the Chief Martial Law Administrator not only for the reason that he stepped in to save the country at a time of grave national crisis and constitutional break‑down, but also because of the solemn pledge given by him that the period of constitutional deviation shall be of as short a duration as possible, and that during this period all his energies shall be directed towards creating conditions conducive to the holding of free and fair elections, leading to the restoration of democratic rule in accordance with the dictates of the Constitution. The Court, therefore, expects the Chief Martial Law Administrator to redeem this pledge, which must be construed in the nature of a mandate from the people of Pakistan, who have, by and large, willingly accepted his administration as the interim Government of Pakistan. In the end, we would like to express our deep appreciation for the valu able assistance rendered by the learned Attorney‑General for Pakistan, Mr. Sharifuddin Pirzada, and the learned counsel for the parties, namely, Mr. Yahya Bakhtiar for the petitioner and Mr. A. K. Brohi for the respondent, in the decision of this case, which has raised difficult and complicated questions of constitutional law. WAHEEDUDDIN AHMAD, J.‑I have had the advantage of reading the judg ment of my Lord the Chief Justice. I am in respectful agreement with the reasoning and conclusions reached by him. I cannot add anything further usefully to the contribution already made by him. I was a party to the judgment of this Court in Asma Jillani's case an I am of the considered view that the principles laid down in the above ca are not applicable to the facts of the present case. In the circumstances of the present case the principles enunciated in the Reference by His Excellence The Governor‑General (P L D 1955 F C 435) will have to be invoked for solving the present constitutional dead‑lock. MUHAMMAD AFZAL CHEEMA, J.‑I have had the privilege of going through the elaborate judgment proposed to be delivered by my Lord the Chief Justice and am in respectful agreement with the views expressed and the conclusions reached therein. However, I feel tempted to make a few observations in order to highlight one or two aspects of my Lord's judgment. 1t needs hardly to be mentioned that this case besides involving determin ation of extremely complicated constitutional issues having far‑reaching implications and a direct and immediate impact on the entire nation which is anxiously awaiting its decision, also calls for the resolution of the conflict of views expressed by this Court in Dosso's case (P L D 1958 S C (Pak.) 533) and Asma Jillani's case (P L D 1972 S C 139) or reaffirmation of one of them. Both the judgments having been widely published and internationally commented upon. Mr. Brohi's arguments. were mainly directed towards the defence of the Kelsonian theory and if accepted would have in substance led to the restoration of this Court's dictum in Dosso's case. It may be observed with respect that Islam being the ideological foundation of the State of Pakistan any man‑made legal theory divorced from morality and coming into conflict with the Divine Law of Islam would be wholly irrelevant for our purposes to the extent of its repugnancy to the latter. Unlike a pure theory of law, Islamic principles are subjectively centred round morality and are aimed at the establishment of an C orderly and peaceful moral society by taking an equally, pragmatic view in the matter of their application and placing the security safety and welfare of the people about everything else. The doctrine of necessity is an inevitable outcome of this realistic approach and has been recognized by Islam both in the individual as well as the collective field. The object of legal principles is to ensure proper regulation of human conduct and behaviour to the benefit of the individual and the society. Islam has permitted and condoned a departure from their strict observance and application in cases of extreme necessity and compulsion. The principle of public welfare (Salus populi est supremo lex) follows as a necessary corollary from this. There are several instances when in a peculiar situation strict compliance with the Qur'anic injunction was found to result in greater hardship and mis chief and likely to create more complications the remedy proving worse than the disease, the Holy Prophet or the Caliphs did not insist on its enforcement and temporarily suspended it on ground of expediency. The doctrine of necessity is not, therefore, a juristic concept of the West but is of Islamic origin having been based on and deduced from the following Verses of the Holy Qur'an :‑ (1) Al- Baqara II-173; He hath only forbidden you dead meat, and blood, and the flesh of swine, and that on which any other name hath been invoked besides that of God. But if one is forced by necessity, without lawful disobedience, nor transgressing due limits, then he is guiltless, for God is oft‑for giving Most Merciful. (2) Al-Maeda V=4; Forbidden to you (for food) are dead meat, blood, the flesh of swine, and that on which hath been invoked the name of other than God . . . . but .if any one is forced by hunger, with no inclination to transgression, God is indeed of forgiving, Most Merciful. (3) Al-Inaam VI=119: He has explained to you in detail what is forbidden to you except under compulsion of necessity. (4) Al-Nahal XVI=115: He has only forbidden you dead meat and blood and the flesh of swine .but if one is forced by necessity nor transgressing due limits, then God is oft‑giving, Most Merciful. The Muslim exegesists and jurists have also deduced the above principle from Verse No. 106 of Sura XVI: "Any one who after accepting faith in God utters unbelief except under compulsion remaining firm in faith . . . . . . ." It would be abundantly clear from this that in order to save his skin, a Muslim has been permitted even to go to the extent of a verbal denial of his belief and making a sacrilegious utterance. These Verses found further support from the following traditions of the Holy Prophet (peace be upon him) .‑ This in substance means that the principal objective of avoiding harm or damage should always be kept in view and never lost sight of. In these two traditions of which one is reported from ( Umme-Kalsoom) and the other from (Asma Binte Yazid), the Holy Prophet condoned misstatements of fact made bona fide .during (i) war, (ii) for effecting compromise amongst the people in general, and (iii) for bringing about reconciliation between husband and wife in particular. It would not be out of place to refer in context to two important historical incidents. One is that the Holy Prophet prohibited the cutting of hands for an established theft during battle and the other is that of suspension of the imposition of this Hadd by Caliph Omar during the year of famine. From the above verses, traditions and incidents the Muslim exegesis s and doctors formulated the following juristic principles :‑ (1) Necessities make permissible acts otherwise, prohibited. (2) Harm or damage has to be done away with. (3) Specific harm or damage can be tolerated in order to obviate general harm or damage. (4) While confronted with two evils one should choose the lesser evil. (5) The obviation of a greater harm may be sought through a lesser harm. (6) Removal of evils is more impor tant than achievement of good and shall take precedence over it as the Sharia pays more heed to the observance of prohibitions than compliance with affirmative com mandments. According to Imam Al‑Ghazali the doctrine of necessity could be legitimately invoked for the preservation of (i) religion (ii) life (iii) reason (iv) progeny and (v) property . The raison d'etre of the doctrine of individual necessity applies with full force to the doctrine of State necessity which is nearly an extension of the v former ‑and is invoked in graver situations of National importance and comprehension. In Verse 59 of Sura AL-Nissa the Muslims have been enjoined to submit to Allah, His messenger and those in authority from amongst them. The obedience of the latter is not, however, absolute and unqualified but is subject to the condition that the commands of the ruler should be in conformity with and not in violation of the Islamic injunctions so much so that even the allegiance to the Holy Prophet has been made contingent on this very condition as would be clear from Verse 12l of Sura Al-Mumtahnah :‑. They shall not disobey thee in any just matter. This is further clear from the following two traditions of the Holy Prophet (peace be upon him);‑‑ (1) Whoever disobeys Allah shall not be obeyed. (2) There is no obedience of the creature in disobedience of the Creator. On assumption of the Office of Amir‑ul‑Momineen, Abu Bakar, the First Caliph addressed the audience in the following words :‑ Obey me so long as I obey God and His messenger and if I disobey them don't obey me. It is thus abundantly clear that submission to the authority of the ruler and obedience to his commands does not extend to illegal and un-Islamic directives or orders. During the Umayyad and the Abbasid Caliphates when the Muslims had to deal with unjust and tyrannical rulers, the Muslim doctors were often confronted with the problem as to whether the community should unquestionably submit to the authority of these rulers, or whether in view of the above injunctions and traditions the people were under an obligation to rise and revolt against them. It would not be out of place to refer in this context to two technical expressions used by the Muslim jurists. One is Umam Matghalib a ruler who captures political power and takes effective control of the administration of the country. In fact Redulmuhtar refers to three modes of appointment of the Imam : (i) By the allegiance of the leading personalities ; (ii) By nomination of the predecessor ; and (iii) By capturing political power by force i.e Umam Matghalib . According to the Hanfis such a ruler could be accepted on the. doctrine of necessity. The other expression is Kharooj i. e. to rise in revolt against the ruler of the time who is unjust, tyrannical and habitually disobeys the Islamic injunctions. It would be interesting to note that Imam Abu Hanifa had used the technical expressions of Imam Bil‑Haq and Imam Bil‑Fehl which are respectively synonymous ‑with de jute and de facto, the two oft‑repeated terms with which we are so familiar. In fact one is deeply impressed by the most reasonable and realistic attitude of the Muslim jurists in regard to this very sensitive and complicated issue. While on the one hand great emphasis is laid on the maxi mum tolerance of an unjust ruler in the wider interests of public order, pre vention of chaos, and bloodshed, such considerations become irrelevant when he openly transgresses the limits of Allah, and is unjust and tyran nical. Taking a balanced view Imam Abu Hanifa adopted a middle of the road course and did not subscribe to the extremist stand taken by the Moatazzilites and the Khawarij. on one hand and the reactionary Murhiba on the other. He held that Kharooj against an unjust ruler was not lawful so long as there was no interference with the orderly running of the Government, people were free to offer prayers. perform pilgrimage and the Courts of law continued to function properly. His own conduct in supporting the Kharooj of Zain Bin Ali grandson of Imam Hussain and brother of Imam Baqar in the first instance and subsequently of Muhammad Bin Abdullah in 145 Hijra against the Abbasid Caliph Al‑Mansoor is also very significant. This balanced attitude of Imam Abu Hanifa was based on a rational interpretation of the two apparently divergent traditions of the Holy Prophet. In one of these emphasis was laid on the imperativeness of the obedience of Umam Matghalib a de facto ruler and it was observed that people were under an obligation to obey him even if he were an ugly abyssinian with chopped off nose provided he captured power with a bona fide intention of delivering the Nation from the clutches of an unjust tyrant and himself observed the limitats of Allah. In the other the Muslims have been enjoined to rise in revolt against an unjust ruler and if killed in action have been described as martyrs. Coming now to the circumstances of the instant case, my Lord the Chief Justice has fully explained the factual position as it obtained before the Arm took over on 5‑7‑1977. The Court could not fail to take judicial notice o F the crisis which developed by way of protest against the alleged rigging of the General Elections when the entire nation rose against the Government of Mr. Bhutto. There was complete break‑down of law and order, several pre cious lives were lost and the administration of the major cities had to be hand ed over by him to the Armed Forces which too were unable to cope with the situation and restore normalcy. The allegations of huge purchases of arms and their large‑scale distribution amongst the members of the PPP in the country with a view to prepare them for civil war do not appear to have been specifically denied in the rejoinders filed by the petitioner or by Mr. Bhutto himself. It would not therefore, be too much to hold that the country was on the verge of a conflagration. The Constitution did not contemplate such a situation nor did it offer a resolution of the crisis. It was in this background that respondent No. 1 moved in, for a temporary period and with the limited object of restoring normalcy and holding free and fair Elections as repeatedly declared by him. The doctrine of necessity is, therefore, attracted with full force in these circumstances as explained by my Lord the Chief Justice. I fully endorse his Lordship's exposition of the constitutional position in regard to the scope of the validity of the actions of the new Regime and the conditions and limitations attached thereto. MUHAMMAD AKRAM, J.‑I have the advantage of having gone through the leading judgment proposed by my Lord, the Chief Justice for announce ment. I have no hesitation in fully agreeing with his masterly. analysis of the facts, exposition of the legal tangles and conclusions so lucidly recorded by him in this case involving very difficult and complicated questions of great constitutional importance. I would, however, respectfully like to dilate upon some of the legal aspects of Hans Kelsen's Pure Theory of Law (positivism), the implications of the Martial Law currently in‑force in the country and the doctrine of necessity, invoked before us, merely to supple ment what has already fallen from his pen. Hans Kelsen's Pure. Theory of Law. Mr. A. K. Brohi, appearing for the Federation of Pakistan, with his great erudition and philosophy that he brought. to bear into this case, has done his best to analyses and explain this theory and its implications at length before us. Therefore, in fairness to him it is necessary in the first instance to enter upon a detailed analysis of this theory as advocated before us. The positivist movement started with the beginning of the nineteenth century. It represented a reaction against the a priori method of thinking that characterised the preceding age. Prevailing theories of Natural Law shared the common feature of turning away from the realities of actual law in order to discover in nature or reason principles of universal validity. Actual laws were then explained or condemned according to these canons. But the positivists believed that law as it is actually laid down (positivism) has to be kept separate from the law that ought to be. They made the distinction between "what the law is" from "what the law ought to be". Bentham (1748 1832) and . Austin (1790‑1859) were the protagonists of the British theory of positivism with their firm belief in the separation of law and morals. Thus according to them laws even if morally outrageous, were still laws. After them Professor H. L. A. Hart is regarded as the leading contemporary representative of British positivism. He defends the Positivist School of Jurisprudence from many of the criticisms which have been levied against its insistence on distinguishing the law that "is" from the law that "ought" to be. But the pure theory of law propounded by Professor Hans Kelsen (1881‑1973) marks the refined development to date of analytical positivism. He argued that a theory of Law must deal with law as actually laid down, not as it' ought to and it must be shorn of and free from all variable factors such as ethics, politics, sociology, history etc. It must, in other words, be "pure" (rein). Knowledge of law, according to Kelsen, meant a knowledge of "norms". ; and a norm is a proposition in hypothetical form. Jurisprudence consists of the examination of the nature and organisation of normative propositions. It includes all norms created in the process of applying some general norm to a. specific action. According to Kelsen, a dynamic system is one .in which fresh norms are constantly being created on the authority of an original, or basic norm, a "Grundnorm". Around these points, Kelsen unfolded his picture of law. It appears to him as a hierarchy of norms with the "Grundnorm" forming the apex of the pyramid. If a new fact or event is observed which fails to conform to a scientific "law", then that "law" has to be modified to include it. It is a cardinal feature of Kelsen's theory that laws consist of "ought" propositions. The prescription of sanction imparts law‑quality to a norm, or putting it in another way, "Law is the primary norm, which stipulates the sanction." According to Kelsen, in every legal order, no matter with what proposition of law one begins, a hierarchy of "oughts" is traceable back to some initial, fundamental "ought" on which the validity of all the others ultimately rests. This is the Grundnorm, the basic or fundamental or apex norm. The Grundnorm need not be the same in every legal order, but a Grundnorm of some kind there will always be, whether, e.g. a written Constitution or will of a dictator. The Grundnorm is not the Constitution, it is simply the presupposition, demanded by theory, that this Constitution ought to be obeyed. Therefore, the Grundnorm is always adapted to the prevailing state of affairs. The Grundnorm only imparts validity to the Constitution and all other norms derived from it. In Great Britain, for instance, the entire legal order is traceable to the propositions that the enactments of the Crown in Parliament and judicial precedents ought to be treated as "law". Accord ing to Kelsen every rule of law derives its validity from some other rule standing behind it. But the Grundnorm has no rule behind it. Its validity has therefore to be assumed for the purpose of theory. A rule is valid, not because it is, or is likely to be, obeyed by those to whom it is addressed, but by virtue of another rule imparting validity to it. The validity of each. individual rule does depend on the effectiveness of the legal order as a whole, or in case it is "by and large" effective. It is of the utmost importance that the Grundnorm should secure for itself a minimum of effectiveness, i. e., a certain number of persons who are willing to abide by it and it should command a minimum of effectiveness. If a Grundnorm ceases to drive a minimum of support, it ceases to be the basis of the legal order, and any other proposition which does obtain support will replace it. Such a change in the state of affairs is said to amount to a "revolution" in law. From the above premises, Hans Kelsen in his General Theory of Law ,and State (pages 118‑119), proceeds on to the discussion of the subject of "Change of the Basic Norm" or the Grundnorm. In this connection he observed;

