With the reference to decided cases around the world, discuss the effects of successful revolution

on the Grundnorm.

There are multiple cases around the world which had a significant impact on the

Grundnorm by revolution such as in Pakistan, Uganda, South Rhodesia and Fiji. Grundnorm is

derived from the german word which means fundamental norm. This term is used in Hans

Kelsen’s Pure Theory of Law and its doctrine of the Grundnorm which analyzes the political and

constitutional situations that is created in the aftermath of revolutions such as in unstable

countries mentioned. Kelsen’s Pure Theory of Law attempts to differentiate between law and

what is not strictly law and he distinguishes it from facts and morals. The main elements of

Kelsen’s theory is also derived from Immanuel Kant’s theory which are the world of things and

the world of ideas following with what is, and what ought to be done or not done. For example,

when a law is made based on the object of the law that says it provides speedy trials for certain

offences, and then the object is a norm as the act may not be able to always provide for a speedy

trial but the enactment of the act is still a fact.

Kelsen as modern legal positivists feels that moral judgments, political biases and

sociological conclusions should be put aside for the purpose of creating pure law. Kelsen also

wanted to isolate the legal structure and his pure theory of law would describe it would reduce it

to anything more than it is. He also characterized laws as rules or norms which are always a part

of a system of norms that has a relationship that is valid which they derive from higher norms.

When discussing the Grundnorm, Kelsen recognized that the chains of validity does not regress

and run out of higher authorizing valid norms and the validity is conferred on the system as a

whole. Hans Kelsen describes the grundnorm as the fundamental assumption made by people in

society about what would be treated as law. For example in religion, a person may say that we

cannot do a certain act because that is what God said which makes it your foundational belief.

However, if you follow the basic norm it is because you believe in what the parliament says and

the authority that the parliament has for passing the norms or laws. Not all particular grundnorm

may be applied in society but it depends on what fundamental assumptions are made by the

members of that society.

According to Kelsen, in a revolution both peaceful and violent, the grundnorm can be

replaced by events such as military coup or granting of independence from the colonizer to its

colony which can be demonstrates by the cases mentioned. During a revolution, even if the

grundnorm is changed, and laws made by previous regime governing the citizens remained

unchanged because it still requires the consent of the new grundnorm. The content of these

norms remains unchanged but the reason for their validity changes as the previous grundnorm is

displaced by a new grundnorm. The first case that will be discussed is a revolution case in

Pakistan. In the case of Asma Jilani v The Government of Punjab, Malik Ghulan Jilani was

arrested at Karachi under an order purported to have been issued in exercise of powers conferred

by clause (b) of sub rule (1) of rule 32 which is read with rule 213 of the Defence of Pakistan

Rules, 1971. This order was challenged in the Lahore High Court through a writ petition which

was admitted to regular hearing and a notice was issued to the Government of Punjab. A day

earlier on 30th December 1971, the order was rescinded and substituted by another order of the

same day purported to have been issued by the Martial Law Administrator, Zone C in exercise of

the powers said to have been conferred on him by Martial Law Regulation no.78. Asma Jilani

who is the daughter of the détente, challenged the validity of the order of her father’s detention.

The petition was resisted by the Government and a preliminary object was raised that the High

Court had no jurisdiction in the matter because of the bar contained in the jurisdiction of Courts,

Order 1969 that was promulgated by the last Martial Law regime. Hamood Rehman C.J laid

down “With the utmost respect, therefore, I would agree with the criticism that the learned Chief

Justice not only misapplied the doctrine of Hans Kelsen, but also fell into error in thinking that it

was generally accepted doctrine of modern jurisprudence and even the disciples of Kelsen have

hesitated to go as far as Kelsen had gone.

The High Court held that it had no jurisdiction because of the Removal of Doubts Order

No.3 of 1969 barred the courts from questioning the validity of any act done under the Martial

Law Regulation No.78 of 1978. Asma Jilani appealed to the Supreme Court that this country was

not a foreign country which had been invaded by an army with General Agha Mohammad Yahya

Khan as its Head, nor was it an alien territory which had been occupied by the said Army. She

then added that Martial Law could not have arisen in the circumstances and Pakistan had its own

legal doctrine which is the Qur’an and the Objectives Resolution and Martial law was never

superior to the Constitution. The Supreme Court held that Yayha Khan was neither a victor nor

Pakistan was an occupied territory and thus declared him a “Usurper”. All his actions were also

declared illegal. When Asma Jilani’s judgment was released, Yayha Khan was not in power but

now it was Bhutto’s Martial Law and Bhutto was the chief Martial Law administrator and the

president. This case paved the way for the restoration of democracy and it was followed by the

interim Constitution of 1972 and then by the permanent Constitution of 1973. Due to the judicial

decision in this case, Bhutto was compelled to remove the Martial Law.

