PAKISTAN runs through constitutional crises with such frequency that they often seem to blur into one. But they all have one thing in common: a shared foundation upon which every subsequent dilemma piles up. Unassuming yet ever-present, this one system has caused irreparable harm, and yet gone overwhelmingly unquestioned.

I’ll explain; imagine that you and 16 of your friends regularly go out for dinner. (In this hypothetical scenario, you’re a social butterfly). You’ve got a nice little group-chat you all stay in touch with, and you need to pick where to go. Everyone has different preferences, so, naturally, you ask them.

The next step is easy — you follow the majority. But what if you all go out so often that you can’t possibly ask all 17 every single time? Well, your friends figure it would be helpful to pick one person to sort it out. You agree it should be the eldest, and he or she should be a figurehead of the group too. A Chief Friend, if you will.

From then on, every time the group is going out, the Chief Friend makes a separate group-chat to pick where to go. Sometimes it’s a three-member chat, sometimes five, and on important occasions, even a full-group. This works well for the most part. Occasionally, you all land at weird destinations with cuisines that only a minority is into. But you trust the Chief; it solves a logistical problem, and some friends even hope to take his place one day, so they don’t object.

The ‘one-man show’ must end.

Your group is quite fluid. People come and go, and, one day, a new Chief Friend arrives who decides he doesn’t want to go out for dinner at all. He’d like to build a dam instead. He assembles a small group-chat that decides that actually, the definition of ‘dinner’ is flexible, and they can ‘read in’ the inclusion of other fun activities they’d prefer doing, like bossing people around and conspiring to overthrow the government.

(It’s no big deal because they’ve done it before and some German philosopher said it’s ok). You find this quite strange, but rules are rules, and the Chief Friend can do what he wants.

But things don’t end there. Gradually, every new Chief Friend realises that with the right group-chat, he can accomplish anything. And night after night, you end up at his favourite places. Those with tastes furthest from his own, he can exclude from every decision for years on end. Those closer, he can reward, and utilise to expand his own power.

Before you know it, you’re driving to every destination except the ones you’re supposed to. You look back and realise that over the years, your fun little group has gotten blood on its hands, and committed some unspeakable wrongs. Also, while you all were distracted, 50,000 pending dinners piled up that you have no idea how you’re ever going to get through.

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What do you do in a situation like this? Is there any stretch of the imagination where you don’t point out the obvious — that it was a bad idea to let one person make decisions this way? That you’d all be out of your minds to let it continue?

Now, consider if it wasn’t just 17 decision-makers being dragged along at the whims of an unelected minority, but a nation of 220 million. Consider if it wasn’t dinners, but permanent legal interpretations you were reaching. And consider if the fate of the country depended on those decisions carrying legitimacy in the eyes of the public.

That’s the current state of our judiciary, and how it forms benches. But this isn’t a critique of that judiciary. See, it’s no longer just recalcitrant columnists like myself questioning the consolidation of limitless power in one office. The SC itself has acknowledged that the ‘one-man show’ must come to an end, and ‘imbalance’ must be corrected.

There’s no doubt that vesting unchecked discretion to compose benches in the office of Chief Justice is an insult to the Pakistani people’s intelligence.

The apex court enjoys the same degree of reckless unaccountability that it would strike down in any government department it laid eyes on. So, how long will we continue ignoring the obvious, and delay the imposition of a fixed criteria?

In her 2021 column, ‘Allocation of cases’, Reema Omer unpacked the international precedents that underscore this need. From India to Hungary, judiciaries have acted to curtail arbitrariness in fixation. Why, then, should we shy away from common-sense reform?

Whether corrected by parliament or the courts is secondary. Recognising the absurdity at the heart of the status quo comes first. Not as an attack on an individual, but the acknowledgment of a principle that applies to every temporary occupant in seats of power. That they aren’t above law.

It’s long overdue that imbalance was corrected. Until it is, we are all helpless passengers, staring out the window on the way to dinner, wondering which cliff our dear friends will drive us off next.

The writer is a lawyer.

Twitter: @hkwattoo1

Published in Dawn, April 20th, 2023