"It is just the phenomenon of revolution which clearly shows the signifi cance of the basic norm. Suppose, that a group of individuals attempt to seize power by force, in order to remove the legitimate government in a hitherto monarchic State, and to introduce a republican form of government. If they succeed, if the old order ceases, and the new ' order begins to be efficacious, because the individuals whose behaviour the new order regulates actually behave, by and large, in conformity with the new order, then this order is considered as a valid order. It is now according to this new order that the actual behaviour of individuals is interpreted as legal or illegal. But this means that a new basic norm is presupposed. It is no longer the norm according to which the old monarchical constitu tion is valid, but a norm according to which the new republican constitution is valid, a norms endowing the revolutionary government with legal authority. If the revolutionaries fail, if the order they have tried to establish remains inefficacious, then, on the other hand, their undertaking is interpreted, not as a legal, a law‑creating act, as the establishment of ‑a constitution, but as an illegal act, as the crime of treason, and this according to the old monarchic constitution and its specific basic norm." It is this passage in Kelsen which forms the basis of the decision by the Supreme Court of Pakistan in the State v. Dosso P L D 1958 S C (Pak.) 533, and which is the corner stone of. the entire argument elaborately advanced before us by Mr. A. K. Brohi for the respondent in support of the Proclamation of Martial Law and the regime with its new Legal Order that has allegedly become effective and has supplanted the old Legal Order. Dias in his Jurisprudence (Fourth Edition), has adversely criticised Kelsen s theory. He observed that the Grundnorm is a key concept in his theory but that it raises many difficulties. Some writers have pointed out, with a hint of criticism, that in whatever way effectiveness of the Grund norm is measured Kelsen's theory has ceased to be "pure" at this point. For effectiveness would seem to depend on those very sociological 'factors which he so vehemently excluded from his theory of law. If, ' then, the Grundnorm upon which the validity of all other norms depends is tainted with impurity, it is arguable that the others are similarly tainted. Another line of attack on the claim to purity is that Kelsen's whole scheme is an a priori one dependent on empirical observations for confirmation. He offered it. as a "theory of interpretation'', which implies that it is not a description but a model and thus evaluative in function. This criticism touches, riot the theory, but his claim to its purity. According to him the effectiveness of the legal order as a whole is prerequisite to the validity of each single rule‑ in it. If as seems clear, some inquiry into political and sociological factors has to precede, or at least is implicit in, the adaptation of a particular Grundnorm as the criterion of validity and if the validity of every part of the system is dependent upon the continued effectiveness of the whole, then on his own showing the study of jurisprudence should include the study of the social environment. Dias has further pointed out that Kelsen's picture is that of a legal order viewed only in the present time‑frame, which explains his exclusion of moral, sociological and other considerations from the question of the validity of any rule. Dias has emphasised that the effectiveness of a legislative .medium is not a condition of its own "law quality" but only a factor which influences Courts to accept and continue accepting it. He further observed that a situation may be supposed in the midst of a' revolution when the old order has gone and no new order has effectively replaced it. In such a lacuna the Court can continue to apply as "laws" the enactments of the old order even though it is no longer effective. The label "laws" attaches to whatever the Courts are prepared to accept as such. Even if the old order is ineffective and there is a new, effective order, the Courts may still treat the old order as "legal" and the new as "illegal" or simply "de factor". Not only is the legality of a revolutionary regime independent of effectiveness, but it also has jurisdictional (spatial) and temporal dimensions. Thus, although the Rhodesian regime was eventually accepted as legal by the Rhodesian Courts, British Courts have still not done so. In Adams v. Adams (A. G. intervening) ((1970) 3 All E R 572) a British Court refused to recognise a divorce decree pronounced by a Rhodesian Judge who had not taken the oath under the 1961 Constitution. This shows that legality depends .on the jurisdiction in which the matter is considered, quite apart from effectiveness. The temporal dimension is brought out by a decision of the Pakistan Supreme Court in Jillani v. Government of Punjab (P L D 1972 S C 139) which rejected. effectiveness altogether as the criterion of legality. In conclusion, according to Dias the effectiveness of the legislative authority is not a condition of the validity either of "laws" or even of itself. It is a factor which in time induces the Courts to accept such authority. Nor is it the only such factor. Others are farce propaganda and packing the Bench with Judges who will comply, all of which only reinforce the contention that the legality of the law‑constitutive medium only comes about when the Courts accept, or are made to accept it. These are some of the formidable arguments levelled by Dias, not merely at Kelsen, but at positivism in general. Kelsen gave no criterion by which the minimum of effectiveness is to be measured. All he maintained was that the Grundnorm imparts validity as long as the "total legal order" remains effective, or, as he later put it, "by and large" effective. As to this it may be asked, in the first place, for how long must effectiveness be maintained for the requirement to be satisfied. Kelsen drew no distinction; between effectiveness, which makes people obliged to obey, and effectiveness which makes them feel under an obligation to do so: Dias maintains that Grundnorm is a very weak point in Kelsen's theory. It does not apply in revolutionary situations, in which case it ceases to be a "general theory" or, if general it ceases to be true. In settled conditions it teaches nothing new in revolutionary conditions, where guidance is needed, it is useless, for the choice of a Grundnorm is not dictated inflexibly by effectiveness but is a political decision, as Kelsen himself admitted. Lord Lloyd in his Introduction to Jurisprudence (Third Edition), on page 269, in all fairness, while criticising Hans Kelsen's theory, has at the same time paid compliments to him and said that there is perhaps, no single writer in this century who has made a more illuminating analysis of the legal process than him, by his lucid exposition. But according to Lord Lloyd the Basic norm is a very troublesome feature of Kelsen's system. We are not clear what sort of norm this really is, nor what it does, nor indeed, where and how to find it. In his latest formulation he tells us that it is not "positive", but is presupposed in juristic thinking and is "meta-legal" only. Professor Goodhart was doubtful of the value of an analysis which did not explain the existence of the basic norm on which the whole system was founded. According to Lord Lloyd it may be argued that Kelsen's theory, being description of legal science, can only indicate the role of the jurist and can in no way assist the Judge. This would suggest that those Judges who relied upon Kelseri's theory to solve past‑revolution legal problems were labouring under the self‑deception that he would assist them. The analysis of Kelsen's theory has raised some of the difficulties inherent in' his basic norm. His theory is only useful to the legal. scientist and not the Judge and only in a residual case, and, further, that the kingpin of the whole structure rests upon the shaky foundation of a loose concept of "effectiveness'' Gustov Radbrach was a German thinker who had lived through .the Nazi regime and reflected upon its evil manifestations in the legal system. He was a protagonist of the positivist doctrine until the Nazi tyranny, but he was converted by his experience of the environments round him. In 1944 a woman, wishing to be rid of her husband, denounced him to the authorities for insulting remarks he had made about Hitler while home on leave from the German army. The wife was under no legal duty to report his acts, though what he had said was apparently in violation of statutes making it illegal to make statements detrimental to the Government of the Third Reich or to impair by any means the military defence of the German people. The husband was arrested and sentenced to death, apparently pursuant to these statutes, though he was not executed but was sent to the front. In 1949 the wife was prosecuted in a West German Court for an offence described as illegally depriving a person of his freedom (rechtswidrige Freiheitsbe‑raubung). This was punishable as a crime under the German Criminal Code of 1871 which had remained in force continuously since its enactment. The wife pleaded that her husband's imprisonment was pursuant to the Nazi statutes and hence that she had committed no crime. The Court of appeal to which the. case ultimately came held that the wife was guilty of procuring the deprivation of her husband's liberty by denouncing him to the German Courts, even though he had been sentenced by a Court for having. violated a statute, since, to quote the words of the Court, the statute "was contrary to the sound conscience and sense of justice of all human beings." This reasoning was followed in many cases which have been hailed as a triumph of the doctrines of natural law and as signalling the overthrow of positivism. The bitter experiences in these cases have thus made a great dent into ‑the Pure Theory of Law (See 71 Harward Law Review 591 at pages 618‑619). Similarly a number of authors in their articles in some of the leading law journals (1970) 28 Cambridge Law Journal 75 by Dias ; (1968) 26 Cambridge Law Journal 223 by Dias; 1971 Cambridge Law Journal 103 by Harris; 1963 Modern Law Review 34 by Julius Stone; and .1967 Modern Law Review 1.57 by Erie have exposed the weaknesses in this theory. In addition to these in Miss Asma Jillani v. The Government of the Punjab this Court has held that Kelsen's theory was, by no means, a universally accepted theory nor was it a theory which could claim to have become a basic doctrine of the science of modern jurisprudence. . He was propounding a theory of law as a "niece jurists' proposition about law". He did not lay down any legal norm or legal norms which are "the daily concerns of Judges, legal practitioners or administrators" Moreover, as observed by my Lord, the Chief Justice, ours is an ideological State of the Islamic Republic of Pakistan. Its ideology is firmly rooted in the Objectives Resolution with emphasis on Islamic laws and concept of I morality. In our way of life we do not and cannot divorce morality from f law. Therefore the Pure Theory of Law is not suited to the genesis of this State. It has no place in our body politics and is unacceptable to the Judges charged with the administration of justice in this country. In the light of the above discussion, before us Mr. A. K. Brohi, learned counsel for the respondent, undertook in vain to salvage Dosso's case after it had been effectively overruled in Miss Asma Jillani's case by rejecting Kelsen's Pure Theory of Law. S. A. De Smith in his invaluable treatise on the "Constitutional and Administrative Law" (Chapter 22) has observed that when an unlawful assembly is proceeding to the execution of its purpose, it constitutes a riot. If it goes on to execute that purpose in a violent manner which alarms a person of reasonable courage in the neighbourhood, it constitutes a riot. Akin to riot is the common‑law offence of causing an affray by fighting or threats of force giving rise to alarm in the neighbourhood. Troops may be called in to disperse rioters in the last resort they should normally act only under the direction of the competent civil authorities, and the degree of force they use must be proportionate to the evil to be averted. In dealing with the problems of "National Emergencies" (Chapter 23) the learned author further observed that the military officer on the spot may have to make a snap decision whether ‑to use force, and if so, how much, to quell a not Judges and writers have insisted many times over that soldiers are entitled, indeed obliged at common law, to use all necessary force, including deadly violence in the last resort, to disperse rioters who are doing serious and extensive damages to property. But when riot passes into rebellion or guerilla warfare, emphases shift and other principles intrude. The civil power primarily responsible for containing and suppressing an uprising must be the Govern ment in office: The military authorities will be obliged to act in its support. If the situation moves a stage farther and the civil authorities become incapable of governing' because of large‑scale insurrection, powers to do what ever may be needed to restore peace, may be handed over to (or assumed by) the military authorities. This is a new situation, different both in degree and kind. A state of Martial Law will then exist and the powers of‑the General' Officer Commanding the Forces will, so it is usually thought, become non -justiciable, and for the time being, absolute, subject only to consultation with the civil power. According to the learned author martial law has been aptly described as "a peculiar system of legal relations" which arise in time of civil war or insurrection, or, it may be added, invasion. It is a state of affairs, not a settled body of rules, though rules and orders will be promulgated and enforced by the military authorities as they see fit. Again Martial Law can be used to describe an entirely different kind of situation‑one where military officers overthrow the legitimate Government, establish a new regime and proclaim a state of Martial Law. The phenomenon is all too familiar in many countries. It has not arisen in Britain in modern times and the constitutional law books of that country are therefore, silent on its legal consequences. Briefly, one can say that the Judges and officials are not obliged to recognize the validity of such a proclamation, any more than they are obliged accept any other revolutionary coup d'etat, but that if they defy the mailed fist, they cannot expect to retain office for long. If they do recognize the suppression of the old order as valid, successful revolution has begotten its own legality. In this connection the learned author has further observed that a state of Martial Law may be introduced by or without a proclamation. A procla mation purporting to introduce a state of Martial Law is of no legal effect in itself ; Martial Law is justified only by paramount necessity. If the ordinary Courts are still sitting, it seems that they have jurisdiction to determine whether "a state of war" (not necessarily war in the international sense, but a state of affairs requiring military pacification by the imposition of Martial Law) exists in an area where they normally have jurisdiction. In determining this question they will give heavy weight to the opinion of the local military commander, but his opinion is not binding on them. If they decide that a `state of war' does exist, then (according to the present weight of legal opinion) they should decline to review the legality of anything done by the military authorities in the purported discharge of military responsibilities till, in their independent judgment, the `state of war' has terminated. In the case of D. F. Marais v. The General Officer Commanding the Lines of Communication and the Attorney‑General of the Colony 1902 A C 109, in South Africa an application was made on behalf of Marais, a civilian subject of the Crown, for his immediate release from military custody, on the ground that his arrest and imprisonment were in violation of the fundamental liberties to which subjects of His Majesty were entitled. But his application was dismissed by the Supreme Court of the Cape of Good Hope, inter alia, relying on an affidavit of the gaoler concerned to the effect that be was detained by. an order of the military authorities for contravening certain Martial Law Regulation though owing to military exigencies he was not prepared at the time to disclose the charges against him. The Privy Council refused the petition for special leave to appeal from the order of the Supreme Court with the observations that :‑ . "The truth is that no doubt has ever existed that where war actually prevails the ordinary Courts have no jurisdiction over the action of the military authorities. Doubtless cases of difficulty arise when the fact of a state of rebellion or insurrection is not clearly established. It may often be a question whether a mere riot, or disturbance neither so serious nor so extensive as really to amount to a war at all has not been treated with an excessive severity, and whether the intervention of the military force was necessary but once let the fact of actual war be established, and there is an universal consensus of opinion that the civil Courts have no jurisdiction to call in question the propriety of the action of military authorities." Coke, Rolle and Hale were of the opinion that time of peace is when the civil Courts are open, and that when they are closed it is time of war. The decision in Marais's case, however, shows that this test is not conclusive and that existence of a state of war in a given district is compatible with the continued functioning for some purposes of the civil Courts within the district. This decision gave rise to four articles on martial law in (1902). 18 Law Quarterly Review 117; 113, 143 &

