Pathology of judicial reparation

“The law is not dead, even if it has slept.” — William Shakespeare, Measure for Measure

There are times in the constitutional life of nations when Shakespeare’s warning begins to acquire contemporary significance. Moments when the majesty of law retreats into silence. The fall of the Western Roman Empire taught us one thing: institutions do not collapse spectacularly; they decompose quietly. Their buildings remain standing. Their ceremonies continue without interruption. Judges can still wear robes. Courtrooms can still function. Lists of causes can still circulate. Yet, somewhere beneath the pompous architecture of constitutionalism, the soul of justice quietly slips away. Pakistan seems to have entered such an unhappy period.

The question facing Pakistan today is no longer whether constitutional law exists textually. There is no doubt that the Constitution still survives in books, speeches, judicial oaths and ceremonies. The real question is whether the law is simply sleeping, as Shakespeare warned, or whether the prolonged silence of institutions is beginning to resemble something far more permanent.

There was a time when judicial measures in Pakistan had real constitutional significance. A litigant approached the courts, exercising his fundamental constitutional right of access to justice guaranteed by Article 9 of the Constitution, believing that a judgment would eventually arrive. Relief meant acquittal. Release meant bail. Reparation meant suspension of the sentence. Relief meant the restoration of rights illegally taken away by the state. Relief meant preventing the executive from any excess or abuse of power. The courts were seen as the ultimate legal check on the arbitrary, capricious, and unstructured exercise of discretion by the executive.

Nevertheless, in contemporary Pakistan, especially in politically sensitive litigation or cases affecting the interests of the deep state, the meaning of judicial redress has undergone a scandalous transformation. Future constitutional scholars may one day study this transformation as a distinct pathology of institutional decline. Relief no longer equates to success in litigation. It is no longer even a question of obtaining a favorable judicial decision. Increasingly, the relief means something small: that the case has finally been set for a hearing. And even such small grace often comes only after a prolonged and unceasing struggle. It is perhaps the most telling tragedy of the current legal moment: Pakistani citizens now rejoice in the simple possibility of being heard.

Article 10A of the Constitution of Pakistan guarantees the right to a fair trial. A fair trial does not mean simply filing a motion and waiting indefinitely in the halls of proceedings. Section 10A contemplates something much more substantial: a meaningful hearing, conducted fairly, followed by adjudication in accordance with law.

Resolving grievances in the form of a judicial declaration is now seen as a relief. But after the 26th and 27th amendments, Pakistan reduced even the first threshold of Article 10A to a constitutional battle. The point from which a fair trial begins, namely the hearing itself, has become inaccessible. Cases remain unresolved for weeks and months. Audiences disappear unexpectedly. Technical objections arise all the time. And when a politically sensitive case finally comes to court, citizens celebrate the fixation itself as if justice had already been done.

Judicial independence is demonstrated when courts consider politically important cases quickly, fearlessly, and fairly, even when powerful circles feel uncomfortable.

We are now witnessing scenes that would once have seemed absurd in any functioning legal order: political workers and lawyers gathering outside the Islamabad High Court, celebrating not an acquittal, nor a bail, nor a judgment, but simply the fact that the Imran Khan case has finally been set for hearing. This image alone illustrates the tragedy of judicial decline in Pakistan more forcefully than any constitutional commentary ever could.

Not so long ago, Pakistan’s judicial system, despite its inconsistencies, historical compromises and periodic capitulations to power, still retained a semblance of independence. There were judges who restrained arbitrary authority, challenged executive excesses, and reminded governments that constitutions were not ornamental documents written solely for ceremony. The justice system remains imperfect, but autonomous enough for citizens to believe that even powerful actors can be held accountable to the law. This fragile balance quickly deteriorated.

In recent years, and particularly after the passage of the 26th and 27th Constitutional Amendments, a growing perception has emerged throughout the country that the judiciary has ceased to function as an independent constitutional body and has increasingly become an extension of the executive structure itself. The consequences of these amendments cannot be measured solely through the constitutional text. Their real effects are visible in hesitant judicial behavior, selective urgency, procedural paralysis, and a growing reluctance of courts to hear politically sensitive cases with constitutional immediacy.

The appeal in the Al-Qadir University case became symbolic not only because of the individual involved, but also because of what the process itself revealed. The audiences seemed to disappear again. The matter was settled after an extraordinary delay. Procedural complications arose unexpectedly. The postponements multiplied endlessly. The weeks passed. The months passed. Imran Khan remained imprisoned while the process continued, wandering procedural corridors with no destination. The cases of Imam Mazari and Hadi Chatha reflect the same judicial pathology. There, too, litigation became trapped in procedural paralysis until even the scheduling of a hearing began to seem like a constitutional victory rather than an ordinary judicial function.

Little by little, we realize something deeply disturbing: there is a premeditated design behind all this misery. The objective behind the emergence of this judicial pathology is to ensure the maintenance of incarceration. Incarceration no longer depends solely on conviction. It depends more and more on the prevention of the judgment itself. It is an authoritarianism refined by procedure. Unlike older forms of state repression, modern constitutional review does not always require a visible suspension of rights. Rights may continue to exist formally. Petitions can continue to be filed. Courts may continue to operate in a ceremonial manner. There is no need to openly deny freedom if it can simply be postponed indefinitely by technical delay.

The brilliance of such a system lies precisely in its appearance of legality. Each postponement individually seems reasonable. Every postponement arrives wrapped in procedural language. Each delay has a technical justification. Yet collectively, these delays produce something deeply unconstitutional: punishment through the process itself.

The accused is no longer punished simply by a verdict. He is punished by uncertainty, exhaustion and endless procedural stifling. The process itself becomes the sentence. The litigant waits. The lawyer is waiting. The family is waiting. And somewhere between objections to the registry, unavailable benches, procedural formalities and inconsequential adjournments, time itself becomes punishment.

Perhaps the most alarming aspect of this crisis is that litigants increasingly need public pressure simply to obtain judicial movement. Lawyers organize demonstrations. Political workers gather outside courtrooms. Delegations meet with chief justices to request scheduling of cases. The protests are organized not to influence judicial outcomes, but simply to ensure that hearings take place.

In functioning constitutional systems, courts reduce political tensions because citizens trust the judicial process. In Pakistan, however, political pressure has become necessary simply to activate the legal process itself. Street marches, protests and unrest are now pushing courtrooms to function. When citizens begin to celebrate not the acquittal, nor the release on bail, nor the restoration of their rights, but simply the fact that a case has finally been set for hearing, one realizes that a disease has entered the blood of the judicial body itself.

So, the problem that Pakistan faces today is not only a question of judicial independence, but also a question of judicial pathology. A judiciary does not prove its independence by ruling on routine commercial disputes or ordinary civil disputes. Judicial independence is demonstrated when courts consider politically important cases quickly, fearlessly, and fairly, even when powerful circles feel uncomfortable. This is the true constitutional test.

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