7th amendment

Page 46

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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


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