152. H. Erie Richards in his article on pages 133/142 has mentioned that this decision has met with some criticism even from those whose legal vision is not coloured by their political sympathies. In the context of the above findings the learned author remarked that "it must be left to Courts to determine whether any particular act be or be not in excess of necessity of the occasion in question in each case." He further observed that in times of emergency, falling short of war, the Court may decide "whether there was sufficient necessity to justify any suppression of the ordinary law and indeed there would be no security for the subject at any time if it was left to the uncontrolled discretion of the military to take such action at their pleasure. But when once war is declared and is raging in the country, that question is no longer open to doubts that it is then necessary to interfere with the ordinary law to some extent, . . . . ." The learned author, in offering his further comments on the judgment in Marais's case observed that it has been contended that the existence of war in the view of the law does not depend on the actual fact of whether war is raging in the country or not, but is to be determined by the fact of whether the Courts continue to sit ; an artificial rule which does not commend itself, apart from authority, to reason. The necessity for taking action which infringes on rights of property or liberty cannot depend on the fact that the Courts continue or do not continue to sit it depends on the necessity created by the presence of an enemy in the country. The military indeed can at their will prevent or allow the continuance of the sittings of the Courts. The real test is the necessity of the occasion in each case. In summing up the learned author remarked that "War is self‑evident, and the fact that the Courts may continue to sit cannot prevent the existence of war." According to another article on "the case of Marais" contributed by Cyril Dodd (pages 143‑151) martial law arises from the State necessity, and is justified at the, common law by necessity, and by necessity alone‑a necessity which the Courts may at‑ any time inquire into, so far at any rate as they reasonably can without injury to the State arising from the disclosure of matters contrary to the public interest and endangering the public safety. The learned author observed that in Marais's case when the petition came before the Privy Council the chief argument, indeed the only argument really relied on, was that there was a fixed principle that, if the ordinary Courts were open, civilians must be dealt with by them if charged with offences, and not by military persons or tribunals ; that a place where the Courts open crust be regarded at a place in which there is peace, and that when the Court are open it is `time of peace' for all legal purposes and in all Courts of law, This contention. in his opinion was undoubtedly supported by a considerable show of authority, and would appear in more ancient times to have been generally held as a true statement of the law. But this supposition was based on fiction rather than on reality. 1n the opinion of the learned author it was not to be expected that a Committee of the Privy Council should feel bound by any such general rule to the extent of being compelled to hold, contrary‑ to actual fact, that war did not exist, simply because where the war in fact existed the Courts were sitting. It distinctly puts an end to the ancient rule, that because for some purposes the Courts are open at a place, that place must .be held to be one where peace exists, no matter what the actual fact may be. According to the learned author in the case of Marais even the limited proposition that the authorities are not responsible to the Courts sitting during the war. would appear too wide. It would seem to depend upon the question of whether the Courts are able to sit for all purposes, and are allowed by the military power to do, so, and upon whether the matter is one they can, without danger to public safety and the proper prosecution of the war, investigate and deal with. Likewise Frederick Pollock in his article (pages 152‑158) of the Law Quarterly . Review has commented on the Privy Council judgment in Marais's case and in his opinion the only point decided then was that the absence of visible disorders and the continued sitting of Courts are not conclusive evidence of state of peace. In the fourth article (pages 117‑7 32) W. S. Holdsworth, on the authority of Cockburn, C: J. observed that martial law of the kind, as a distinct code of rules, does not exist. It is merely the application of the common law principle "that life may be protected and crime prevented by the immediate application of any amount of force which, under the circumstances may be necessary." It allows an amount of force exactly proportionate to the necessities of the case. This is the view most strongly supported, especially by the more recent authorities. The American views on the subject are contained in a copy of a letter of Pennsylvania Assembly to Governor Robert Marris, November 11, 1755 under the heading "The National Security Interest and Civil Liberties" published in (1971‑72) 85 Harward Law Review, 1133/1326. In this a separate section is devoted to the subject . of "The Exercise of Emergency Powers" to cope with disorders of sufficient magnitude and intensity assuming national importance and threatening the functioning of the Government. In such cases safeguards of judicial review are necessary as a check against any abuse of power. But in this connection the standard laid down by the Supreme Court of America for reviewing the use of emergency measures has varied widely. In Ex Parte Milligan ((1866) 71 U S 2) which involved emergency measures taken by President Lincoln during the Civil War, the Court verged on taking the extreme view that' Government action in emergencies is subject to the same constitutional limitations as are actions taken in normal times. But in contrast to this, the Supreme Court appears to have gone to the other extreme in Moyer v. Peabody ((1909) 212 U S 78), a 1909 case reviewing actions taken by a State Governor pursuant to a proclamation of martial law during a violent labour dispute. The Court seemed to view the choice of what particular measures to take during an emergency as an exercise of political power with which the Courts should not interfere as long, at least, as the choice was made in good faith. Moreover, the Court held "that the Governor's declaration that a state of insurrection existed is conclusive of the fact." Thus, Moyer came to stand for the proposition that the executive has nearly complete discretion in its exercise of emergency powers, both with respect to. declaring the emergency and to choosing the means of meeting it. This stance, however, granted an excessive degree of latitude to the executive and was ultimately replaced in the case of Sterling v. Constantin (1932) 287 U S 378, by a standard of review that scrutinized the Government response to find a "direct relation" between the "measure taken and the goal of restoring order." In Sterling the Governor of Texas bad declared martial law in order to have the militia impose a production limit which a Federal Court bad enjoined the State's regulatory commission from imposing. The emergency claim was based upon an alleged but unsubstantiated fear that the local populace would rise up in order to stop the plunder of the vicinity's oil resources. In the face of this claim the Court refused to follow Moyer, first distinguishing between the conclusiveness of the executive's declaration of emergency and its choice of measures, and then subjecting the latter to a "direct relation test." Similarly, in Korematsu v. United States ((1944) 323 U S 214 (223‑224)) and Hirabayashi v. United States ((1943) 320 U S 81 (95)) the most recent cases in which the Supreme Court decided the constitutionality of emergency measures taken by the Federal Government during wartime, the Court undertook an independent, albeit restrained, inquiry as to whether there was a reasonable basis in fact for the conclusion that the measures were "necessary" to meet the particular dangers posed by the emergency situation. However, on facts in these two cases the Court concluded that the Govern ment's fear of espionage and sabotage by persons of Japanese ancestry was reasonable and therefore, upheld the curfew directed against them and an executive order passed against them excluding them from the West Coast. In the above‑mentioned letter it is observed that to prevent the abuse of emer gency powers, Courts must review both whether an emergency existed, and, more important whether the measures taken were necessary to restore order. "The best standard to adopt would be a strict standard of necessity, which would require that there not be available to the Government alternative means of coping with the emergency that were as effective as the measures employed but less restric tive of individual liberties". The less‑restrictive alternative analysis is in a sense inherent in any judicial review of Government actions on the basis of their reasonableness, since the reasonableness of a measure necessarily depends on the alternatives available. However, the proposed application of less‑restric tive‑alternative analysis is broader, for it implies that whenever a less restrictive alternative of equal effectiveness can be shown, the measure taken will be invalidated. (See pages 1294‑1297 of the Report). In this connection (on pages 1321‑22) it is observed that emergency situations, whether characterized primarily by mass public disturbances or by guerilla‑like violence, can differ greatly as to their magnitude. At the most severe extreme, the Government might be faced with a rebellion so widespread and intense that it was unable to carry out its normal functions through civilian institutions. It might then be necessary to govern by martial law. Although there has been much confusion as to the meaning of this term, it is clear that martial law is not "law" at all in the sense of a body of rules, but rather refers to the way in ‑ which governmental power may be exercised. Commentators generally define martial law as the use of military forces to carry on the functions of civil Government, carefully distinguishing it from. the mere use of the military as an aid to the civilian Government. Although Courts still occasionally use language suggesting that a declaration of martial law results in the complete abandonment of constitutional safeguards against actions taken by the military, the "direction relation" test of Sterling v. Constantin was formulated with reference to and applied to overturn emergency measures taken by the military pursuant to an executive declaration of martial law. There is. no reason to believe, therefore, that judicial review of Government actions in an emergency should depend in any way on whether there had been a declaration of martial law or on whether the emergency measures were carried out by military or civilian authorities. In either case the standard should be the necessity of the measure to restore order. The learned author of "the Constitutional and Administrative laws" has also discussed the subject of the "Ultimate Authority in Constitutional law" (Chapter 3) in its historical background. This presents a very useful, absorbing and greatly informative study of the problems engaging our attention. I cannot resist in quoting here from him in extenso. He observes that a written constitution is regarded as the primary source of legal authority within a State. But then what is it that confers this legitimating quality on the constitution ?, he asks and in his opinion this question produces some convoluted answers. In the large majority of independent States,‑in Australia there has been, at one time or another, a breach of legal continuity, and a constitution has been adopted or changed in a manner unauthorized by the pre‑existing legal order. This is already true of a high proportion of the African States which have become independent during the last decade or so. Since independence they have had revolutions and coups d'etate ; often the constitutional instrument has itself been abrogated and replaced, or suspended and modified, in a manner precluded by the independence constitution. And a few countries have deliberately chosen to adopt a new constitution peacefully but in a manner unauthorised by the pre‑existing constitution. This is an assertion of legal nationalism, of what is called `constitutional autochthony, designed to demonstrate that the authority of the constitution is rooted in native soil, not derived from an imperial predecessor. Such a course has been followed in Eire (the Republic of Ireland), India and Sri Lanka (Ceylon). A constitution is adopted by a Constituent Assembly in the name of people, or presented to the people for their approval it will not receive the royal assent like normal constitutional amendments. Take again the constitution of the United States of America. Since its adoption in 1787 it has remained intact, apart from amendments duly made in terms of the Constitution. But was the Constitution valid in the first place, and if so, why ? In 1776 the Thirteen Colonies had unlawfully 'declared their independence of Britain, and had repudiated the sovereignty of the United Kingdom Parliament. `We, the People of the United States', proceed to `ordain and establish a constitution'. In fact it was formulated at a convention consisting of delegates from the several‑ States and then ratified by the Congress. The name of the `sovereign' People was invoked to confer upon the constitu tion moral authority and binding force. The learned author says that the vague concept that ultimate `sovereignty' resides in the `people' is widely acceptable because of its political overtones. Even where a constitution has been overturned from above or below by manifestly illegitimate means, it is commonplace for the de facto holders of power to assert that they derive their mandate from the people, because it is awkward to be stigmatized as an undemocratic usurper. And by producing a constitution approved. by or on behalf of the people, the accolade of legitimacy is achieved. It is one thing to say that Government should rest on the consent of the governed ; it is another thing to proclaim that a Constitution has acquired the force of supreme law merely because it has obtained the approval of an irregularly convened Constituent Assembly or of a majority of the electorate or both. Yet to assert that all constitutions (or constitutional amendments) procured in a manner inconsistent with the pre‑existing legal order are legally invalid will land one in a morass of absurd and insoluble difficulties. If the Constitution of the United States is a nullity, then presumably only the United Kingdom can validate (with retroactive effect) the millions of governmental measures and judicial decisions taken in that country since Independence. This is plainly ridiculous, for nobody doubts that the United States became an independent State in international law before the end of the eighteenth century. In any case, whence did the United Kingdom Parliament derive its omni-com petence ? In July 1688 James II dissolved his Parliament. In December he fled the country, having dropped the Great Seal of the Realm in the Thames a few days earlier. William of Orange, having reached London, met groups of peers, former members of Parliament and other notables ; they advised him that elections should be held in the boroughs and counties. The Convention of Lords and Commons met in January 1689, and next month offered the Crown to William and Mary jointly, subject to conditions set out in a Declaration of Rights. The offer having been accepted, the Convention passed an Act asserting that it was Parliament, acid then enacted the Bill of Rights, incorporating the Declaration of Rights. Clearly the Convention `Parliament' has been irregularly summoned ; its affirmation of its own legal authority carried the matter no farther ; there had been no King from December 1688 (assuming that James It was deemed to have abdicated or to have forfeited the Crown) till February 1689 ; William III had no hereditary legal title to the throne and therefore had no authority to assent to bills. Has every purported Act of Parliament since 1688 been a nullity ? Is a Stuart still the rightful King ? Once questions such as these are asked, one must acknowledge that in. certain circumstances a breach of legal continuity, be it peaceful or accom panied by coercion and violence, may have to be treated as superseding the constitutional and legal order and replacing it by a new one. Legal theorists have no option but to accommodate their concepts to the facts of political life. These are some of the perplexing questions that have buffled the legal theorists. One of them Hans Kelsen advanced his Pure Theory of‑ Law which has already been rejected by us as unacceptable to the norms of our own country. But I find that the principles of State necessity and the maxim "Salus populi suprema lex" is fully attracted to the peculiar facts and circum stances of this case as a validating factor. According to S. A. de Smith the principle of necessity, rendering lawful what would otherwise be unlawful, is not unknown to English law ; there is defence of necessity (albeit of uncertain scope) in criminal law, and in constitutional law the application of martial law is but an extended application of this concept. But the necessity must be proportionate to the evil to be) averted, and acceptance of the principle does not normally imply total abdication from judicial review or acquiescence in the supersession of the legal order ; it is essentially a transient phenomenon. State necessity has been judicially accepted in recent years as a legal justification for ostensibly unconstitutional action to fill a vacuum arising within the constitutional order in Pakistan, Cyprus, Rhodesia and Nigeria. To this extent it has been recognised as an implied exception to the letter of the constitution. And perhaps it can be stretched far enough to bridge the gap between the old legal order and its successor." In these circumstances and for these additional and supplementary reasons I have agreed with my Lord, the Chief Justice on the facts and law, as well as the conclusions formulated by him. DORAB PATEL, J.‑‑I have had the advantage of reading the judgment proposed to be delivered by my Lord the Chief Justice. I respectfully agree with it and would further observe that in my humble opinion the principle laid down by the Federal Court in the Reference by His Excellency The Governor‑General PLD1955FC435, will have to be followed in resolving the impasse created by the constitutional break‑down. QAISAR KHAN, J.‑‑After going through the very elaborate, illuminating and scholarly judgment of my Lord the Chief Justice proposed to be delivered in this case, it is with the greatest respect that I have to state that though 1 agree with my Lord the Chief Justice that (he petition be dismissed but I have arrived at the conclusion on quite different grounds and I shall, therefore, record my own judgment. The facts and circumstances leading to the filing of this petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1971 need not be reiterated as these have already been given in great detail in the proposed judgment of my Lord the Chief Justice. In my opinion the main point for determination in this case is as to whether this Court has the jurisdiction to entertain and adjudicate upon the petition in view of the Proclamation of the 5th of July 1977 and the Laws (Continuance in Force) Order, 1977 of the same date. After hearing very learned and lengthy arguments of the learned counsel for the parties and the learned Attorney‑General I have come to the conclu sion that this Court has no jurisdiction in the matter. My reasons for coming to this conclusion are few and simple. The Constitution of the Islamic Republic of Pakistan was the basic norm of the Country which is also described as the grundnorm, the apex norm or the total Legal Order. This Court was the creation of the said Constitution and jurisdiction had also been conferred on it by the said Constitution. The validity or invalidity of any and every action was tested by the Courts with reference to the Constitution. It may, however, be mentioned here that the provisions of the said Constitution themselves could not be questioned by the Courts. The Courts could not say that such and such a provision of the Constitution was good and such and such bad or that such and such a provision should have been there and such and such should not have been there. At some stage in the arguments it was suggested that the Resolution of March 1949 was the grundnorm in Pakistan and action should be tested keeping that as a touchstone. There is, however, no force in this contention as no body in Islam is above law but under our Constitution of 1973 the President and the Governors had been placed above law and they were not answerable to any Court of law nor could they be tried in any Court. The offence of murder is compoundable according to the Holy Qur'an but we in Courts could not accept compromise in murder cases. The resolution was the wish and ultimate aim for the realisation of the Islamic order but it was not the grundnorm in Pakistan. It was also held so by this Court in the case of Zla‑ur‑Rahman PLD1973SC

