Assignment: The leading constitutional cases of Pakistan

Begum Nusrat Bhutto vs chief of Army staff case.

Background: The general elections of 1977 were held on 7th March 1977 in Pakistan,
the main competition in that election was between PPP (Pakistan people’s party) under
the leadership of Zulfiqar Ali Bhutto and PNA (Pakistan National Alliance) under Abdul
wali Khan.
As a result of the election, Pakistan People’s party won the election with a majority of
155 out of 216 seats meanwhile Pakistan National Alliance could win only 36 seats. The
PPP's victory meant Bhutto would continue as Prime minister but the opposition
completely refusing the result of the election alleged Bhutto of rigging and official
interference and started mass demonstration which made the situation of chaos and
conflict in the country.
As a result of this conflict the chief of the army staff, General Zia-ul-Haq took a big step
and promulgated the Martial law in the country on 5th July 1977 and suspended (not
abrogated) the constitution of Pakistan, dissolved the national and provincial assemblies,
and appointed the chief justice the high court of the provinces as the acting governors
and took over as Chief Martial law Administrator (CMLA) further he also arrested Zulfiqar
Ali Bhutto along with other leaders of PPP saying that new and fair elections would be
held in the country under 90 days.

Begum Nusrat Bhutto files a writ petition in the Supreme Court.

The constitutional petition was filed by Begum Bhutto under Article 184 (3) against the
chief martial law administrator (CMLA), challenging the validity of the chief of army staff
(COAS) to promulgate martial law, as well as the detention of Zulfikar Ali Bhutto and 10
other party leaders who were arrested on Sept 17, 1977, under order 12 of the law
constituence in force order.
The application was admitted for hearing. A nine-member bench was constituted
to hear the petition; the judges included chief justice of Pakistan justice Anwar-ul-Haq
and other chief justices of the Supreme court.
Assignment: The leading constitutional cases of Pakistan

Arguments by petitioner (yahya Bahkhtiyar)

 Yahya Bakhtiyar argued that the allegations made by COAS on 17 Oct 1977
were unfair and mala fide.
 The council said that this case should be solved concerning the Asma Jilani
case.
 Mr. Bakhtiyar argued that according to the constitution 1977 COAS had
no authority to impose martial law in the country so this should be dealt
with the article 6 of the constitution.
 It was further argued that the arrest and detention of top leaders of PPP
were highly discriminatory and mala fide and violation of fundamental
rights especially 9, 10, 17, 25.
Arguments by the defensive side (A.K Brohi)
 The council argued based on the judgment of Dosso’s case.
 A.K Brohi argued that after the imposition of martial law the constitution
has been suspended and new legal order has been imposed and
according to the new legal order, detention is legal.
 It was further argued that the imposition of martial law was the need of
time (doctrine of necessity) so this case should be dealt with according to
the doctrine of necessity furthermore he said Zia imposed martial so that
free and fair elections could be held in the country
The Decision of the Supreme court
 In the decision, the Supreme court stated that the constitution of 1977 is
still the supreme law of the land but subject to such conditions some of
the articles and provisions were suspended for some time.
Assignment: The leading constitutional cases of Pakistan

 The Supreme court said that the objection is technical that COAS has no
authority to impose martial in the country but when martial is imposed
and the constitution has been suspended and new legal order has been
promulgated and Zia-ul-Haq has become CMLA, according to new law
he could suspend the fundamental rights
 The court decision was based upon Kelsen theory, in addition, the
judgment said that the P.M failed to maintain law in order in the country
that’s why it was necessary to impose martial law
 According to the new legal order, The Supreme Court declared,
The Martial law and detention of Zulfiqar Ali Bhutto LEGAL

Written by: Sadam Hussain Mughal