The State v. Dosso – Martial Law and Legal Legitimacy
Understanding the Landmark Case of The State v. Dosso (PLD 1958 SC 533)
The State v. Dosso is a pivotal constitutional case in the legal history of Pakistan that laid the foundation for the controversial doctrine of necessity. Decided by the Supreme Court in 1958, this case upheld the legitimacy of martial law imposed by General Ayub Khan and validated the abrogation of the 1956 Constitution based on Hans Kelsen’s theory of legal revolution.
The judgment had far-reaching consequences on constitutionalism, judicial independence, and fundamental rights in Pakistan. It was later reaffirmed in subsequent rulings before finally being overruled in the landmark Miss Asma Jilani v. Government of the Punjab case (PLD 1972 SC 139)
Background & Legal Context
Dosso, a tribal resident of Loralai, Balochistan, was convicted by a tribal Jirga under the Frontier Crimes Regulation, 1901. He challenged the conviction through a writ petition before the Lahore High Court, arguing that the FCR violated the fundamental rights guaranteed by the 1956 Constitution. The High Court ruled in his favor, declaring the FCR unconstitutional. However, the Supreme Court of Pakistan reversed the decision, invoking Hans Kelsen’s theory of legal positivism, particularly the doctrine of necessity. The judgment legitimized the 1958 martial law imposed by President Iskander Mirza, setting a precedent for future military interventions and weakening Pakistan’s constitutional democracy.
The case of The State v. Dosso must be understood within the broader framework of the legal, constitutional, and political landscape of Pakistan in the 1950s.
1. Frontier Crimes Regulation, 1901 (FCR)
The FCR was a colonial-era law designed by the British to control the tribal areas (now merged into Khyber Pakhtunkhwa). It operated independently of mainstream judicial protections and relied heavily on mechanisms such as:
- Collective punishment,
- Limited right to appeal, and
- No standard trial procedures.
Under FCR, decisions were made through political agents rather than impartial judicial officers.
2. Tribal Justice System: Loya Jirga
In tribal areas, justice was customarily administered through Jirgas—a traditional council of tribal elders. These Jirgas had deep roots in Pashtunwali (the Pashtun code of life), and their verdicts, though socially acceptable, often lacked:
- Legal reasoning or written records,
- Individual rights protections, and
- Adherence to statutory or constitutional procedures.
In Dosso’s case, the Loya Jirga convicted him under the FCR, which was challenged as unconstitutional.
3. The 1956 Constitution of Pakistan
Promulgated on 23rd March 1956, this was Pakistan’s first constitution. It:
- Declared Pakistan an Islamic Republic,
- Provided for fundamental rights (such as due process and equal protection under law), and
- Created a framework for judicial review, enabling courts to strike down laws repugnant to the Constitution.
Under this Constitution, the Lahore High Court declared FCR provisions ultra vires, initiating the constitutional question that ultimately reached the Supreme Court.
Facts of the Case
Subsequent Affirmations and Later Overruling of Dosso Case
1. Reaffirmation by the Supreme Court in Later Cases
- The Supreme Court reaffirmed the principles of State v. Dosso in:
- Province of East Pakistan v. Mehdi Ali Khan, PLD 1959 SC 387
- Bimal Bebari v. Province of East Pakistan, PLD 1968 SC 185
In both judgments, the Court continued to endorse Hans Kelsen’s theory of revolutionary legality, holding that:
“A victorious revolution is a legal mode of changing, Constitution and the national legal order for its Validity depends upon the will of the new law-creating organ. Even, Courts function only to the extent and in the manner determined by the new Constitutional order. - A successful revolution satisfies the test of efficacy. If the new Constitutional Order suspends the Fundamental Rights, the pending applications for writs or writs already issued but sub-judice in appeal before the Supreme Court or requiring enforcement, abate, and any statute declared void on the basis of its being inconsistent therewith shall revive.”
This reaffirmation entrenched the doctrine of efficacy—that a change in constitutional order becomes valid and binding if it gains effective control.
2. Overruling in Asma Jilani Case
The doctrine laid down in Dosso was expressly overruled by the Supreme Court in:
Miss Asma Jilani v. Government of the Punjab, PLD 1972 SC 139
The Court in Asma Jilani rejected the application of Kelsen’s theory to justify constitutional abrogation through martial law. It ruled that military rule cannot be a source of lawful authority, emphasizing the supremacy of the Constitution and constitutional continuity.
Facts of the Case:
Tribal Convictions under FCR
Dosso and others were either convicted by or their cases referred to the Council of Elders under section 11 of the Frontier Crimes Regulation, 1901.
Constitutional Challenge in High Court
The petitioners approached the Lahore High Court under writ jurisdiction, challenging the legality of their convictions and references on the following grounds:
- That the relevant provisions of the Frontier Crimes Regulation were void, as they were repugnant to the constitutional guarantee of “equality before the law and equal protection of the law.”