49. It is common knowledge and does not require any jurist to be quoted in its support that a Constitution ‑or the basic norm could be annulled, abrogated, destroyed or suspended in two way, one by a Constitutional act, that is to say, by the method provided for in the Constitution for changing or replacing it and the other by an un‑Constitutional act, say revolution or; coup d'etat, which is known as extra‑Constitutional act. In the instant case the Constitution of 1973 was put in abeyance, that is to say, suppressed for) the time being by the Chief of the Army Staff by an extra‑Constitutional act) of issuing a Proclamation on the 5th of July 1977 declaring himself as the Chief Martial Law Administrator. For the running of the Country the Chief Martial Law Administrator who had assumed all powers under the Proclamation issued the Laws (Continuance in Force) Order the same day i.e., 5th of July 1977. Now the validity or invalidity of this action could not be tested on the basis of the Constitution of 1973 as it was no longer there having been suppressed and there was no other superior norm on the basis of which it could be tested. such an action, according to some jurists as Mr. Brohi puts it, is called meta-legal. For judging such a situation we have two authorities of this Court in the field, that of Dosso P L D 1958 S C (Pak.) 531, and Asma Jillani P L D 1972 S C

139. Dosso's case by which the new order could be legitimised cannot be applied as it has been overruled by the Asma's case. Asma Jillani's case does not apply in the present case a the facts and circumstances of this take‑over are quite different from the facts and circumstances of the then take‑over. In the present case under the circumstances prevailing in the country of which we can take judicial not the present take‑over was quite justified for saving the State from total destruction and the Chief of the Army Staff under the circumstances could not be dubbed as a usurper. Now what is to be done .in such a case. Here I agree with Mr. Brohi that in such a situation the Court has to determine certain facts which are even more basic than jurisdictional facts. These are facts which may be termed as Constitutional facts. These facts relate to the existence of the Legal Order within the framework by which the Court itself exists and functions. Jurisdictional facts only relate to the jurisdiction of the Court but Constitutional facts relate to the legal structure within which that juris diction is located. The inquiry as to Constitutional facts is factual and not a legal inquiry. The Court has to find as a matter of fact as to what Legal Order is in operation in the country. There are several indicia which furnish clues to the existence of any particular Legal Order. The most. important of these relate to the aegises under which the three principal organs of the State function. These organs are the Legislature, the executive and the judiciary. Let us examine the position of each in relation to the present situation. The National Assembly constituted under the 1973 Constitution is evidently no longer in existence. It does not even purport to exist. There is no legislative body in existence in Pakistan today which can claim that it is a Legislature within the meaning of that term used in the 1973 Constitution. The executive i.e., the Government servants have accepted the new Legal Order and are working under it. Similarly the People's Party's Government has ceased to exist as a matter of fact. The members who constituted that Government did not even profess to be exercising power and authority in Pakistan today. On the other hand almost all of them including the former Prime Minister have taken an oath in connection with election under the new Legal Order thereby admitting its factual existence. The same is the position of the judiciary. Judges had taken oath under the Constitution of 1973 and there was no provision in the said Constitution for a second oath to be taken by Judges. However, under the President's Post Proclama tion Order 9 of 1977 we were directed to take a new oath or to quit. As a result of the said directive we took the new oath in which there was no mention of the Constitution of 1973. This oath was prescribed by a Presidential Order not in the exercise of powers under the. Constitution of 1973 but in exercise of powers under the Proclamation and the Laws (Continuance in Force) Order of the 5th of July 1977. Incidentally it may be mentioned here that according to Article 2, sub -Article (3) of this Order the President acts only on the advice of the Chief Martial Law Administrator. Now by taking this oath we have conceded the de facto existence of the new Legal Order. Furthermore, amendment was also brought about in the suppressed Constitution which we accepted as valid. The existence of the new Legal Order as a fact has therefore been accepted by all and since it is admittedly effectual beyond doubt for the time being it is therefore to be accepted as the de facto new Legal Order for the time being. So far as I have been able to understand effectualness is the only touch stone on the basis of which recognition to a de facto Government could be accorded by municipal Courts and support for this can be had from STANFORD LAW REVIEW, VOL. 17 PROFESSOR STONE AND THE PURE THEORY OF LAW (Page 1139). Since the Order is of a supra- Constitutional nature all questions are now to be answered with reference to it. The assertion that the Courts were functioning under the old Constitution which has been revived by the Laws (Continuance in Force) Order is fallacious. When by the Proclamation the Constitution was put in abeyance the Courts automatically ceased to exist. They started functioning again only by the force of the Laws (Continuance in Force) Order and not by virtue of the old Constitution. The Laws (Continuance in Force) Order nowhere lays down that the Constitution has been revived. As a matter of fact section 5 of it which is reproduced below clearly lays down that it is still in abeyance: "Notwithstanding the abeyance of the provisions of the Constitution subject to any order of the President or Regulation made by the Chief Martial Law Administrator all laws other than the Constitution and all Ordinances, Orders‑in‑Council, Orders made by the President, Rules, Bye‑Laws, Regulations, Notifications and other legal instruments inforce in Pakistan or any part thereof or having extra‑territorial validity shall so far as may be and with such adaptation as the President may see fit may continue in force until altered, amended or repealed by competent authority." The reference in the Order to the provision of the Constitution of 1973 was only an easy and expeditious way of devising a new Legal Order. Since the Courts including this Court were revived by the Laws (Continuance in Force) Order and continued to work under its authority, they therefore derived their jurisdiction also from the said Order. For example, if after the issuance of the Proclamation the Chief Martial Law Administrator bad not issued the Laws (Continuance in Force) Order and had started ruling by decrees through his officers then where would have been this Court and what jurisdiction it would have had. Otherwise too allegiance is always due to the de facto Government for it is this Government which can provide protection to the citizens and allegiance to the State imposes as one of its most important duty obedience to the laws of the sovereign power for the time being within the State. The municipal Courts have always to enforce the laws of the de facto Government as it is such a Government which can enact law, can appoint Judges and can enforce the execution of law. In this connection the following passages from the Rhodesian case which was quoted at the Bar and which are based on the views of the various authorities are worth perusal :‑ "A municipal Court recognizes the legality of the only law‑making and law‑enforcing Government functioning "for the time being" within the State. It cannot do more and, in particular, it is not possible for a municipal Court to ascribe to Governments under which it functions. different degrees of legality. From the point of view of a municipal Court a Government either is or is not lawful. 1 am satisfied that the present Government is the only existing law‑making and law‑enforcing Government within the State of Rhodesia and if I am to carry on my functions as a Judge I must enforce laws passed in accordance with the 1965 Constitution. To do so is in accordance with, and not in breach of, my allegiance to the State of Rhodesia. It is important, in this .connection, to remember that in law it is the State and not a Government within a State which has the quality of "perpetual continuance". Allegiance is owed to the State as a legal entity with perpetual existence. Obedience to the laws of the Government "for the time being," and service under the Government "for the time being," are requirements of the allegiance owed to the State and it is only in a loose and inexact sense that it is possible to speak of allegiance being owed to a particular Government." (Page 160). "Judicial power presupposes an established Government capable of enact ing laws and enforcing their execution, and of appointing Judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of the Government from which .it is derived. And if the authority of that Government is annulled and overthrown; the power of its Courts and other officers is annulled with it. And if a State Court should enter upon the inquiry proposed in this case, and should come to the conclusion that the Government under which it acted had been put aside and displaced by an opposing Government it would cease to be a Court, and be incapable of pro nouncing a judicial decision upon the question it undertook to try. If it decides at all as a Court, it necessarily affirms the existence and authority of the Government under which it is exercising judicial power." (Page 156). "The English law on this aspect is summed up pithily by Hobbes in his statement (adopted by. Austin and cited above) that, "the legislator is he not by whose authority the law was first made but by whose authority it continues to be law". And this is the effect of the definition of "sovereign" in the Interpretation Act, 1889. There is no difference in law between a written constitution and an unwritten constitution and under English constitutional law respect is paid not to a constitution as such but to the Government which by its authority gives the constitution the force of law." (Page 155). "The lesson to be gleaned from the history of English law is that the Judges should. not allow themselves to become embroiled in political con troversy and, in particular, should not take part in revolutionary or counter, revolutionary activity. If a Judge believes that a situation has arisen which in all conscience compels him to exercise the "sacred right" of revolution or counter‑revolution he should leave the Bench and not seek to use his position on it to further his revolutionary or counter‑revolutionary designs. The more unsettled the times and the greater the tendency towards the disin tegration of established institutions, the more important it is that the Court should proceed with the vital, albeit unspectacular, task of maintaining law and order and by so doing act as a stabilizing force within the community. This objective can only be achieved if the acts of a Government "for the time being" within the State are given the force of law. Under English law Judges, in common with all other citizens, owe allegiance to the State and this allegi ance involves obedience to and service under the Government `for the time being" within the State." (Page 154). "The early history of England and the English law relating to the allegiance due to a de facto sovereign explain in large measure the view strongly adhered to by all English Judges that the judiciary should not meddle in politics." (Page 151). "This allegiance to Rhodesia imposes a duty of obedience to the laws which continue in force under the authority of the de facto Government, as well as in laws passed by it; provided, of course, these are passed in accord ance with the de facto constitution." (Page 149). "It is not essential, however, to resolve the dispute between Hale and Black -stone on the one hand, and Hawkins and Foster on the other for the purpose of deciding the fundamental constitutional issue in this case which is whether the laws of a Government `for the time being", that is, of a de facto Government, must be obeyed. On this aspect there is no disagreement at all between English jurists." (Page 144). "A sharp distinction is drawn in law between persons who set up a de facto Government by revolution and persons who, taking no part in the revolution, obey the laws of the de facto Government in pursuance of the duty of allegiance owed to the State. If obedience to the laws of a de facto Government were not enjoined by the law, anarchy would be likely to ensue. In a choice between anarchy and order the law wisely makes a realistic and sensible choice of order." (Page 129). . "There are a number of reasons for the unanimous acceptance by English jurists of a duty to obey the laws of a sovereign power established within the State by revolution: (i) First and foremost among these is the fundamental concept that