Case no 1: AL JEHAD TRUST vs FEDERATION OF PAKISTAN
(PLD 1996 SC 324)
1. Introduction
The Al-Jehad Trust case, also called the Judges’ Case, is a landmark ruling in Pakistan's legal
history. It strongly upheld judicial independence by addressing the issue of executive interference
in judicial appointments. The Supreme Court interpreted constitutional provisions governing the
appointment of judges and reinforced the judiciary’s autonomy.
2. Facts and Background
• Filed in the 1990s, during a time of political instability and frequent government changes.
• The case was initiated by Al-Jehad Trust, a non-governmental organization, in response
to the executive's increasing control over judicial appointments.
• Focused on the appointment of judges to the Supreme Court and High Courts under
Articles 177 and 193 of the Constitution.
• Concerns were raised about bias, lack of impartiality, and executive overreach into the
judiciary.
3. Issues
• Whether the executive was undermining judicial independence by unilaterally appointing
judges.
• Whether the consultation process with the Chief Justice was being meaningfully followed.
• Whether the appointment of acting judges was being misused to influence judicial
decisions.
4. Arguments by Petitioners
• The executive bypassed the requirement of meaningful consultation, making judicial
appointments without proper input from the judiciary.
• The Chief Justice’s role in appointments must be decisive to preserve judicial
independence.
• The use of acting judges was challenged as unconstitutional and a way to control the
judiciary temporarily.
5. Principles Laid Down / Judgment
• The Supreme Court ruled that consultation with the Chief Justice must be effective,
substantial, and meaningful, not a formality.
• Acting judges can only be appointed in cases of absolute necessity; otherwise, the practice
was declared unconstitutional.
• The Chief Justice’s recommendations must be accepted unless there are strong, valid
reasons to reject them.
• Reaffirmed that judicial appointments must be free from executive pressure to ensure
rule of law and democracy.
6. Impact
• Led to the establishment of the Judicial Commission of Pakistan, ensuring transparency
in judicial appointments.
• Frequently cited in later cases to protect judicial independence.
• Helped define boundaries between the executive and judiciary, preventing encroachment
on judicial functions.
• Strengthened the constitutional framework for separation of powers.
7. Conclusion
The Al-Jehad Trust case is a cornerstone of Pakistan's constitutional law. It reinforced judicial
independence, clarified the appointment process, and protected the judiciary from executive
dominance. The decision set lasting principles to maintain impartiality, transparency, and
balance of power, ensuring the judiciary remains a guardian of democratic values and the rule
of law.
Case no 2: BEGUM NUSRAT BHUTTO vs CHIEF OF ARMY
STAFF (PLD 1977 SC 657) :
1. Introduction
The Begum Nusrat Bhutto vs. Chief of Army Staff case is a landmark decision in Pakistan’s
constitutional history. It arose in the aftermath of General Zia-ul-Haq’s 1977 military coup that
overthrew the elected government of Prime Minister Zulfikar Ali Bhutto. The case raised critical
constitutional questions regarding the legality of martial law, suspension of fundamental rights,
and the judiciary’s role during times of emergency.
2. Facts and Background
• The 1977 general elections were marred by widespread allegations of rigging, leading to
political unrest.
• General Zia-ul-Haq imposed martial law through a military coup on July 5, 1977,
suspending the Constitution and arresting political leaders, including Zulfikar Ali Bhutto.
• Begum Nusrat Bhutto filed a petition challenging the legality of the martial law and the
arrest of political leaders.
3. Issues
• Whether the imposition of martial law and the suspension of the Constitution were
constitutional.
• Whether the detention of political leaders violated fundamental rights.
• Whether the judiciary could review and intervene in actions taken under martial law.
4. Arguments by Petitioners
• Martial law and arrests were unconstitutional and violated basic rights.
• The military coup lacked legal justification.
• The judiciary had a duty to restore democratic governance and uphold the Constitution.
