On the morning of 11 August 1947, three days before the country he had spent his life building would come into existence, Muhammad Ali Jinnah stood before Pakistan’s first Constituent Assembly and said something that has never fully settled into the national consciousness. He said that religion, caste, and creed had nothing to do with the business of the State. He said every citizen was equal. He said his guiding principle would be justice and complete impartiality. He was not making a speech. He was, with the precision of a barrister who understood exactly what words cost, laying down the constitutional contract of a new republic.

What is less often noted is that this contract contained, in essence, the same principle that an international tribunal was simultaneously working to articulate in Nuremberg. The trials of 1945 and 1946 established something that legal systems across the world had long assumed but rarely stated so plainly: that no person stands above the law, that manifest illegality cannot be laundered through the authority of the person who ordered it, and that the machinery of the State however formally constituted cannot be used to exempt those who operate it from ordinary legal and moral accountability. Jinnah did not need to reference Nuremberg. He was saying the same thing in his own language, for his own country, on 11 August.

These two threads, Jinnah’s founding address and the Nuremberg principle, are not separate ideas placed conveniently alongside each other. They are the same idea expressed in different registers. One is the constitutional vision of a founder; the other is the historical verdict of a tribunal. Both arrive at the same place: a State in which the law applies to everyone, in which authority derives from the constitutional compact rather than from the person exercising it, and in which no procedure, however formally correct, can be used to achieve ends that the foundational law prohibits.

Pakistan’s Constitution of 1973 gave this vision legal form. The Objectives Resolution passed by the Constituent Assembly in 1949, and made a substantive operative provision of the Constitution as Article 2A through the Eighth Amendment, declares that authority shall be exercised within the limits prescribed by the Constitution, and that the principles of democracy, freedom, equality, and social justice shall be fully observed.

Jinnah’s 11 August speech, though not a textual provision of the Constitution, describes the founding compact from which the Objectives Resolution derives its moral authority — and from which the basic structure doctrine derives its democratic legitimacy

Jinnah’s 11 August speech, though not a textual provision of the Constitution, describes the founding compact from which the Objectives Resolution derives its moral authority — and from which the basic structure doctrine derives its democratic legitimacy

This idea is not foreign to Pakistani jurisprudence. Our courts have long recognised that........

© The Friday Times