allegiance is due in return for actual . protection. The corollary of this is that allegiance is not due to a sovereign power which, while claiming the theoretical right to protect, fails to afford protection. (ii) Secondly, and most importantly, there is the need in the interests of the State and its people to ensure the continuity of the law and avoid the anarchy which would result from a legal vacuum. (iii) A third reason, refreshingly free from cant and hypocrisy, is the appreciation by jurists that because Governments without exception have an extra‑legal origin, Courts exercising jurisdiction within a State must, if they are to function at all, obey the laws of the Government `for the time being". If a Court of law anywhere in the world were to insist that only the laws of a Government with a legal origin may be obeyed and enforced, it would not be able to function because there is no such Government. The feature which distinguishes one Govern ment from another is not that some have an extra‑legal and others a legal origin but simply the variation in the length of time separating all existing Governments from their extra‑legal origin. Although Govern ment "for the time being" within a State shares with all other Govern ments the taint of extra‑legal origin it has the obvious merit of being the only effective law‑making and law‑enforcing body within the State. To refuse to obey the laws of such a Government is to take not a legal but a revolutionary or a counter‑revolutionary stand." (Page 121). "A municipal Court is concerned not with the question of whether the State has been or should be accepted into the international community, but simply with the existence or non‑existence of a law‑making and law -enforcing Government within the territory in which it exercises jurisdiction.". (Page 110). "My approach to the position of the Judges and of the High Court and, indeed, to these cases as a whole, is a "positivist" approach; because I think that in the situation which exists in Rhodesia today what "is" or what "is not" the law can only be decided on the basis of accepting things as they actually "are" and not simply as they "ought to be". (Page 47). "It seems to me that at any one time in any one place there can only be one correct law. That law cannot vary with the political views of the individual Judge who "declares" it. This, of course, is, by no means the same thing as saying that the Judge, having declared the law as he finds it to be, or even before so declaring, must necessarily remain in office and apply that law. Here his personal views may play a part; because in certain circum stances the Judge may decide that rather than continue as a Judge and apply such law he will go. So long, however, as he continues to sit as a Judge he must declare the law as it "is", and not as it "was", or as what he thinks it "ought" to be." (Page 48). "If the entire Constitution under which a Court is created disappears or is completely suspended, the Court created under it must also disappear or be suspended alongwith the Constitution. A revolutionary Government cannot. be held to be a de facto Government (in the sense in which I have used the words) unless the old Constitution is at least entirely suspended. This I consider to be the case in Rhodesia today, because as a matter of political reality no writ of any Government purporting to govern under the 1.961 Constitution runs in Rhodesia. What, then, is the position of this Court at the present time? Strange as the conception might be, it cannot be said that the Court owes its present existence to or derives its present authority from the old 1961 Constitution. It owes its existence to and derives its authority today from the fact that the present de facto Government which is to full control of the Government of the country, knowing that the Court as such has not "joined the revolution", has nonetheless permitted it to continue and exercise its func tions as a Court, and has authorized its public officials to enforce the Court's judgments and orders. The orders of the High Court today are not enforced by any remnant of a Government governing under the 1961 Constitution. They are enforced by the officials of the present de facto Government." (Page 52). "In these circumstances it seems to me that the Court can only be regarded as deriving its authority from the fact that the present de facto Government allows it to function and allows its officials to enforce its orders." (Page 55). From the above with which I fully agree it is abundantly clear that this Court derives its jurisdiction from the Laws (Continuance in Force) Order and that it has to accept and enforce law of the de facto Government for the time being, Courts have always to see that conflict between the Court and the State is avoided even if the Government be a de facto one. If we hold that on the basis of legality the new legal order then this Court would be signing down death warrant for then there would be no Government at all. For argument sake if the Judges do not rely on the new norms then what norms are available for them to proceed with. In a revolu tionary situation like the present one they have either to quit or to accept the new norms. The mere fact that according to the new Legal Order the jurisdiction of this Court has been curtailed somewhat is no ground for questioning the validity of the order. Even under the Constitution of 1973 the jurisdiction of the superior Courts could be curtailed and had in fact been curtailed a number of times by a number of amendments in the Constitution. Could not an amendment be validly made in the Constitution of 1973 for deleting clause (3) of Article 184 altogether. Could then it be asserted that our judicial power which could not be taken away had been taken away. Judicial power is quite different from jurisdiction. The judicial power always rests in Courts and that has not been taken away by the new Legal Order. It has however now to be exercised within the framework of the new Legal Order. So far as the doctrine of necessity is concerned it is not an independent legal system. It is always an integral part of the framework of a total Legal Order. When there is no provision in the total Legal Order for dealing with a particular situations then the doctrine of necessity is resorted to. The situation in Pakistan on the; 4th of July 1977, was such that there was total breakdown of law and order and a situation had arisen for which the Constitution. of 197 3 had no provision to deal with. The Chief of the Army Staff, therefore, resorted to the doctrine of necessity and issued the Proclamation of the 5th of July suspending the Constitution and proclaiming himself as Chief Martial Law Administrator. Now when by the Proclamation the Constitution was suspended the doctrine of necessity automatically got suspended with it and was not thereafter available for controlling the Martial Law or the actions to be taken under it. On the issuance of the Laws (Continuance in Force) Order a new Legal Order came into being and the doctrine of necessity again automatically reappeared with it, but within the framework of the new Legal Order. In future if no provision can be found for dealing with z situation that might arise under the new Legal Order then the doctrine of necessity can again be resorted to. But so long as there was a provision in the new. Legal Order for dealing with a case or situation the doctrine of necessity could) not be resorted to. Any action of the .Martial Law authorities which is taken) in consequence of any Martial Law Regulation or Martial Law Order could not, therefore, be challenged or questioned on the doctrine of necessity. All the actions of the de facto Government can be tested only when the said Government comes to' an end and the old Legal Order is revived. In` that case the action of the Martial law authorities would be tested on the) basis of the old Legal Order. In this connection reference can be made to, Salmond on Jurisprudence, 11th Edition, page 25, relevant para. from which is reproduced below :‑ "The formal establishment of such, a system of military Government and justice in time of internal war or rebellion is commonly known as the proclamation of martial law. With the acts of the military authorities done in pursuance of such a system the civil Courts of law will not concern themselves in time of war." Reference may also be made to the authority reported in P L D 1953 Lah.

528. The following passage from this authority is worth perusal;-- "But so long as Martial Law lasts such orders cannot form justiciable issues before the civil Courts, not because the civil Courts have no jurisdiction but because their jurisdiction can at any time be ended by show or use of force by the military. Once, however, Martial Law is lifted, the threat to the existence of the Civil Courts disappears and they can then not only function in a normal way but also call in ques tion the acts of the military whose only defence an either be the right of private defence or the right disperse unlawful assembly or some indemnity legislation." This observation was made despite the fact that in the case in question no new Legal Order had at all been established. The above would therefore show that during the continuance of Martial Law the action of the Martial Law authorities could not be questioned in civil Courts. The argument that a decision holding the action of the Martial Law authority immune from judicial scrutiny by Courts would encourage revolu tions and coups d etat has no substance in it as revolutions and coups d'etat cannot be prevented by judgments. Despite the judgment of this Court in Asma Jillani's case .a coup d'etat did take place, for whatever reason, it is immaterial. We daily see the revolutions and coups d'etat do take place despite provisions regarding treason in Constitutions of the countries. The persons who, want to stage a revolution or coups d'etat do not have any regard for the judgments or the Constitutional provisions. They go forward despite these and rule if they succeed or are executed if they fail. Only recently we have noticed such instances in our neighbouring countries. The assertion that the Chief Martial Law Administrator had given statements and made pledges that he would do this and in such and such time does not detract from the existence of the Martial Law or the powers which are exercised under it. The Courts have nothing to do with these statements as such like statements and pledges are not enforceable under any law in any Court. Even in legal Governments the Prime Ministers who are 'generally the Chief Executives make wild promises either at the time of elections or even thereafter but no Court can come forward and direct them to fulfil their promise. This is a matter between them and the people. If they fulfil their promises people will be pleased with them but if they do not then it is for the people to resort to any action they might like to, but the Courts have nothing to do with that. The Courts cannot give any direction that the Chief Martial Law Administrator is to do such and such thing or not to do such and such thing and within such and such time simply because he had wade certain statements and promises. This is outside the scope of the jurisdiction of the Court. The upshot of the above discussion is :‑ (1) That the Laws (Continuance in Force) Order which is effectual for the time being is the new Legal Order for the time being. (2) That the new Legal Order has suppressed the old Legal Order (Constitution) for the time being. (3) That this Court derives its jurisdiction from the new Legal Order and that the orders of detentions in question cannot be challenged in this Court in view of the proviso to Article 2 and Article 4 of the Order. The petition is therefore dismissed. MUHAMMAD HALEEM, J. ‑I have had the advantage of reading ‑the judg ment proposed to be delivered by my Lord the Chief Justice and concur with it in full and have nothing further to add. G. SAFDAR SHAH, J.‑During the course of rather extended, albeit, able arguments addressed to us by Mr. Sharifuddin Pirzada, learned Attorney -General for Pakistan, Mr. A. K. Brohi, learned counsel for the Federation of Pakistan and Mr. Yahya Bakhtiar, learned counsel for the petitioners, I was tempted to write a separate judgment But after going through the judgment of my Lord the Chief Justice 1 abandoned the idea as I thought it would simply duplicate the process. The lucid and able exposition by my Lord the Chief Justice of the various complicated and difficult Constitutional issues in this case is indeed worthy of admiration, particularly when his Lordship was able to finalise his judgment within a very short time. Respectfully, therefore, concurring in the judgment of my Lord the Chief Justice, and being of the same opinion that in view of the suspension off Fundamental Rights by subsection (3) of section 2 of the Laws (Continuance' in Force) Order, 1977, this Court has no jurisdiction to grant to petitioners' any relief. This petition is therefore dismissed. DR. NASIM HASAN SHAH, J.‑I have had the advantage of perusing the judgment proposed to be delivered by my Lord the Chief Justice and am in respectful agreement with it. As I consider that some aspects of the questions which fall for decision may usefully be highlighted further, I venture to add a few words of my own.