5. Principles Laid Down / Judgment
• The Supreme Court, led by Chief Justice Anwar-ul-Haq, invoked the Doctrine of
Necessity to validate the military coup.
• The Court held that extraordinary measures were justified to preserve the state.
• It stated that martial law should be temporary and steps must be taken to restore
constitutional governance.
• The decision provided legal cover for military intervention in governance.
6. Impact
a. Doctrine of Necessity:
• Provided justification for future military interventions.
• Undermined civilian supremacy and judicial independence.
b. Erosion of Democratic Norms:
• Strengthened military control and weakened democratic institutions.
• Political opposition and civil liberties were suppressed.
c. Impact on Constitutionalism:
• Exposed judiciary’s vulnerability to political pressures.
• Weakened enforcement of constitutional rights during crises.
d. Legacy and Precedent:
• Set a precedent later used to justify General Musharraf’s 1999 coup.
• Triggered a cycle of judicial validation of military regimes.
7. Conclusion
The Begum Nusrat Bhutto case marked a turning point in Pakistan’s legal and political landscape.
Though the judgment aimed at preserving order, it legitimized military rule and weakened
democratic and constitutional principles. It remains a cautionary example of how judicial decisions
during crises can shape the future of governance and civilian rule.
Case no 3: MEHRAM ALI vs FEDERATION OF PAKISTAN (PLD
1998 SC 1445) :
1. Introduction
The Mehram Ali vs. Federation of Pakistan case is a significant Supreme Court decision that
tested the constitutionality of Anti-Terrorism Courts (ATCs) established under the Anti-
Terrorism Act, 1997. It dealt with the challenge of ensuring justice during rising terrorism while
protecting individual rights and upholding constitutional values.
2. Facts and Background
• During the 1990s, Pakistan witnessed a surge in terrorism and sectarian violence.
• To address this, the government enacted the Anti-Terrorism Act, 1997, creating ATCs
for speedy trials.
• Mehram Ali, convicted by an ATC, challenged the law, claiming it undermined judicial
integrity and due process.
3. Issues
• Whether the establishment of ATCs violated Articles 175 and 203 of the Constitution.
• Whether procedures followed by ATCs infringed upon the right to a fair trial and
judicial independence.
• Whether limited appeals and fast-track processes denied constitutional protection to
the accused.
4. Arguments by Petitioners
• ATCs breached constitutional guarantees of judicial independence and due process.
• Limited appeal rights and expedited trials under ATCs denied a fair trial.
• Argued that such courts operated outside the constitutional judicial hierarchy, making
them unconstitutional.
5. Principles Laid Down / Judgment
• The Supreme Court upheld the constitutionality of the Anti-Terrorism Act, 1997.
• It acknowledged the state's need for special measures to combat terrorism.
• However, the Court:
o Stressed that ATCs must function within constitutional limits.
o Emphasized adherence to due process and fundamental rights.
o Laid down guidelines ensuring that special courts remain accountable and not
arbitrary.
6. Impact
a. Validation of Special Courts:
• Legitimized the creation of ATCs and similar courts under extraordinary
circumstances.
b. Emphasis on Constitutional Safeguards:
• Reinforced that even special courts must respect fundamental rights.
c. Influence on Legislation and Judiciary:
• Guided future laws and judgments concerning special courts and anti-terror efforts.
d. Protection of Due Process and Human Rights:
• Asserted the importance of maintaining rule of law even during national security
challenges.
7. Conclusion
The Mehram Ali case established a crucial balance between national security and
constitutional rights. While endorsing the state's authority to tackle terrorism, the Supreme
Court ensured that due process, judicial independence, and human rights remain protected.
This decision continues to serve as a foundational precedent for evaluating the legality and
fairness of special courts in Pakistan.
