This isn’t about the usual suspects. They have clearly decided they don’t want to be anywhere near sitting down on the chair when the music stops. Because it’s about to stop, largely due to their meddling and they know that this time, sitting on the chair comes with very little other than complete responsibility for having sunk the ship of state.

This is about a new judicial doctrine. The one that steps beyond necessity; and delivers what is necessary today. It borrows from the usual suspects.

Could the military ever have been successful in its unconstitutional power grabs if there were independent minds within it? Would it have retained so much power if, because of a disagreement, a corps commander somewhere decided to move a battalion towards the station of another commander he disagreed with? Could power ever have been usurped if the order of a chief would first be debated among underling generals before being carried out?

Of course not. It would expose the entire military structure as weak, even democratic. You can’t have more than one hand at the wheel or one cook at the pot. It is discipline that breeds power. Which is why any commentary on the recent actions of our august court that is premised in law, is inherently flawed. After all, we are at war. A war being fought for the salvation of the nation’s very soul. A necessary war.

Read more: Top court’s order on a law that has yet to be enacted — a categorical statement? Legal eagles weigh in

It is also why decisions such as the one about the Supreme Court (Practice and Procedure) Bill 2023 should be viewed within the prism of martial doctrines.

Sabre rattling

The best doctrine that comes to mind is what was pitched to the civilians of our poor country when the case for acquiring nukes was made — we will never use them, but we must have them to show that we can use them. The strategy is called sabre rattling.

I was taught this by a very irate naval officer who called to tell me off after I did a TV show many years ago, questioning the need to spend billions of dollars on missiles and planes. This was back when doing such shows attracted only a call from what sounded like a very red-faced officer and didn’t yet involve permanent joblessness and free travel to the northern areas. The strategy basically requires that you wield a very big stick, but not use it. Until you absolutely have to.

This is the reasoning of the court in declaring preemptively that whenever this procedures bill was to become law, it would have no effect whatsoever. The court saw it as a threat to its independence and firstly rattled its sabres by forming the bench; and when the Parliament was unflinching on funding the elections issue, it pressed the nuke button.

Because it absolutely had to, as the government is not obeying a clear constitutional requirement to hold elections. Because its mandate is stale. Because they’re a bunch of thieves and ruffians in the way of the people’s champion. Because it’s about egos that fail to see that unity on this issue was so easily achievable if simple procedure had been followed. But that is all water under the bridge now.

Judicial chaos

The court is enforcing the primary imperative from which a disciplined force draws power: the unity of command. Taught to us by every successive glamoriser of public servants in uniform, it is what makes armies great. You cannot have plural nodes of leadership, because that is a cause for dissent in the ranks.

We have then our last chief justice in the honourable Umar Ata Bandial, and perhaps our first chief of judicial staff. He has under him a few operators who could be fit for the title of chiefs of judicial intelligence and seem to be treading dangerously close to the path of conventional chiefs, who draw power from their ability to coerce rather than from the legitimacy of their methods.

When it comes time for the chief to pass the gavel of power, it will be interesting to see that novel process unfold. Perhaps one day it will come to pass, after they have consolidated their martial power, that one of these chiefs will consider giving themselves an extension?

Senior lawyers have written of there being judicial chaos and it being part of the polycrisis leading to the systemic failure of our state. But judicial chaos is merely the symptom. It is a necessary sacrifice given as the institution assembles into a new order.

Having already delved into the Orwellian realm of policing thought crime — by adjudicating on the potential abuse of the SC procedures bill — the fitting natural evolution is hence towards the critical amendment in the constitution of Animal Farm: all judges are equal, but some judges are more equal than others.