2. The facts which form the background have been lucidly set out in the judgment of my Lord the Chief Justice and need not be repeated. As I appreciate the problems that arise in this case, they are, firstly, to ascertain the precise nature of the change that took place by the issuance of the Pro clamation of Martial Law on 5th July 1977, and the promulgation on the same day of the Laws (Continuance in Force) Order‑r 1977; secondly, to determine the legal effect of these steps and, thirdly, in case these acts are not lawful, whether they can be validated on any juristic principle.

3. The consideration of our political history shows that the Armed Forces have, during the past two decades, stepped in to govern the country on three different occasions. In October 1958, when the 1956 Constitution was in force, the President of the Republic, General Iskandar Mirza, in collaboration with the Army, took over the country, abrogated the Constitu tion and placed the country under Martial Law, appointing General Muhammad Ayub Khan to govern the country, through a legal instrument, called the Laws (Continuance in Force) Order, 1958. The latter, who shortly thereafter had also assumed the office of President, framed a Constitution for the country, which was promulgated on 7th June 1962. This Constitution remained in force till 25th March 1969, when President Ayub Khan, being unable to control the agitation mounted against his rule, invited the Commander‑in‑Chief of the Army to step to save the country from internal disorder and chaos. The Commander‑in‑Chief, General Muhammad Yahya Khan, willingly obliged again placed the country under Martial Law by the Proclamation issued by him on 26th March 1969, abrogated the Constitution of 1962 and dissolved the National and Provincial Assemblies. A few days thereafter, on 31st March 1969, he promulgated the Provisional Constitution Order, which, with some variations, followed the scheme of the Laws (Con tinuance in Force) Order, 1958. This was the second intervention.

4. The events that took place thereafter are recent history. General Elections, on the basis of One‑man One‑vote were held throughout the country in December 1970, in pursuance of the Legal Framework Order, promulgated earlier on 30th March 1970. These resulted in a land‑slide victory for Sh. Mujib‑ur‑Rehman's Awami League in East Pakistan and an impressive victory for Mr. Z. A. Bhutto's People's Party in West Pakistan. Owing to the secessionist movement started by the Awami League, the follies of General Muhammad Yahya Khan and the massive intervention of India, followed by armed aggression, East Pakistan was dismembered from the mother country on 16th December 1971. Thereafter the elected representatives belonging to Western Wing, alongwith two members from East Pakistan, met in Islamabad on April 14, 1972, as the National Assembly of Pakistan and proceeded to enact the Interim Constitution on April 21, 1972. Subsequently, this body framed the Permanent Constitution of Pakistan, which came into force on 14th August 1973. Some four years later country‑wide elections were held on 7th March 1977, under its provisions. However, as soon as the Election Results were announced, practically the whole country rose in protest against them, being convinced that they were manipulated and the outcome of massive rigging. The main demands made in the general agitation that followed were that the Prime Minister should resign and that fair and free elections be held afresh. The ruling People's Party and the Opposition Parties, represented by an alliance, called the Pakistan National Alliance, held lengthy Conferences to resolve this grave problem, but without success. This led to the third Military intervention, in the early hours of 5th July 1977.

5. The Chief of the Army Staff General Muhammad Zia‑ul‑Haq pro claimed Martial Law, the Constitution was ordered to remain in abeyance, the National Assembly, Senate and Provincial Assemblies were dissolved, the Prime Minister and other Ministers ceased to hold offices. However, the President of Pakistan was continued in the office. On the same day the Laws (Continuance in Force) Order, 1977 was promulgated providing for the governance of the country in accordance with the provisions of the 1973 Constitution as nearly as may be, notwithstanding its abeyance, subject to certain stipulations.

6. So far as the two earlier interventions of October 1958, and March 1969, are concerned, this Court has had the occasion to examine the question of their legal effect. The legal effect of the intervention of 1958 came up for consideration in the case State v. Dossa P L D 1958 S C (Pak.)

23. Muhammad Munir, C. J., who wrote the leading judgment, observed therein that "it sometimes happens however that a Constitution and the national Legal Order under it is disrupted by an abrupt political change not within the contemplation of the Constitution. Any such change is called a revolution and its legal effect is not only the destruction of the existing Constitution but also the validity of the national Legal Order." The learned Chief Justice went on to observe "the essential condition to determine whether a Constitution has been annulled is the efficacy of the change." In other words, if a revolution a legalised illegality. The revolution itself becomes a law creating fact because thereafter its own legality is judged not by reference to the annulled Constitution but by reference to its own success. For this view, reliance was placed on the writings of Hans Kelsen contained in his Book on the "General Theory of Law and State." Th., Court held that the 1958 revolution satisfied the test of efficacy and had thus become a basic law creating fact. It was accordingly. found that the Laws (Continuance in Force) Order, 1958, however transitory or imperfect it might be, was a new Legal Order and had destroyed the old Legal Order, with the result that the validity of the laws and correctness of judicial decisions were to be determined with reference to that Order and not the earlier Order.

7. However, when the validity of the second intervention of 1969 came up for examination, a totally different view was taken of its legal effect. This is evident from the judgment of this Court in the case entitled Asma Allani v. Government of Punjab P L D 1972 S C

139. Herein also the Proclamation of Martial Law by General Muhammad Yahya Khan and the abrogation of 1962 Constitution so as to introduce military rule, were considered and it was held that the assumption of power by General Muhammad Yahya Khan and installation of himself as the President and Chief Martial Law Administrator by the Proclamation of 1969 was entirely illegal. The ruling in Dossu's case that where a Constitution and the national Legal Order under it is disrupted by an abrupt political change not within the contemplation of the Constitution, such a change is called revolution and its legal effect is not only the destruction of the existing Constitution 'out also of the validity of the national Legal Order, irrespective of how and by whom such a change is brought about, was held not to be good law. General Yahya Khan was held to be a usurper and all the actions taken by him found to be illegal and illegitimate. In order to avoid the disastrous consequences of declaring all acts done during his rule, whether legislative or otherwise, to be of no legal effect, it was, however, held that those which were in the wider public interest could be condoned on the principle of condonation, notwithstanding their illegality.

8. This brings us to the consideration of the legal effect of the third and present intervention. The contention on behalf of the petitioner, of course, is that the acts of General Muhammad Zia‑ul‑Haq in placing the country under Martial Law, suspending the Constitution and ordering the governance of the country in accordance with the provisions of the Laws (Continuance in Force) Order, 1977, are, as held by this Court in Asma Jilani's case, illegal. Hence the Proclamation of Martial Law and the Laws (Con tinuance in Force) Order are liable to be declared as without lawful authority.

9. This contention is refuted by Mr. A. K. Brohi, appearing on behalf of the Federation of .Pakistan, who submits that the view of the consequences of the military take‑over by this Court in Anna Jillani's case was not correct. On the other hand, the conclusions arrived at by this Court in the earlier case of Dosso were correct, because even an extra‑legal act not within the contem plation of the Constitution which effectively destroys or supersedes the old national Legal Order is a law‑creating fact and the validity of the said action is to be judged not by reference to the old Legal Order, but by reference to the new Legal Order.

10. The question, therefore, is as to which of the two views is correct? However, to ascertain whether the rule to be applied in the present case should be the one laid down in Dosso's case or the one laid down in Asma Jillani's; it must first be examined if the nature of the military interventions that took place in October 1958 and March 1969 are similar in character to the intervention now in question.

11. The Proclamation of Martial Law issued by the President Iskandar Mirza in October 1958, shows that he decided that :‑ (a) The Constitution of the 23rd March 1956 will be arbrogated. (b) The Central and Provincial Governments will be dismissed with immediate effect. (c) The National Parliament and Provincial Assemblies will be dissolved. (d) All political parties will be abolished. (e) Until alternative arrangements are made, Pakistan will come under Martial Law. General Muhammad Ayub Khan, Commander‑in‑Chief of Pakistan Army was, accordingly, appointed as the Chief Martial Law Administrator and all the Armed Forces of Pakistan placed under his command. Explaining the reasons for these steps the President, inter alia, observed .‑ "The Constitution which was brought into being on 23rd March 1956, after so many tribulations, is unworkable. It is full of dangerous compromises, that Pakistan will soon disintegrate internally if the inherent malaise is not removed. To rectify them, the country must first be taken to sanity by a peaceful revolution. Then, it is my intention to collect a number of patriotic persons to examine our problems in ‑the political field and devise a Constitution more suitable to the genius of the Muslim people. When it is ready, and at the appropriate time, it will be submitted to the referendum of the people." The Proclamation read with the above declaration of intent shows . that the intention was to destroy the old national Legal Order. Accordingly the Constitution was abrogated and it was clarified that it was proposed to replace it by a new one. Although the Laws (Continuance in Force) Order, 1958 provided for the governance of the country as nearly as may be, in accordance with the Constitution of 1956, yet this was only for the inter regnum. The said Constitution described as the late Constitution in the Laws (Continuance in Force) Order and, of course, was subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law. Hence it could truly be said that the intervention of 1958 was intended to and did in effect supersede the old national Order, ,"substituting it by a new national Legal Order.

11. The position of the 1969 intervention was similar to the 1958 intervention. By the Proclamation of Martial Law of 25th March, 1969, the whole of Pakistan was placed under Martial Law and the Constitution of the Islamic Republic of Pakistan, 1962, was abrogated. In the broadcast made by General Yahya Khan, Commander‑in‑Chief of the Pakistan Army, on the following day, I.e. 26th March, 1969, it was unambiguously stated that the Constitution of 1962 was to be replaced by a new Constitution as is evident from the following extract from his speech; ". . . It is my firm belief that a sound, clean and honest administration is a prerequisite for sane arid constructive . political life and for the smooth transfer of power to the representatives of the people elected freely and impartially on the basis of adult franchise. It will be the task of these elected representatives to give the country a workable constitution. . . , . ." Thus in both the above‑noted instances the purpose of the intervention was not only to suppress the existing Constitutions, but to replace them by new Constitutions. The old Legal Order was to be replaced by a new legal Order.

12. The present situation, however, is radically different. Although by the Proclamation of 5th July, 1977 the whole of Pakistan has come under Martial Law, the Constitution has not been abrogated but merely kept in abeyance. The President of Pakistan elected under the 1973 Constitution is to continue in office. Furthermore, there is no intention to substitute the present Legal Order by a new Legal Order, for this Legal Order is to be revived after fresh' elections have been held. These too will be held under the provisions of the 1973 Constitution. The real character of the present intervention has been explained by the Chief Martial Law Administrator himself in his speech made on 5th July, 1977, the relevant portion whereof may usefully be reproduced below;-- ". . But the Constitution has not been abrogated. Only the operation of certain parts of the Constitution has been held in abeyance. Mr. Fazal Elahi Chaudhary has very kindly consented to continue to discharge his duties as President of Pakistan as heretofore under the same Constitution. I. am grateful to him for this. To assist him in the discharge of his national duties, a four‑member Military Council has been formed. The Council consists of the Chairman, Joint Chiefs of Staff, and Chiefs of Staff of the Army, Navy ;end Air Force. I will discharge the duties of the Chief of Army Staff and Chief Martial Law Administrator. Martial Law Orders and Instructions, as and when required, will be issued under my orders." The reasons necessitating the intervention were explained in the following words;

"The elections were held in our beloved homeland on March 7 last. The election results, however. were rejected by one of the contending parties, namely the Pakistan National Alliance. They alleged that the elections had been rigged on a large scale and demanded fresh elections. To press their demand for re‑elections, they launched a movement which assumed such dimensions ?`pat people even started saying that democracy was not workable :n Pakistan. But, I genuinely feel that the survival of this country lies in democracy alone. It is mainly due to this belief that the Armed Forces resisted the temptation to take over during the recent provocative circumstances in spite of diverse massive political pressures. The Armed Forces have always desired and tried for the political solution to political problems. That is why the Armed Forces stressed on the then Government that they should reach a compromise with their political rivals without any loss of time... It must; be quite clear to you now that when the political leaders failed to steer the country of a crisis, it is an inexcusable sin for the Armed Forces to sit as silent spectators. It is primarily, for this reason, that the Army, perforce had to intervene to save the country. I would like to point out that I saw no prospects of a compromise between the People's Party and the P. N. A., because of their mutual distrust and lack of faith. It was feared that the failure of the P. N. A. and P. P. P. to reach a compromise would throw the country into chaos and the country would thus be plunged into a more serious crisis. This risk could not be taken in view of the larger interests of the country. The Army had, therefore, to act as a result of which the Government of Mr. Bhutto has ceased to exist ; martial law has been imposed throughout the country ; the National and Provincial Assemblies have been dissolved and the Provincial Governors and Ministers have been removed." However, a categorical assurance that there was no intention to establish a new Legal Order, but merely to help the country to get back on the rails of constitutionalism was thereafter given, in the following words;-- " . I was obliged to step in to fill in the vacuum created by the Political leaders. I have accepted this challenge as a true soldier of Islam. My sole aim Is to organise free and fair elections which would be held in October this year. Soon after the polls, power will be transferred to, the elected representatives of the people . . . ." The intervention thus appears to be for a temporary period and for limited purpose of arranging fair and free elections so as to enable the country to return to the democratic way of life. Thus on the present occasion the Proclamation of Martial Law does not appear to be of the same type as the Proclamations of Martial Laws of 1958 and 1969, whereby not only the existing Constitutions were abrogated but that this was done with the intention of replacing them with new Constitutions. The purpose there was to destroy the existing Legal Orders and replace them with new Legal Orders. In the present case the situation is quite different. In view of the. break‑down of the normal constitutional machinery and to fill the vacuum, the Armed Forces were obliged to take an extra‑constitutional step. Martial Law was imposed, in the picturesque words used in the written statement filed by Mr. Brohi, not "in order to disable the constitutional authority, but in order to provide a bridge to enable the country to return to the path of constitutional rule." In the felicitous phrase of my Lord the Chief Justice, the act was more in the nature of a "constitutional deviation" rather than an overthrow of the Constitution. The Constitution of 1973 is not buried but merely suspended. It, however, continues to be the governing instrument subject to the provisions of the Laws (Continuance in Force) Order, 1977. In these circumstances neither the ratio decidendi of Dosso v. State nor that of Asma Jillani v. The Punjab Government is strictly applicable to the present case.