Case no 4: ASMA JILANI vs GOVERNMENT OF PUNJAB (PLD
1972 SC 139) :
Introduction
The Asma Jilani case is a milestone in Pakistan's constitutional history, delivered by the
Supreme Court in 1972. It challenged the legality of General Yahya Khan’s martial law regime,
declared military rule unconstitutional, and rejected the doctrine of necessity, which had
previously been used to validate military takeovers. This case reaffirmed the supremacy of the
Constitution, emphasized judicial independence, and became a foundational ruling for
constitutionalism in Pakistan.
1. Background and Context
• In 1969, after President Ayub Khan's resignation, General Yahya Khan seized power
and declared martial law, suspending the Constitution and dissolving legislative
assemblies.
• Under martial law, political leaders were detained without due process, including Malik
Ghulam Jilani, a senior political figure and father of Asma Jilani.
• Asma Jilani filed a petition challenging her father’s detention, and by extension, the
legitimacy of Yahya Khan’s rule.
2. Key Legal Issues
1. Legality of Martial Law:
Whether a military coup and imposition of martial law were constitutionally valid.
2. Authority of Unconstitutional Regimes:
Whether Yahya Khan’s regime had legal authority to suspend fundamental rights and
the Constitution.
3. Judiciary’s Role:
Could courts review and challenge the legality of actions taken by military regimes?
3. Supreme Court’s Decision
The Supreme Court, led by Chief Justice Hamoodur Rahman, delivered a landmark verdict:
a. Declared Yahya Khan’s Regime Illegal
• Held that Yahya Khan was not a lawful ruler.
• His assumption of power was a usurpation and had no constitutional basis.
b. Rejected Doctrine of Necessity
• The Court explicitly overruled the doctrine of necessity (used earlier in State vs. Dosso
(1958)).
• Declared that no extra-constitutional justification (like necessity or emergency) can
validate military coups.
c. Affirmed Supremacy of the Constitution
• The Constitution is the highest legal authority.
• Any deviation from it, including imposition of martial law, is void ab initio (invalid from
the beginning).
d. Emphasized Role of Judiciary
• Courts have a duty to protect the Constitution and ensure fundamental rights.
• Even during military rule, the judiciary cannot be silent and must review
unconstitutional actions.
4. Principles Laid Down
1. Supremacy of the Constitution
• Constitution is the supreme law.
• All individuals, including the military, are bound by it.
2. Rejection of Doctrine of Necessity
• Military takeovers cannot be justified on the grounds of national emergency or necessity.
• Unconstitutional acts remain illegal, regardless of circumstances.
3. Judicial Independence and Responsibility
• Judiciary must remain independent, neutral, and committed to constitutional
principles.
• It has the responsibility to protect citizens' rights and review executive/military actions.
4. Legitimacy of Government
• Only those governments that come into power through constitutional means are
legitimate.
• Military regimes lack legal and moral authority.
5. Protection of Fundamental Rights
• Fundamental rights cannot be suspended or violated by military governments.
• Every citizen is entitled to constitutional safeguards, even during emergencies.
5. Impact on Pakistan’s Legal and Constitutional Framework
1. Strengthening Constitutionalism
• Reinforced the rule of law and democratic governance.
• Served as a deterrent to future military coups.
2. Empowering the Judiciary
• Empowered courts to challenge extra-constitutional measures.
• Reasserted the role of judiciary as a protector of rights and constitutional values.
3. Setting a Legal Precedent
• Influenced future constitutional judgments, including those challenging emergency
powers and military actions.
• Often cited in landmark cases like the Sindh High Court Bar Association case (2009).
6. Conclusion
The Asma Jilani case is a historic and courageous judgment that restored faith in constitutional
democracy in Pakistan. By declaring martial law illegal, rejecting the doctrine of necessity, and
emphasizing the supremacy of the Constitution, the Supreme Court set strong precedents for
upholding the rule of law and judicial independence. It remains a cornerstone in Pakistan's
constitutional jurisprudence and continues to inspire efforts toward democratic accountability
and protection of civil liberties.
