Law and order are not in crisis in Pakistan; it is in collapse. We may talk ourselves out of it, make statements and resolutions, and attend seminars, but our facts will not be moulded to our convenience. This is the basis of a country with approximately 240 million citizens whose judgment is overlooked, trials postponed until evidence has long decayed, and laws applied selectively to those who happen to be docked. This cannot be a technical issue; it is an existential issue. States thrive when citizens are convinced that law can be objective, impersonal, and enforceable. When that belief dies, they disintegrate.

Delay is employed as a strategy, not a mistake.

The legal fraternity of Pakistan well recognises this. We do not just passively observe. The 2.3 million backlogged cases in the courts are not mere figures and are a source of failure among the various institutions. Civil litigation can last ten or more years, while criminal trials often exceed the lifespan of witnesses, and appeal backlogs resemble infected wounds. The system is not slow because it is working at capacity; it is slow because it has to work in a culture where delay is employed as a strategy, not a mistake, and where consequences to violating the rules are next to non-existent.

The global ruling is equally unfavourable. According to the World Justice Project, Pakistan ranks among the last places in the world in terms of the rule of law environment, following more resourceful and more volatile countries. Before they read our pitches, investors/ partners see these rankings. They realise that contracts may not be enforced in Pakistan and that landowners can have their rights disputed forever, and that procedural sleights of hand may overturn regulatory decisions. They need not read our Constitution to get the reality–they can check our case records.

The judgments given by our superior courts over the past 10 years should have been turning points. The Supreme Court in 2017 ruled that judicial orders were not to be implemented at will. In 2019, it endorsed that executive disobedience to the orders of the court is at the core of constitutional governance. In 2015, it ruled against frivolous litigation as a hindrance to justice. And in the courts of this land, even these are considered as lofty figures of speech. Commands are refused, obedience is rendered at its own sweet will, and adjournments are granted upon the pretest of the most captain-like flimsy pretence which the casual novice clerk would blush at uttering.

Once citizens believe the courts cannot provide justice, they will resort to parallel systems.

The reality is awkward and straightforward: the profession has ended up naturalising behaviour that in every adequate jurisdiction would justify reproach. We have tolerated litigants who have been permitted to file cases and attend hearings as a casual check-in. We have tolerated political involvement in the appointment of judges and prosecutorial options. We have defended colleagues who exploit loopholes in the processes rather than addressing them. We have created a system whereby the strong and the connected can purchase time until justice no longer matters.

The price of this rotten goes beyond the court. It influences the economy, government, and national security. Once the state ceases being a credible protector of contracts, the trade grinds to a halt and investment dries up. Entrepreneurs would be reluctant to invest when they are unable to protect their property rights. Failure to mete out its judgments sends out the message to its allies as well as its competitors that the commitments are negotiable. The Reko Diq arbitration was not an isolated incident, but rather a reflection of systemic legal failures that resulted in a penalty of US $6.3 billion (including legal costs). This amount surpasses our national health budget, and we ended up paying a settlement of US$1.3 billion to avoid addressing the underlying issues within our legal processes.

In such a setting, there is no exaggeration in stating that the rule of law is the singular viable option to the survival of Pakistan as a singular entity and emergence as a regional power. There is no way we can compete with our neighbours in terms of economic wealth or military force before earning a reputation for a jurisdiction where the law is consistent and enforced. Rhetoric and raw power do not lead to gaining regional influence. It rests on the perception that agreements signed with Pakistan will be honoured, as our courts will ensure their implementation.

The question arises whether the profession is ready to change, and the Bar and Bench are equally to blame. Collegial loyalty has been the cloak used by the Bar to excuse malpractice and lateness. The Bench has declined to exercise its procedural authority decisively, as dictated by the crisis at hand. The two have opposed openness that would disclose where and why delays are happening. In some other career, this magnitude of failure would call for emergency transformation. In ours, it initiates more speeches.

Failure leads to failure of everything.

Instances are not in short supply where other countries have reversed judicial decline. Rwanda reconstituted its judiciary, which had been reduced to a shadow organisation, by emphasising speed, access, and openness. Singapore ensured that its courts were synonymous with fast, clean dispute resolution, making it an international centre. Neither of them started with the advantages that Pakistan has: a written constitution, an independent Bar, and a long-established tradition of the legal process. It was the will, which they possessed, and which we have not applied the law equally to all.

To Pakistan, it is practical going forward. The rule of law can only be absolute through five reforms. That is, adjournments should be strongly discouraged and only scheduled in unavoidable circumstances. They should not be frequent. Penalties should be imposed on any delay that does not have a legitimate reason. Second, merit-based and free of any political interference, appointments should be made to all the judicial and prosecutorial posts.

Third, there should be automatic enforcement of court orders with special units in each High Court to enforce the order without any new litigation. Fourth, it is necessary to ensure that one’s professional skills are updated through compulsory continuing education, which is attached to appointment and practice. Fifth, the statistics of each court are to be open to the public as to its rate of cases disposed, backlogs, and average durations. None of these steps is a novel concept; it is what is required to be faithful.

The profession might fight such changes as they will reduce life comforts. However, the other is worse. Once citizens believe the courts either can or will not provide justice, they will resort to parallel systems of justice, jirgas, panchayats, and even individual enforcement, which is beyond the Constitution. As soon as those systems are being institutionalised, no judicial rhetoric will be able to regain the masses. But overnight authority of the courts does not plant itself again, and when it is lost, there is no likelihood of regaining it during our lifetime.

The next few years will see Pakistan tested like never before. Institutions that are used at their best will be required through economic pressure, political instability, and regional competition. The law cannot be taken as one institution among others. It is the structure that enables the capabilities of the rest. Failure leads to failure of everything.

To stand in a neutral position is impossible anymore. A biased judge ignores the law. Supporting the rights of a lawyer who has used delaying tactics to obstruct justice is not a defence of rights. Any vocation that has come to terms with the alienation of its jurisdiction is no longer a vocation; it is a eunuch.

The law cannot be taken as one institution among others, it enables the rest.

The time is fast approaching when the decision will no longer be in our hands. We will have the rule of law again, either because all of us are determined to have it, or because events over which we shall have little or no control deprive us all of everything and make us less. Pakistan will not be saved by the law per se, but the judges and lawyers serving it will, or they won’t. And the nation will be left in the lurch. History will pass its judgment. The point is, by the time it is announced, we will not be on the Bench or Bar.

Disclaimer: The opinions expressed in this article are solely those of the author. They do not represent the views, beliefs, or policies of the Stratheia.