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    State Vs Dodso

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    Omer Mirza
    The Supreme Court case State v. Dosso validated the imposition of martial law in Pakistan in 1958 by invoking Kelsen's theory that "a victorious revolution was itself a law creating fact." The court held that while the 1956 constitution was abrogated, the country would be governed as closely as possible under the constitution. The case arose from a writ challenging the validity of martial law and the Laws (Continuance in Force) Order, 1958. The Supreme Court decided that a successful revolution establishes a new legal authority and national legal order, and that courts function according to the new constitution established by the revolutionary authority.

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    State Vs Dodso

    Uploaded by

    Omer Mirza
    72 views3 pages
    The Supreme Court case State v. Dosso validated the imposition of martial law in Pakistan in 1958 by invoking Kelsen's theory that "a victorious revolution was itself a law creating fact." The court held that while the 1956 constitution was abrogated, the country would be governed as closely as possible under the constitution. The case arose from a writ challenging the validity of martial law and the Laws (Continuance in Force) Order, 1958. The Supreme Court decided that a successful revolution establishes a new legal authority and national legal order, and that courts function according to the new constitution established by the revolutionary authority.

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    The Supreme Court case State v. Dosso validated the imposition of martial law in Pakistan in 1958 by invoking Kelsen's theory that "a victorious revolution was itself a law creating fact." The court held that while the 1956 constitution was abrogated, the country would be governed as closely as possible under the constitution. The case arose from a writ challenging the validity of martial law and the Laws (Continuance in Force) Order, 1958. The Supreme Court decided that a successful revolution establishes a new legal authority and national legal order, and that courts function according to the new constitution established by the revolutionary authority.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    72 views3 pages

    State Vs Dodso

    Uploaded by

    Omer Mirza
    The Supreme Court case State v. Dosso validated the imposition of martial law in Pakistan in 1958 by invoking Kelsen's theory that "a victorious revolution was itself a law creating fact." The court held that while the 1956 constitution was abrogated, the country would be governed as closely as possible under the constitution. The case arose from a writ challenging the validity of martial law and the Laws (Continuance in Force) Order, 1958. The Supreme Court decided that a successful revolution establishes a new legal authority and national legal order, and that courts function according to the new constitution established by the revolutionary authority.

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    © All Rights Reserved
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    of 3

    State v.

    Dosso (PLD 1958 SC (Pak) 533


    Preliminary Note:
    in case of State v. Dosso (PLD 1958 SC (Pak) 533) Supreme Court validated the imposition
    of martial law by invoking the Kelsenian theory and held that,

    “a victorious revolution was itself a law creating fact.”

    Although the application of Kelsenian theory in the facts and circumstances of that case
    has been subject of critical comment but the positive aspect of the judgment was that it
    unequivocally declared that “the country would continue to be governed as nearly as
    possible under the Constitution”. which stood abrogated in the case of Province of East
    Pakistan v. Muhammad Mehdi Ali Khan (PLD 1959 SC 387).

    Facts which leaded to State V, Dosso case 1958:

    Following interesting events led toward the Dosso case.

    I- End of 1956 constitution.

    II- Dissolution of the central legislature.

    III- Dissolution of the central cabinet.

    IV- Dissolution of Provincial legislature

    V- Dissolution of Provincial Cabinet.

    VI- Imposition of Martial Law by Muhammad Ayub Khan.

    VII- Control of legislative functions by Chief Martial Law administrator.

    VIII- Control of Administrative powers by Chief Martial Law administrator.

    IX- Promulgation of Law (Continuance in force) Order 1958.


    Writ in High Court:

    A writ was filed by the petitioner in the High Court. Two writs were demanded to
    be issued which were writ of Certiorari and writ of Mandamus. The petitioners
    also questioned regarding the validity of the Frontier Crimes Regulations.

    The High Court issued the writs in the favour of petitioners.

    Appeal to Federal Court:

    The Government which was not satisfied with the decision of the High Court, filed
    an appeal before the federal court.

    Judges:
    I- Muhammad Munir C.J.,

    II- M. Shahabuddin. J.

    III- A.R. Cornelius. J.

    IV- Amiruddin Ahmad. J.

    Bfrief Facts:
    Martial Law was imposed in 1956, it annuled the constitution of 1956, and dismissed the
    Central and Provincial cabinets. By Imposition of martial law, the entire legislatuve and
    administrative mechinary was took over by Chief Martial Law Administrative, and an
    order known as The Laws (Continuance in Force) Order, 1958, was promulgated.

    Effect of Laws (Continuance in Force) Order, 1958:


    The effect of this order was,

    I- The validation of laws other than the Constitution of 1956.

    II- Assumption of authority by the Martial Law Administration

    III- Resturation of the jurisdiction of all the courts


    The point involved in appeal:
    Whether National legal order depends upon new law creating authority or victorious
    revolution, for its validity.

    Decision:
    I It was held that, a victorious revolution or a successful coup, is an
    internationally recognized legal method of changing a constitution and
    that, after a change of that character, the National Legal order, depends
    upon the new law creating order, for its validity.

    II- It was also held that, even courts can funtion only, in the manner
    determined by the new Constitution.

    III- It was also held that, if the territory and the people remain substantially the
    same, then the corpus of the international entity of the State does not
    change.

    IV- Where revolution is successful, it satisfies the test of afficacy and becomes
    a basic law creating fact.

    kelsen's theory of law:


    The theory of Doctrine of Necessity originated with one of the great legal theorists of the 20th
    century, Hans Kelsen (1881-1973), in his classical study Theory of Law and State “a successful
    revolution is a law-creating fact”

    Doctrine of Necessity:
    Doctrine of Necessity means that, which otherwise is not lawful, necessity makes it lawful.

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