Martial Law

Martial Law had seriously disruptive and distorting effect on constitutional law and principles, and it disturbed the distribution of legislative power between the Federal and Provincial legislatures

Example (of a statute or law) from a time when the Constitution was in abeyance and the country under Martial Law was not a good example for how the federal nature and structure of the Constitution was to work in normal circumstances.

Suit for declaration and permanent injunction on the ground that the plot leased out to plaintiff was not the amenity plot and allotment could not be cancelled

Defendants contested suit on the ground that leased plot was an amenity plot reserved for park and was continuously used by the residents for assembling there in the evening, to enjoy outdoor activities

Trial Court, decreed the suit of the plaintiff

Appellate court on appeal, allowed the same and set aside the judgment and decree of the Trial Court

Validity

Trial Court had discussed the evidence and had come to the conclusion that the leased plot was not an amenity plot but was adjacent to the amenity plot

Neither Martial Laws Order [Zone C], No.34 nor No.89 were applicable to the leased plot

Revision petition was allowed by High Court.

Concept of Martial Law as accepted in Britain and difference in its jurisprudential norms in Pakistan and Britain stated.

When Martial Law is in force in a territory, the Army Commander is the Supreme Authority and legislative, judicial and executive powers of the State vest in him

All other powers wielding Authorities of the State are eclipsed and become subordinate to him or their jurisdiction is ousted.

Historical background of proclamation of emergency, proclamation of Martial Law and assumption of office of Chief Martial Law Administrator and resultant legislations discussed at length.

Various senses. In one sense Martial Law means the law relating to the internal discipline of the Armed Forces of the State. In another sense the word `Martial Law' means the military Government in an occupied territory in times of war. Thirdly, under the French Constitution there is a provision for the declaration of "State" under which the authority vested in the civil power for the maintenance of law and order passes entirely to the Army. Such a "State of Seige" can be declared by the French Government if there is a tumult or insurrections of considerable magnitude in any part of the country and in that event the affected areas are temporarily placed under the control of the Army

Martial Law Authorities being members of Armed Forces and Martial Law having been imposed by Armed Forces-Slogans against or criticism of Martial Law, held, prima facie appear to be against Armed Forces.

Read with Laws (Continuance in Force) Order [C. M. L. A.'s No. 1] Arts. 2 & 5 and Constitution of Pakistan (1973)-Military Courts-Establishment of

No conflict between Art. 2(2) of Order No. 1 and M. L. O. 4-Chief Martial Law Administrator, under his legislative powers, fully competent to establish Military Courts-No subjective test to be applied for judging whether action of C. M. L. A. fell within scope of law of necessity

High Court cannot sit in appeal from action of C. M. L. A.-[Jurisdiction].

Summary Military Court-Jurisdiction-Summary Military Courts exercise exceptional jurisdiction rooted in State necessity-Jurisdiction of such Courts-Limited-Jurisdiction when assumed by Summary Military Courts, same, held, must be within four corners of law framed by Martial Law authorities-Actions of Summary Military Courts not defendable on ground of substantial justice if such Courts have any misconception about law, or are mistaken about it, or over reach it, or apply it in utter disregard of facts and circumstances of case.-[Jurisdiction]

Proceedings under Martial Law-Contention that since Martial Law had been lifted, cases under Martial Law should also be deemed to have been withdrawn-Held, had no force-Once provisions of Martial Law Regulation contravened trial would be held even if Martial Law is withdrawn.

Meaning and scope of Martial Law in legal jurisprudence-Jurisprudence recognizes and contemplates Martial Law in derogation of civil law but not by abrogation of Constitution itself-Proclamation of Martial Law dated 25-369-Not a Proclamation simpliceter for imposing Martial Law as contemplated in legal jurisprudence-Constitution of 1962 annulled irrevocably and its provisions after abrogation could not retain in the least validity of their own force.

Neither arbitrary rule uncontrolled by principles nor simple and pure will of Commander.

Martial Law Martial Law-(Promulgated in 1958)-Special Military Court -Sentence of death commuted by Chief Martial Law Administrator to transportation for life, further reduced to 14 years imprisonment, and finally suspended by Chief Martial Law Administrator-Suspension subsequently revoked by Commander-in Chief, Army, and offender committed to prison to undergo unexpired sentence-Revocation by Commander-in-Chief, held, valid-Martial Law Regulation (C. M. L. A.'s No. 1-A), paras. (a), (b)-Martial Law Regulation (C. M. L. A.'s No. 61), paras. 5 (1) 9 Pakistan Army Act (XXXIX of 1952), Ss. 87, 123, 144, 148 & 149-Constitution of Pakistan (1962), Arts. 225 (3) & 250 (c)-Martial Law (Pending Proceedings and Protection) Order (26 of 1962); Arts. 5(3) & 6 (3)-Martial Law Orders (Repeal) Order (29 of 1962), Art. 3 (2)-Military Court Sentences (Supplementary Provisions) Ordinance (LXXVIII of 1962), cl. 2-Validity of order revoking suspension of sentence not affected even if order of suspension be deemed to have been passed by Chief Martial Law Administrator in capacity of President-Constitution of Pakistan (1956), Art. 209 Criminal Procedure Code (V of 1898), Ss. 401 & 402-A-Special Military Courts governed by procedure laid down in Pakistan Army Act (XXXIX of 1952)-Power outside Pakistan Army Act (XXXIX of 1952), to be invoked only if that Act itself contains no relevant provision-Regulation issued by Chief Martial Law Administrator had itself status of law under cl. 4, Laws (Continuance in Force) Order (I of 1958)-Sentence suspended by Chief Martial Law Administra tor, even if Chief Martial Law Administrator was not one of the authorities falling within strict ambit of S. 144, Pakistan Army Act (XXXIX of 1952), is subject to liability of offender being subsequently committed to prison to undergo unexpired portion of sentence, by order of authority specified in S. 144, Pakistan Army Act (XXXIX of 1952)

Martial Law Sentences (Supplementary Provisions) Ordinance (LXXVIII of 1962), expressly validates orders retrospectively-[Jalal Din v. Muhammad Akram Khan P L D 1963 Lah. 596 not in accord with Muhammad Afzal v. Commissioner, Lahore Division, etc. P L D 1963 S C 401].

Varities- Martial Law promulgated following a successful revolution-Revolution of 7th October 1958Validity of Martial Law Regulations or Orders with reference to period following cessation of revolutionary regime-Constitution of Pakistan (1962), Arts. 225 & 250-[Dicey's "Law of the Constitution," 9th Edn. pp. 287-288; The Constitutional History of England" by Maitland pp. 281-283; Emperor v. Chanappa Shantirappa I L R 55 Bom. 263; Muhammad Umar Khan v. The Crown P L D 1953 Lah. 528; The State v. Dosso and another P L D 1958 S C (Pak.) 533 and Kerr and Dawsons "Constitutional Law," 2nd Edn. ref.]

Martial Law Scope and character-Conditions and circumstances necessitating introduction of-Limits of military authority.