- That their right to counsel, as guaranteed under Articles 5 and 7 of the 1956 Constitution, had been violated.
High Court (Lahore) Ruling
Relief Granted to Petitioners
The High Court accepted the writ petitions and set aside the convictions and references made by the Jirga. The State filed appeals against these decisions before the Supreme Court of Pakistan.
Political Upheaval and Martial Law (1958)
Abrogation of the Constitution
While the appeals were pending and scheduled for hearing on 13 October 1958, President Iskander Mirza issued a proclamation on 7 October 1958, which:
- Abrogated the 1956 Constitution
- Dismissed the Central and Provincial Cabinets
- Dissolved the National and Provincial Assemblies
- Imposed Martial Law throughout the country
Appointment of Martial Law Administrator
The Commander-in-Chief of the Army was appointed as the Chief Martial Law Administrator.
Laws Continuance in Force Order, 1958
Validation of Existing Laws
On 10 October 1958, the President issued the Laws Continuance in Force Order, 1958, which:
- Validated and continued all laws (except the abrogated Constitution) that were in force before the proclamation
- Restored the jurisdiction of the courts, including the Supreme Court and High Courts, to issue writs
- Declared that the country would be known simply as Pakistan, instead of the Islamic Republic of Pakistan
- Mandated that Pakistan be governed “as nearly as may be” under the framework of the former Constitution
Supreme Court Decision
Effect of the New Legal Order
The appeals were adjudicated in the light of the new constitutional order established by the Laws Continuance in Force Order. The Supreme Court:
- Held that the writ proceedings had abated due to the change in the legal framework
- Recalled the writs and directions issued by the High Court
- Allowed the appeals, thereby reinstating the convictions and decisions made under the FCR
These appeals were decided in the light of the change in the law brought about by the new Order and allowed in accordance with the judgment of the majority, and the proceedings for writs in each of these cases were held to have abated, with the result that the directions and writs issued by the High Court were recalled.
Supreme Court’s Legal Reasoning
Revolution as a Legally Recognized Method of Constitutional Change
The Supreme Court held that a successful revolution or coup d'état constitutes a legally recognized means of constitutional change in international law. Once such a change occurs, the validity of the national legal order must be assessed in light of the authority of the new law-creating organ. As a consequence, even courts lose their former jurisdiction and may only function to the extent permitted by the newly established constitutional framework.
Jurisdiction of Courts under a New Constitutional Order
The Court observed that, following a successful revolution, the existing judicial institutions lose their authority under the prior legal framework. They may continue to function only to the extent and in the manner authorized by the newly established constitutional order. Therefore, even the jurisdiction of the courts becomes subject to the new legal system.
Continuity of the State under International Law
Referring to Kelsen’s analysis, the Supreme Court affirmed that if the territory and population of a country remain substantially unchanged, there is no transformation in the international personality of the State. Under international law, the new regime and its legal order are deemed legitimate. The State’s corpus and identity remain intact; only its internal legal structure changes.
“Where revolution is successful, it satisfies the test of efficacy and becomes a basic law-creating fact.”— Hans Kelsen: "General Theory of Law & State" translated by Anders Wedberg; 20th Century Legal Philosophy Series pp. 117 118
Efficacy as the Test of Legal Validity
A revolution that succeeds in establishing effective control satisfies the test of efficacy and thereby becomes a basic law-creating fact. On this basis, the Court viewed the Laws (Continuance in Force) Order, 1958, though transitional and provisional, as a valid new legal order. Consequently, the validity of laws and the propriety of judicial decisions were to be assessed under this new framework. The Court referenced Jibendra Kishore Achharyya Chowdhury v. Province of East Pakistan, PLD 1957 SC (Pak.) 9 in support.
Effect of the Laws (Continuance in Force) Order, 1958
Interpretation of Articles II and IV
According to Article II of the Order, Pakistan was to be governed "as nearly as may be" in accordance with the 1956 Constitution. However, this provision did not restore fundamental rights, as the reference pertained solely to the structure and framework of governance—not to the substantive constitutional provisions. Article IV explicitly abrogated the former Constitution, thereby eliminating its enforceable rights.
Scope for Future Writ Petitions
Future writ applications could only be entertained on the ground that one or more laws preserved under Article IV, or any rights explicitly continued by the Order, had been violated. The scope of constitutional remedies was thus narrowly confined to the rights saved under the new order, not the abrogated Constitution.
Abatement of Pending Writ Proceedings
The Court interpreted clause (7) of Article II to mean that, except for writs issued between the Proclamation of Martial Law and the Promulgation of the Order, no writ issued after the Proclamation would have any legal effect unless it was based on a contravention of the laws or rights preserved by the Order.
Any pending writ proceedings premised on the violation of fundamental rights, as guaranteed by the now-abrogated Constitution, were held to have abated forthwith. This abatement extended not only to writ applications themselves but also to any proceedings requiring the enforcement of such writs.
