=46=
respectfully
beg
to
disagree
with
the
view
that
this
is
a
doctrine for validating illegal acts of usurpers. In my humble opinion this doctrine can be involved in aid only after the court has come to the conclusion that acts of the usurpers were illegal and illegitimate.” In Asma Jilani and Zarina Gauhar, this
doctrine
anamoly
left
was
used
behind
only
by
to
avert
authoritarian
chaos rule
confusion and
to
and
preserve
continuity and consistency after martial subsided. The Pakistan Supreme Court in Begum Nusrat Bhutto-v-Chief of Army Staff ((PLD) 1977 (sc) 657) staged a U-turn. Through a rather paradoxical decision , the
Court in one breath, with
reference to Kelsen’s pure theory of law, said,”
“Not only has
this theory has 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
legality,
it
excludes
from
consideration
sociological or morality and justice which contributes to the acceptance or the new legal order” and stated
with the another
breath, ”That the imposition of Martial Law, therefore, stands validated on the doctrine of necessity....” Supreme
Court
in
Sindh
High
Court
Bar
No wonder Pakistan Association
–vs-
Federation of Pakistan ( PLD 2009, SC Spl), not only parted company with the ratio in Nusrat Bhutto case, but came down with a rather pageant, outspoken comment about the judges who would recognise usurpers
in future , in following language,
”We lay it down firmly that the assumption of power by an authority
not
mentioned
in
the
Constitution
would
be
unconstitutional , illegal, void ab-initio and not liable to be recognised by any court, including the Supreme Court.” Anwarul