13. The question next arises whether the above intervention was a step which could lawfully be taken. So far as this point is concerned, it is an admitted position that there is no provision in the Constitution authorising the Army Commander, even in the event of the break‑down of the constitu tional machinery to intervene in the manner that he did. But Mr. Sharif‑ud- Din Pirzada, Attorney‑General of Pakistan, submitted before us that since the country cannot be allowed to perish for the sake of the Constitution, the intervention was justified on the doctrine of State necessity, while Mr. Brohi contended that as the old Legal Order had been effectively replaced by a new Legal Order, henceforth all questions of legality were answerable with reference to it, in other words all such questions were to be determined not on the basis of the previous Legal Order but with reference to the Laws (Continuance in Force) Order, 1977.

14. The doctrine of "necessity", namely rendering lawful that which otherwise is unlawful, is well‑established in jurisprudence (ID QUOD ‑ALIAS NON EST LICITUM, NECESSITAS LICITLJM FACIT"‑that which otherwise is not lawful necessity makes lawful). In constitutional law the N application of Martial Law is but an extended application of this concept N of State necessity. The doctrine of necessity was applied by the Federal Court of Pakistan only recently as a legal justification for ostensibly uncons titutional actions to fill a vacuum arising out of a Court order. See Reference by H. E. The Governor‑General to the Federal Court P L D 1955 F C

435. It will be recalled that the reference was necessitated, inter alia, to overcome, the difficulty caused by the circumstance that forty; four, Acts passed by the Constituent Assembly of Pakistan had not received the assent of the Governor‑General, ac required by law. The Constituent Assembly had been dissolved by the Governor‑General in October, 1954, and had not been reconstituted. By a Proclamation made on 16th April 1955, the Governor‑General declared certain essential laws to be enforceable until their validity was decided upon by the new Constituent Assembly. It was held that he bad acted in order to avert an impending disaster and to prevent the State. and society from dissolution and that on the ground of necessity his Proclamation should be treated as having been given the force of law to the measures specified. The principal authority relied upon was the address to the Jury by Lord Mansfield in the case of R. V. Stratton and others (1779) 21 St. Tr. 1222. The Governor of Madras acted illegally and unconstitutionally in refusing to count the votes of some of the members of his Council. The Councillors accordingly imprisoned him for eight months and carried on the Government themselves. Upon being indicted in England they set up the defence of necessity. Lord Mansfield directed the jury that the defence was one of `civil' or `State necessity'. He remarked;-- "In India you may suppose a possible case, but in that case, it must be imminent, extreme necessity ; there must be no other remedy to apply to for redress ; and in the whole they do, they must appear clearly to do it with a view of preserving the society and themselves. What immense mischief would have arisen to have waited for the interposition of the Council at Bengal." The principle clearly emerging from this address is that subject to the condition of absoluteness, extremeness and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity, the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution, and affirms Chitty's statement that necessity knows no law and the maxim cited by Bracton that necessity makes lawful which otherwise is not lawful.

15. Situations are conceivable where the normal law of the land may have to give way before necessity, particularly in a situation where the welfare of the State and its subjects are at stake, and in proper G case it would be the Court's duty to recognize such a situation and to act 0 upon the principle "salus populi suprema lex" despite the express provisions of the Constitution. An instance .of this is furnished by the case . The Attorney‑General of the Republic v. Mustafa Ibrahim and others (1964) 3 Cyprus L R

195. To appreciate the background of this decision, it may be mentioned that by December 1963 the structure of the Constitution of Cyprus had broken down. The island divided up into armed camps. The Vice‑President and the Turkish Cypriot members of the Council of Ministers ceased participating in the machinery of government; the Turkish Cypriot representatives no longer sat in the House of the Representatives; but the Constitution required the concurrence of Greek and Turkish Cypriots for many important purposes. The administration of justice was thrown into chaos. For some months Turkish Judges did not attend their Courts. The mixed Courts which had to be convened to dispose of cases where the parties belonged to different communities could not be constituted. The Supreme Constitutional Court had not met since August 1963, when its neutral ,President had resigned; and by July 1964 over 400 cases were awaiting trial by the Court. In June 1964 the neutral President of the High Court resigned.

16. In July 1964 the House of Representatives, sitting without its Turkish Cypriot members, passed a law to establish a Supreme Court which was to exercise the functions previously vested in the Supreme Constitutional Court and the High Court. This law was inconsistent with a number of important articles of the 1960 Constitution; it had not been passed in the manner prescribed by the Constitution; indeed, it included provisions which conflicted with certain articles declared by the Constitution to be unalterable.

17. In August 1964 four persons charged with serious offences and committed for trial at assizes were granted bail by a District Judge. The Attorney‑General appealed to the Supreme Court against this order for bail; three Judges nominated by the Court in accordance with the ? 96.1 law heard the appeal. For the respondent it was argued that the 1964 law was a nullity as it was unconstitutional, so that the Court had no valid existence. The Court unanimously rejected this plea and held that it was validly constituted and had jurisdiction to entertain the appeal. The Constitution of 1960, it was observed, had not ceased to have legal force, but it had to be read subject to the doctrine of necessity. Measures not sanctioned by the letter of the Constitution could properly be taken if they were necessary to avert a grave public evil and were proportionate to the evil to be averted. In Cyprus the presuppositions of inter‑communal co‑operation, on which the Constitution had been based, had foundered, and the Constitution had become unworkable. The steps taken to rectify the situation were reasonably required in the circumstances. In support of this conclusion some pertinent observations were made by the three Judges con stituting the Bench. Vassiliades, J., observed;-- "This Court now, in its all important and responsible function of transforming legal theory into living law, applied to the facts of daily life for the preservation of social order, is faced with the question whether the legal doctrine of necessity . . . . should or should not, be read into the provisions of the written Constitution of the Republic of Cyprus. Our unanimous view is in the affirmative. The enactment of the Administration of Justice (Miscellaneous Provisions) Law, 1964, which would otherwise appear to be inconsistent with Articles 133.1 and 153.1 of the Constitution, can be justified, if it can be shown that it was enacted only to avoid consequences which could not otherwise be avoided and which; if they had followed, would have inflicted upon the people of Cyprus, when the Executive and Legislative Organs of the Republic are bound to protect, inevitable irreparable evil; and furthermore if it can be shown that no more was done than was reasonably necessary for the purpose, and that the evil inflicted by the enactment in question was not disproportionate to the evil avoided‑Law was justified notwithstanding the provisions of Articles 133.1 and 153.1 of the Constitution." Triantafyllides, J., after reproducing the facts of .the Constitutional impasse observed:‑ "Organs of Government set up under a Constitution are vested expressly with the competence granted to them by such constitution, but they have always an implied duty to govern too., It would be absurd to accept that if, for one reason ‑or other, an emergency arises, which cannot be met within the express letter of the constitu tion, then such organs need not take the necessary measures in the matter, and that they would be entitled to abdicate their responsibilities and watch helplessly the disintegration of the country or an essential function of the State, such as the administration of justice. Notwithstanding a constitutional deadlock, the State continues to exist and together with it continues to exist the need for proper government. The Government and the Legislature are empowered and bound to see that legislative measures are taken in ensuring proper administration where what has‑ been provided for under the Constitution, for the purpose, has ceased to function" He went on to observe :‑ .Having considered the jurisprudence and authoritative writings of other countries to which this Court has been referred, as well as some others, I am of the opinion that the doctrine of necessity in public law is in reality, the acceptance of necessity as a source of authority for acting m a manner not regulated by law but required, in prevailing circumstances, by supreme public interest, for the salvation of the State and its people. In such cases `salus populi' becomes `supremo lex'. " Another pertinent observation may also be reproduced: "Even though the Constitution is deemed to be a supreme law limiting the sovereignty of the Legislature, nevertheless, where the Constitution itself cannot, measure up to a situation which has arisen, especially where such situation is contrary to its fundamental theme, or where an organ set up under the Constitution cannot function and where, furthermore, in view of the nature of the Constitution it is not possible for the sovereign will of the people to manifest itself, through an amendment of the Constitution, in redressing the position, then, in my opinion according to the doctrine of necessity the legislative power, under Article 61 remains unhindered by Article 179, and not only it can, but it must, be exercised for the benefit of the people." He then went on to make the observation relied upon by Mr. Sharifuddin Pirzada that a State and people should not be allowed to perish for the sake of Constitution. On the contrary, the Constitution should exist for the preservation of the State and welfare of the people. However, he qualified his observations by laying down that where the doctrine of necessity has been invoked it is for the judiciary to determine if the necessity in question actually exists and also if the measures taken were warranted thereby. Josephides, J., also held that he interpreted the Constitution to include the doctrine of necessity in exceptional circumstances, as an implied exception to particular provisions of the Constitution in order to ensure the very existence of the State. Commenting on the situation that had arisen he remarked. "Faced with the non‑functioning of the two superior Courts of the land and the partial break‑down of the District Court, the Government had to choose between the alternatives, viz. either to comply with the strict letter of the Constitution (the relevant articles being unalterable under any Condition), that is, cross its arms and do nothing but witness the complete paralysis of the judicial power, which is one of the three pillars of the State; or to deviate from the letter of the constitution, which had been rendered inoperative by the force of events (which situation could not be foreseen by the framers of the Constitution) . . . . ." However, he laid down the following pre‑requisites to be satisfied before this doctrine could become applicable :‑ (a) an imperative and inevitable necessity or exceptional circumstances; (b) no other remedy to apply; (c) the measure taken must be proportionate to the necessity; and (d) it must be of a temporary character limited to the duration of the exceptional circumstances.

18. The doctrine of necessity was also invoked by two Judges of the Divisional Bench of the High Court of Southern Rhodesia (Lewis and Goldin, JJ.) in the famous ease Madzimbamuto v. V. Lardner‑Burke (1967) 83 L Q R

64. The Divisional Bench held that although the existing Government of Mr. Smith and his colleagues was not the lawful Government of the Southern Rhodesia (having unilaterally declared independence ‑UDI‑ and broken away from the British Crown and framed its own Constitution in 1965, in super session of the Constitution enacted by the British Parliament in 1961) the Government could nevertheless continue to retain without trial two persons in terms of a Southern Rhodesia's statute which conferred the power to detain persons without trial only upon the lawful Government of Southern Rhodesia. This finding was grounded on the following hypothesis: "The Government is, however, the only effective Government of the country, and therefore on the basis of necessity and in order to avoid chaos and a vacuum in the law, this Court should give effect to such measures of the effective Government, both legislative and administrative, as could lawfully have been taken by the lawful Government under the 1961 Constitution for the preservation of peace and good Government and the' maintenance of law and order."

