In the name of Allah, the Most Merciful, the Most Compassionate. Our beloved Pakistan stands at a crossroads of destiny. The Law and Justice Commission of Pakistan, under the leadership of the Chief Justice, has proposed a new 'International Commercial Court of Pakistan' through a constitutional amendment. The ambition is noble, the vision is grand. Yet, as a humble servant of this nation who has spent a lifetime in the service of law, I must speak the truth with the clarity of the morning azan: this court, as proposed, cannot take flight. It will not fail for lack of marble or the elegance of its rules, but for three profound reasons that lie beneath its foundation.
Trust is the Foundation of All Justice
A court's power does not descend from the ink of a statute, but from the Iman, the trust, of those who seek its shelter. It is the unshakeable belief that its judges are as independent as the mountains of Khyber and that its outcomes cannot be purchased by the powerful. This sacred trust has been wounded. The 26th Amendment of 2024 and the 27th Amendment of 2025 have shaken the very pillars of our judicial system. The world watches, and the foreign investor, like a wary traveller, senses this instability long before our own citizens. He seeks a neutral, swift forum; today, we offer him neither the neutrality of the righteous nor the swiftness of the decisive.
A court draws its power not from the statute that creates it but from the confidence of those who use it.
Look to the Gulf monarchies, our brothers in faith. Dubai, Abu Dhabi, and Qatar have walled their commercial courts off from local interference, inviting eminent judges from the common-law world. If absolute monarchies can guarantee such independence, why does our republic, blessed with the spirit of democracy, hesitate? The cure for a court that strays is not capture, but reform. Accountability, transparency, and openness are the weapons of the just. We cannot amend our way to credibility, least of all when amendment itself has caused the damage.
The Archaic Law of a Colonial Past
When parties agree to arbitrate, they choose a legal system to guide them. Choose London, Singapore, or Dubai, and you choose a modern, arbitration-friendly regime. Choose Pakistan, and you are bound by the Arbitration Act of 1940, a relic of the colonial era, enacted before the light of independence dawned upon us. Under this archaic law, an award is not final until a court makes it a 'rule of the court', which it may modify, remit, or set aside. Arbitration becomes litigation wrapped in chains, slower and costlier than the very lawsuit it was meant to replace.
The remedy already exists, a gift prepared by the hands of our own scholars. In April 2023, the then Chief Justice constituted an Arbitration Law Review Committee, which I had the honour to chair. Within a year, we produced a complete draft, the Arbitration Act, 2024, modelled on the UNCITRAL Model Law. On May 2, 2024, we handed it to the Federal Minister for Law and Justice, urging its enactment. Two years have passed, and it gathers dust while we live under the shadow of 1940. Meanwhile, the world has moved. Rwanda modernised its law in 2008, joined the New York Convention, and climbed the rankings. Nigeria and Mauritius did likewise. They understood that the foundation must be laid before anything is built upon it.
A Lesson from Our Own Failure
We need not imagine what happens when we build on a wrong foundation, for we have already done it. In 2023, the government created the Trade Dispute Resolution Commission, well-funded and well-housed, yet it has produced next to nothing. Its own statute chains its arbitrations to the 1940 Act, and its autonomy was folded into the Ministry of Commerce. There is even grave doubt whether it is constitutional at all, for it exercises judicial power as an executive-controlled body, without the independence Article 175(3) demands. The new International Mediation and Arbitration Centre is no different, signboards that have decided nothing of consequence. Budgets, buildings, and hollow announcements do not make a forum; an independent ecosystem does. An international commercial court added to this landscape would be a third empty vessel, costlier than the first two and of no use.
The Order of Repair
The order of repair is everything. There are two tasks, not of equal rank. The first and fundamental is the legitimacy of the courts; the second is the arbitration law. Put legitimacy right, and the reform finally works. Pass that reform, or raise a gleaming new court, into a system the world distrusts, and you will have modernised a forum no one will enter. Restore the Supreme Court to its place; disband the constitutional court a common-law country does not need; enact the Arbitration Act, 2024; and protect judicial independence rather than buying it. Neutrality and the rule of law are not the ornaments of a democracy; they are its engine, the reason capital feels safe, and the shield of our sovereignty.
Until legitimacy is regained, the International Commercial Court will not fly. Let us first get our foundations right. Let us not fool ourselves. Let us rebuild with the faith of our forefathers, the strength of our mountains, and the purity of our rivers. Insha'Allah, we shall prevail.
The writer is a former senior puisne judge of the Supreme Court of Pakistan. He is currently the Distinguished Chair in Constitutionalism & Justice and Professor of Practice at the Shaikh Ahmad Hassan School of Law, LUMS, Lahore.