This is a famous case which clearly illustrates the effect of a revolution and its impact on

the grundnorm. Based on this case, the assumptions was not justified and Kelsen’s theory was

not a universally accepted theory but Kelsen was only trying to law down a pure theory of law as

rule of normative science which consists of multiple systems of norms. Under the heading the

"Principles of Legitimacy" Kelsen points out those legal norms may be limited in time. The end

as well as the beginning of this validity is determined only by the order to which they belong.

They remain valid as long as they have not been invalidated in the way which the legal order

itself determines. This is the principle of legitimacy. Kelsen then describes the illegitimate way

of changing the legal norms by ways of a revolution, coup d’état which occurs whenever the

legal order of a community is replaced by a new order in an illegitimate way. Kelsen also says

that the victorious revolution and successful coup d’état are law as long as the territory and the

population remain; it is possible that international law recognizes the victorious revolution as

legal methods of changing the constitution. What Kelsen has said about the legitimacy of norm

and legal authority of a revolutionary Government must be read separately and not mixed up.

While revolution may destroy the existing national legal odor base after the change the reality of

the State has disappeared from behind that order, It does not follow that the legal order, which

replaces it, is the expression of the superior will of one or more revolutionaries who staged

victorious revolution or successful coup d’état. . Kelsen, therefore, does not contemplate an all

omnipotent President and Chief Martial Law Administrator sitting high above the society and

handing its behests downwards. No single man can give a constitution to the society which, in

one sense, is an agreement between the people to live together under an Order which will fulfill

their expectations, reflect their aspirations and hold promise for the realization of their selves. It

must, therefore, embody the will of the people which is usually expressed. Through the medium

of chosen representatives. It must be this type of constitution from which the norms of the new

legal order will derive their validity.

To conclude, it can be stated that the judgment of Asma Jilani’s cas was though

announced after the end of General Yahya Khan’s rule, yet it initially led to end of Bhuto’s

martial law and finally paved way for restoration of democracy and for adoption of constitution

of 1973. Another case which can be used to illustrate the effects of a revolution on the

Grundnorm is the case of State v Dosso. In 1958, General Ayub Khan took over power though a

military coup in Pakistan and abrogated the Constitution of 1956. When the coup was challenged

in courts, majority of the Supreme Court upheld Ayub Khan’s coup and takeover of power

explicitly relying on Kelsen’s theory. On the 7th October 1958, President Iskander Mirza

annulled the constitution of 1956, dismissed the Central and Provincial Legislatures, imposed

Martial Law and took over the entire administrative and legislative machinery. Immediately

thereafter Laws (Continuance in Force) Order 1958 was promulgated as a result of which laws,

other than the Constitution of 1956, which were in force before the assumption of authority by

Martial Law Administration, were validated and the jurisdiction of the Courts was restored.

The Supreme Court, headed by Chief Justice Mohammad Munir, held that since Article

5 of the late Constitution had disappeared from the new legal Order, the Frontier Crimes

Regulation 1901 by reason of Act IV of Laws (Continuance in Force) Order 1958 was still in

force and all proceedings in cases in which validity of that Regulation had been called in

question having abated, the convictions recorded and references made to the Council of Elders

were good. Where revolution is successful it satisfies the test of efficacy and becomes a basic

law creating fact. On that assumption the Laws (Continuance in Force) Order, however transitory

or imperfect, was a new legal order and it was in accordance with that order that the validity of

the laws and the correctness of judicial decisions had to be determined. The appeals were

accordingly disposed of.

Overall, in Kelsen’s General Theory of Law and State, he argues that a successful coup

d’état or revolution could create a new basic norm and therefore could be supported for a new

legal order. Once the revolution was shown to be efficacious in nullifying the old basic norm, it

had to be regarded as a la creating fact giving validity to a new legal order. The courts in Dosso’s

case contended that once a revolution was successful, it became a law creating fact on its own

and could not be longer judged in the light of the previous constitution. Justice Munir remarked

“A victorious revolution or a successful coup d’état is an internationally recognized legal method

of changing a Constitution.” At another point he remarked: “Where revolution is successful, it

satisfies the test of efficacy and becomes a basic law-creating fact.” In sum, the previous

constitution was not valid anymore because the system of legal norms decreed under that

constitution had ceased to be implemented on ground because it failed the test of efficacy.

Lastly, a revolution may have a significant impact on the grundnorm as demonstrated from the

cases in Pakistan. As long as an individual has power and determination, he can use violence to

drastically change the norms either for the better or for worse.