19. The appeal from this judgment was heard by a Bench of five Judges of the Appellate Division of the Rhodesian High Court (1968) 2 S A, of whom only one, Fieldsend A. J. A. agreed with the first Court with respect to the doctrine of necessity. According to him "in considering each individual case that comes before it the Court must not lose sight of the political situation and the political realities. The question is whether these political realities create such a situation that, judged by the yardstick of 1961 Constitution the Court should decide that situation sanctions for the accord of validity to some acts of measures done or enacted otherwise than by the machinery of that Constitution." He went on to add: "Lewis, J., in the Court fully relied on the maxim "salus populi suprema lex", which is in effect the doctrine of State necessity to justify a departure from the express terms of the 1961. Constitution. In his alternative argument in this Court Mr. Rathouse said that he preferred not to put his case squarely upon this basis, but to rely rather upon what he termed "natural necessity" to determine whether or not there is any room for the introduction of a doctrine of necessity to mitigate the strict application of the Constitution it is necessary first to ascertain the principles underlying the commonly accepted meaning of the doctrine. This can best be done by reference to certain of the cases from which these emerge." He then referred to several cases, of which the following two are of particular interest and are accordingly being reproduced hereunder. In R. v. Bekker & Naude (1900) 17 SC 340, Solomon, J., said at page 355 :‑ "Martial Law is nothing more nor less than the law of self‑defence or the law of necessity. It is put in force in times of public danger, when the maxim salus reipublicae extrema lex applies, and when in consequence it becomes necessary for the military authorities to assume control and to take the law into their own hands for the very purpose of preserving that Constitution which is the foundation of all the rights and liberties of its subjects. When such a state of things arises in any district, the ordinary rights and liberties of the inhabitants are subordinated to the paramount interest of the safety of the State . . . . Both the justification for proclaiming martial law and the actual exercise of authority there under are strictly limited by the necessities of the situation ;" and in White & Tucker v. Rudolph 1879 Kotze 15, Kotze, J. said at page 124: "It must be admitted that the law distinctly recognizes the maxim necessitas non habet legem, quod cogit defendit. The meaning of this is not, as some writers lay down, that necessity overrides all law, and is superior to it; but that the law justifies in certain cases, as where the safety of the State is in imminent danger, a departure from the ordinary principles protecting the subject in his right of private property. This right of private property is sacred and inviolable: any interference with it is, prima facie, wrongful and unlawful, and it is incumbent upon the respondent in the present instance to justify what he has done by showing that it was dictated by necessity that will justify a departure from the ordinary principles of law. It must be necessity extreme and imminent." "From a consideration of all these sources and their similarities to and differences from the cases now under consideration, it seems that the only proper conclusion is that natural justice, in the form of a controlled common sense, dictates that, for the welfare of the mass of people innocently caught up in these events, validly must be accorded to some acts of the usurping authorities, provided that no consideration of public policy to the contrary has to prevail. It is unnecessary, and indeed undesirable, to attempt to define precisely, the limits within which this validity will be accorded. The basis being broadly necessity, the decision is one which must be arrived at in the light of the circumstances of each case." The above view was favourably commented upon in the dissenting judgment of Lord Pearce in the Privy Council, although the majority rejected the principle of necessity as applied by the Rhodesian Judges (Madzimbamuto v. Lardner‑Burke (1968) 3 All E R

561. Lord Pearce stressed that the British Parliament and Government had really made no effort whatever to govern Rhodesia after UDI and the argument that it was only Parliament and Parliament alone to determine whether maintenance of law and order would justify giving effect to laws made by the usurping Government to such extent as may be necessary for that purpose was altogether elusive and unreal if read as a response to the question whether and under what circumstances the necessity of avoiding chaos can be regarded (as it was conceded by the appellants that it can be regarded) as a source of law. "The necessity relied on in the present case is the need to fill the vacuum which would result from a refusal to give the validity to the acts and legislation of the present authorities in continuing to provide for tile every day requirements of the inhabitants of Rhodesia over a period of two years. If such acts ware to be without validity there would be no effective means of providing money for the hospitals, the police, or the Courts, of making essential by‑laws for new town ships or of safeguarding the country and its people in any emergency which might occur, to mention but a few of the numerous matters which require regular attention in the complex modern state. Without constant attention to such matters the whole machinery of the administration would break down to be replaced by chaos, and the welfare of the inhabitants of all races would be grievously affected." Lord Pearce went on to observe; "The lawful Government has not attempted or purported to make any provision for such matters or for any lawful needs of the country, because it cannot. It has of necessity left all those things to the illegal . Government and its Ministers to provide. It has appointed no lawful Ministers. If one disregards all illegal provisions for the needs of the country, there is a vacuum and chaos. In my view the principle of necessity or implied mandate applies to the present circumstances in Rhodesia. I cannot accept the argument that there was no necessity since the illegal regime can always solve the problem by capaitulating. So too a foreign army of invasion can always return home. The principle of necessity or implied mandate is for the preservation of the citizen, for keeping law and order, rebus sic stantibus, regardless of whose fault it is that the crisis has been creat ed or persists. Subject therefore to the facts fulfilling the three neces sary questions, the principle of necessity or implied mandate applies in this case. This according to Lord Mansfield with whom I agree, is a question of fact. Does the ordinary orderly running of the country reasonably require it? Fieldsend, J., held that it did. The other Judges accepted different principles, and therefore their overall' conclusion is not of much assistance on this point. But Fieldsend, J., approached the case from what in my view is the right angle, and I would therefore accept his finding . . . . ."

20. Another instance wherein the principle of necessity was found to be applicable is furnished by the decision of the Supreme Court of Nigeria in the case Lakamni & Oala v. Attonery‑General (West) decided on 24th April, 1970. After the rebellion in different parts of Nigeria, in January 1966, the Acting President handed over the country to the Armed Forces. The General Officer commanding the Nigerian Army accepted the invitation to form an interim Military Government. He suspended some parts of the Constitution and started to administer the country. The State Government of Western Nigeria started to investigate the activities of public officers including E. O. Lakanmi and some members of his family. The Chairman of the Tribunal of Inquiry into the assets of such public officers made an order under Edict No. 5 of 1967 restraining the appellants (Lakanmi etc.) from disposing of their real property until the Military Government of the State directed.

21. The appellants sought certiorari to quash the order on the grounds that Edict No‑ 5 was void, since it purported to operate in the same field as the Federal Military Government's Decree No. 51 of 1966 which had earlier "covered the filed", and that .certain of its provisions were inconsistent with the Decree. The High Court of Ibadan rejected these arguments and the appellants appealed; while the appeal was pending, the federal Military Government passed three further Decrees in the same field, Nos. 37, 43 and 45 of 1968. The respondents took a preliminary objection that the High Court of Appeal had no jurisdiction, since the order complained of had been validated by Decree No. 45 of 1968. The Court of Appeal agreed. On a further appeal to the Supreme Court, the question arose of the validity of Decree No. 45.

22. The appellants argued that the Federal Military Government was not a revolutionary Government but a constitutional interim Government whose object was to uphold the 1963 Constitution except where the necessity to depart from it arose. The separation of powers was accordingly preserved after 1966 and the Government's power to make laws by Decrees was not therefore unfettered. Decree No. 45 could therefore be regarded as a legislative act which constituted an executive interference in the sphere of the judiciary, and was to that extent invalid.

23. The respondents argued that the Federal Military Government was a revolutionary Government which had unfettered power to rule by Decree. Nothing in the Constitution could make a Decree void, and validation laws should be regarded as a normal exercise of legislative functions.

24. The Supreme Court held that Edict No. 5 was ultra vires as Decree No. 51 covered the field. As to the validity of Decree No. 45, they accepted the appellants' argument and decided that the Federal Military Government was indeed a constitutional rather than a revolutionary Government, and that the 1963 Constitution remained law, except as derogated from under the doctrine of necessity. They refused to accept the view that the Federal Military Government derived its authority from the 1966 revolution and not from the 1963 Constitution. Separation of powers remained a part of the Constitution which had not been superseded under the doctrine of necessity; and as Decree No. 45 was not itself justified by the doctrine, it was invalid.

25. In taking the above decision the Supreme Court of Nigeria made several interesting observations and some of these may be reproduced there under with advantage :‑ "It is to be noted from the Government Notice (No. 148) set out above that the invitation to the Armed Forces, which was duly accepted, was to form an interim Military Government. and it was made clear that only certain sections of the Constitution would be suspended. It was evident that the Government thus formed is an interim Government which would uphold the Constitution of Nigeria and would only suspend certain sections as the necessity arises." Thereafter the Court discussed the case of Uganda v. Commissioner of Prisons (1966) E A L 8,514, which followed the decision of this Court in State v. Dosso P L D 1958 S C (Pak.)

53. But the Court, however, reiterated its view that the Federal Military Government was not revolutionary Government and went on to observe;-- ". . . It made it clear before assuming power that the Constitution of the country still remains in force, excepting certain sections which are suspended. We have tried to show that the country is governed by the Constitution and Decrees which, from time to time, are enacted when the necessity arises and are then supreme when they are in conflict with the Constitution. It is clear that the Federal Military Government decided to govern the country by means of the Constitution and Decrees. The necessity must arise before a decree is passed ousting any portion of the Constitution. In effect, the Constitution still remains the law of the country and all laws are subject to the Constitution excepting so far as by necessity the Constitution is amended by a Decree. This does not mean that the Constitution of the country cease, to have effect as a superior norm. From the facts of the taking‑over, as we have pointed out, the Federal Military Government is an interim Government of necessity concerned in the political cauldron of its inception as a means of dealing effectively with the situation which has arisen and its main object is to protect lives and property and to maintain law and order . . . ." It was also observed that "by recognizing the fact that there is a doctrine of necessity, we do not alter the law but apply it to facts as they do exist."

26. The doctrine of necessity is also recognised in Islamic Law. Event in the Holy Qur'an the application of this doctrine is made permissible Verse, 173 of Chapter II (Sura‑al‑Baqr) as translated by Marmaduke Pickthal refers to it thus; "

173. He hath forbidden you only carrion, and blood, and swine flesh, and that which hath been immolated to (the name of) any other than Allah. But he who is driven by necessity, neither craving nor transgressing, it is no sin for him. Lo ! Allah is Forgiving, Merciful."

27. However, before this doctrine can be invoked the following conditions must pre‑exist : (a) that which is forbidden by Allah can be taken only where one is driven to it by necessity ; (b) that there is neither craving nor the inten tion to transgress the limits set by him ; (c) that oily that bare minimum is s taken as is necessary to save life. Thus the principle of necessity as also the conditions in which it can be resorted to are clearly set forth in Islam.

28. This somewhat lengthy review of the case‑law of this country, the judgments of the superior Courts of Cyprus, Rhodesia, Nigeria and even the Privy Council show that necessity can be accepted as a justification for an extra legal act, in certain conditions. This position is also recognised in Islam. In the precedent cases, cited above it has also been observed that "Martial Law is nothing more nor less than the law of self‑defence or the law of necessity (In R. v. Bekkar & Naude)", and that in constitutional law the application of Martial Law is but an extended application of the concept of State necessity (See Reference by H. E. The Governor‑General to the Federal Court of Pakistan). Thus, in certain exceptional circumstances it is possible, as a measure of State necessity, to impose even Martial Law.

29. The question whether the conditions obtaining in Pakistan necessitated the above step has to be answered by reference to the happenings from 7th of March, 1977, up to 5th July, 1977, which reveal that the constitutional and moral authority of the National Assembly which had come into being as a result of the elections held on 7th March, 1977, as well as the Federal and Provincial Governments formed thereafter had been continuously and forcefully repudiated throughout the country over a prolonged of nearly four months, with the result that the national life stood d. A situation had arisen for which the Constitution provided no solution. The atmosphere was surcharged with the possibility of furthers violence, confusion and chaos. As the Constitution itself could not measure u to the situation the doctrine of State Necessity became applicable, for where the safety of the State and the welfare of the people are. in imminent danger necessity justifies a departure from the ordinary principles of law. In there circumstances the step taken by the Armed Forces of imposing Martial Law stands validated, on the principle of State Necessity, as urged by the learned Attorney‑General. But by the same token this deviation must be of a temporary character, limited to the duration of the exceptional circumstances. Moreover the actions taken during this period will, for the reasons set forth so admirably by my Lord the Chief Justice, be open to judicial review.

30. I may now briefly comment upon the stand taken up by Mr. Brohi on this point. According to him the legal effect of the intervention was to be adjudged with reference to the new Legal Order, namely, the Laws (Continuance in Force) Order, 1977, and not the old Legal Order, namely, the Constitution of 1973, because, the aforesaid Order had been effectively replaced by the new Legal Order, the efficacy of the change being the basis of its validity. In this connection Mr. Brohi relied upon the doctrine of Kelsen enunciated in his works on the Pure Theory of Law and the General Theory of Law and State. The views of Kelsen advocated by him in these works were explained to us by Mr. Brohi in some detail. However, in the facts and circumstances of our situation the doctrines propounded by Kelsen do not appear to be strictly applicable as the change‑over which occurred on the 5th July 1977 cannot qualify as a "revolution" in Kelsenian terms. Although the Armed Forces are undoubtedly in effective control of the administration, it is neither their intention nor indeed have they established a new Legal Order in supersession of the existing Legal Order. The Constitution of 1973 remains the supreme law of the land, subject to the condition that certain parts thereof have bee held in abeyance. The President of Pakistan and the superior judiciary continue to function under the Constitution, subject to any limitations placed on their jurisdiction. The change is only in the nature of a constitutional deviation rather than the destruction of one Legal Order and its replacement by another. Even otherwise, the doctrines of Kelsen cannot be accepted in their entirety by Courts of Law. Whereas for Kelsen the efficacy of a revolution creates a new reality of which the pure science of law must take account for the Courts involved in practical decisions the efficacy of a revolution creates a new legal situation which they must take note of and proceed to decide the matter as raised before them by the contesting parties. In doing so they will have to take into account not only the efficacy of the change, but other values, such as the desirability of maintenance of peace, order, justice or good Government, to fill the vacuum in law and to avoid chaos, presump tion in favour of the old regime because of its original legal status or against it because of its record of unconstitutional actions and conduct. In short, the responsibility of the Judge is not to the "objective reality" that exists for the academic observer but to the peace, order, justice, morality and good government. In fact, for Judges involved in practical decisions acceptance of the changed Legal Order is not so much on account of its efficacy as such but rather on necessity in the sense of "ID QUOD ALIAS NON EST. LICITUM, NECESSITAS LICITUM FACIT" (that which otherwise is not lawful necessity makes lawful).

31. As for the other points arising in the case and dealt with by my Lord the Chief Justice in his judgment, I am in complete agreement therewith and have nothing to add. According to the unanimous view of the Court, this petition is dismissed as not being maintainable. S. A. H. Petition dismissed.