Finality of High Court Judgments under Appeal
The Court further clarified that no judgment, writ, or order of a High Court can be treated as final if:
- The High Court had certified the case as fit for appeal, and an appeal had been filed; or
- The Supreme Court had granted special leave to appeal.
In such cases, the appellate jurisdiction of the Supreme Court remained active, and the High Court’s decision could not be considered final or binding.
Chief Justice Munir’s Judgment and the Legality of the New Constitutional Order
Chief Justice Muhammad Munir, delivering the leading opinion of the Supreme Court, held that “Article 5 of the late Constitution” had ceased to exist under the new constitutional framework introduced by the Laws (Continuance in Force) Order, 1958. Consequently, the Frontier Crimes Regulation, 1901 remained in force by virtue of Article IV of that Order, and all proceedings challenging its validity were no longer sustainable. The Court upheld that the convictions recorded and references made to the Council of Elders under the FCR were legally valid.
Chief Justice Munir further laid down that:
A victorious revolution or a successful coup d’état is an internationally recognized legal method of changing a Constitution, and that after a change of that character had taken place, the national legal order must for its validity depend upon the new law-creating organ. Even courts lose their existing jurisdictions and can function only to the extent and in the manner determined by the new Constitution.
He added:
If the territory and the people remain substantially the same, there is, under the modern juristic doctrine, no change in the corpus or international entity of the State, and the Revolutionary Government and the new Constitution are, according to International Law, the legitimate Government and the valid Constitution of the State.
Based on this reasoning, the Court held that a successful revolution satisfies the test of efficacy and becomes a basic law-creating fact. Accordingly, the Laws (Continuance in Force) Order, 1958, however transitional or imperfect, constituted a new legal order. The validity of existing laws and judicial decisions was, therefore, to be determined within the framework of that new legal structure.
Justice A.R. Cornelius’s Dissenting Opinion
Justice A.R. Cornelius, dissenting from the majority opinion of the Supreme Court, held a different constitutional interpretation concerning the application of the Laws (Continuance in Force) Order, 1958. He opined that:
Clause (7) of Article II of the Order did not have the effect of bringing to an abrupt end, in the circumstances of the two cases, the proceedings in the High Court which were under examination before the Supreme Court.
Justice Cornelius emphasized that it was not legally permissible for the Supreme Court to overturn the judgments of the High Court in these two cases, nor to recall the writs issued by them, unless it could be shown that:
The view of the High Court on the point of repugnancy to Article 5 of the Constitution of 1956 was not tenable.
Impacts of the Verdict
1. Recognition of Martial Law
The judgment of the Supreme Court effectively validated the imposition of martial law, thereby providing constitutional legitimacy to military interventions in the political affairs of the state. This legal endorsement undermined democratic governance and contributed significantly to the rise of military dictatorship in Pakistan—ultimately playing a role in the disintegration of the country.
2. Abrogation of the Constitution
Following independence, Pakistan underwent a prolonged constitutional development process spanning nine years, involving three Governor Generals, four Prime Ministers, and two Constituent Assemblies (1947–1954 and 1955–1956). This culminated in the adoption of the 1956 Constitution. However, only two years after its promulgation, the President abrogated it. Rather than condemning this unconstitutional act, the Supreme Court's judgment defended and legally shielded it, depriving the country of its first constitutional framework.
3. Encouragement of Future Military Interventions
By validating the legitimacy of the 1958 coup and establishing the principle of necessity, the verdict laid the foundation for repeated military interventions in Pakistan’s civil and political systems. The continuity of such interference has disrupted the democratic process and caused long-term economic and societal instability.
4. Erosion of Judicial Independence
A judge is bound by oath to uphold justice impartially, without fear, favor, affection, or ill will, and to protect the Constitution. However, this verdict compelled the judiciary to operate under the new legal order established by the Laws (Continuance in Force) Order, 1958. As a result, judges were forced to validate actions contrary to fundamental principles of justice, thereby compromising judicial independence and integrity.
Conclusion:
Frequently Asked Questions (FAQs)
What was the main issue in The State v. Dosso case?
The main issue was whether the imposition of martial law and abrogation of the 1956 Constitution were valid under the legal system of Pakistan, and whether the Frontier Crimes Regulation (FCR) violated fundamental rights.
What theory did the Supreme Court rely upon in Dosso’s case?
The Supreme Court relied on Hans Kelsen’s theory of legal revolution, which states that a successful revolution creates a new legal order if it is efficacious.
Was the Dosso judgment ever overruled?
Yes, the Dosso judgment was overruled in Miss Asma Jilani v. Government of the Punjab (PLD 1972 SC 139), where the court rejected Kelsen’s theory and held martial law to be unconstitutional.
What impact did the Dosso case have on Pakistan’s legal history?
The case legitimized the first martial law in Pakistan and set a precedent for future constitutional disruptions through military interventions, weakening democratic continuity and judicial independence.
Last updated on August 4, 2025