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
This idea is not foreign to Pakistani jurisprudence. Our courts have long recognised that the Constitution has salient features so integral to its identity that the power to amend cannot be read as a power to destroy them, and in developing that reasoning, they have also drawn guidance from the Indian Supreme Court’s basic structure jurisprudence in Kesavananda Bharati v. State of Kerala. The power to amend, on this understanding, is not the power to abolish.
The 26th and 27th Amendments must be read against this background.
The 26th Amendment alters the Judicial Commission to increase executive influence over judicial appointments. It gives the executive the power to transfer High Court judges without their consent. The 27th Amendment restructures the superior judiciary: it creates a Federal Constitutional Court to handle matters previously within the Supreme Court’s jurisdiction and extends certain immunities and privileges attached to high constitutional offices. The concern this raises is not about any individual or office-holder. It is a concern of principle: whether the constitutional text itself can draw distinctions in answerability to the law without unsettling the equality on which the founding compact rests.
The procedural argument for both amendments is familiar: a supermajority voted for them. But this is precisely the argument the Nuremberg Tribunal rejected — not in the context of constitutional amendments, obviously, but in the deeper and more important sense that procedural compliance does not, by itself, establish lawfulness. The men tried at Nuremberg had followed orders issued through a properly constituted authority. The Tribunal held that this did not matter when the orders themselves were manifestly contrary to foundational law. The principle has since been absorbed into international law, into the Rome Statute, and into the constitutional doctrine of states that have taken the question seriously. Pakistan’s courts, in their engagement with the basic structure doctrine, have taken the question seriously.
What the basic structure doctrine does is give constitutional expression to the same intuition that underlies the Nuremberg principle: that there is a law above the law of the moment, and that the institutions charged with applying it cannot simply defer to whoever holds the amending power at a given time. Article 2A places the Objectives Resolution at the apex of Pakistan’s constitutional hierarchy for exactly this reason. 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.
Consider what judicial independence means in this framework. It does not exist as a professional courtesy to judges. It exists because Jinnah’s equal citizen, the person who can go to court against the State and receive a fair hearing, cannot receive that hearing from a judge who knows that an adverse ruling may be followed by a punitive transfer or a reshaped commission. The power to transfer without consent, and the concentration of appointment authority in executive-influenced processes do not eliminate judicial independence through a single visible act. They eliminate it through the accumulated weight of institutional caution, the quiet professional understanding, never stated and never needing to be, that independence has a price.
The immunity provisions raise the same foundational concern, expressed more directly. Jinnah’s 11 August speech spoke of corruption and nepotism with genuine urgency precisely because he understood that a State in which exemption from the law is written into its basic design is not a constitutional State, it is a State in which the constitutional text is used to formalise privilege. The Nuremberg principle addressed this from a different angle: it held that the State’s authority cannot be used to shield the person exercising it. An immunity provision embedded in the Constitution does not merely grant a legal benefit. It alters the relationship between office and law and, in doing so, it sits uneasily with both the Objectives Resolution and the foundational compact Jinnah articulated before the Constitution he helped bring into being had even been written.
Nuremberg asked whether institutions, when tested, would hold that line. Pakistan is, in its own way and on its own terms, being asked the same question now
The Nuremberg trials are remembered primarily as a reckoning with the worst crimes of the twentieth century, and rightly so. But their constitutional significance is quieter and more durable. The Tribunal established that institutional legitimacy, the fact of holding office, the fact of following procedure, and the fact of acting under authority do not exhaust the question of lawfulness. The question of whether the authority itself was exercised within its proper limits remains, and it remains regardless of how many people voted for it or how correct the paperwork.
That is the question the 26th and 27th Amendments pose. They were passed through Parliament. They bear the formal marks of constitutional validity. But Pakistani constitutional law, as developed by Pakistani courts applying Pakistani doctrine, holds that some things cannot be constitutionally amended away — and that the courts exist precisely to say so when the moment demands it. The Objectives Resolution is not a preamble. It is Article 2A. The basic structure doctrine is no stranger to Pakistani law; our courts have engaged with it in their own jurisprudence, on Pakistan’s own constitutional terms. And the 11 August speech is not a historical curiosity. It is the founding statement of what this country was meant to be.
There is a harder question beneath all of this, and it deserves to be named plainly. The Federal Constitutional Court is itself a creature of the 27th Amendment. Judges transferred to the superior courts under the new transfer mechanism owe their present positions, at least in part, to the same legislative act whose validity stands in question. Can a court — or judges — who are beneficiaries of the very amendments being challenged adjudicate those amendments impartially?
The question is not rhetorical; it is an acute institutional dilemma. But it does not dissolve into an answer of judicial incapacity. Courts derive their authority not from the particular amendment that restructured them, but from the constitutional order as a whole — the 1973 Constitution read through the Objectives Resolution, which exists before and above any single amendment. The Grundnorm, to use Kelsen’s term, is not the 27th Amendment. Individual judges whose positions are directly traceable to the impugned provisions carry a separate obligation of recusal.
The institution, however, cannot recuse itself from its own jurisdiction. There is no other forum competent to decide. And that is precisely where the moral weight falls: a judge who owes his seat to the 27th Amendment and yet applies the basic structure doctrine to it would be doing something genuinely rare — placing constitutional obligation above personal interest. Pakistani judicial history does not offer much comfort on this point. The most prominent example runs the other way: a Chief Justice who took oath under a military PCO, whose court validated that order, and who later adopted a more assertive posture not because constitutional obligation demanded it in the abstract, but because political circumstances made it possible.
That is not a judge choosing principle over interest; that is a judge responding to changed political circumstances. Whether the courts can do something harder — act against their own institutional interest, in the absence of external political pressure at their backs — is a question Pakistani constitutional history has not yet answered.
Whether those standards will be applied to these amendments is a question the courts must answer. The Constitution’s own language on constitutional subversion is unambiguous, and that language does not confine itself to acts of force. Where lawful amendment ends and subversion begins is not a line anyone can draw in the present tense; it is a verdict that only history, reading these years from a distance, will be in a position to render. History, however, is not a patient observer.
It has a long memory for how such questions were resolved, and for whether those who resolved them in courtrooms, in chambers, and in the institutions built to outlast any particular government proved equal to what was asked of them. Jinnah asked for a country in which the law was supreme, and every citizen was equal before it. Nuremberg asked whether institutions, when tested, would hold that line. Pakistan is, in its own way and on its own terms, being asked the same question now.