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Court Within a Court

The “Constitutional Benches,” notionally more empowered than other Supreme Court benches, lack security of tenure, which is essential for judicial independence and the rule of law

By Shehzad A. Elahi | November 2025

The Constitution (Twenty-Sixth Amendment) Act, 2024, enacted by Parliament in October 2024, is currently under challenge before the Supreme Court of Pakistan on grounds of being “ultra vires” the “basic structure” of the Constitution. Since its promulgation, the Twenty-Sixth Amendment has been the subject of much criticism, foremost among which is the contention that it erodes judicial independence. Events leading up to its promulgation, the secrecy surrounding its various drafts, and the dubious manner in which votes of floor-crossing Parliamentarians were counted have only added to the controversy. Much of the ire has been directed at the newly inserted Article 191A, which introduces the concept of “Constitutional Benches” of the Supreme Court

Under Article 191A, “Constitutional Benches” shall be constituted “comprising such Judges of the Supreme Court and for such term as may be nominated and determined by the Judicial Commission of Pakistan from time to time”. No bench of the Supreme Court other than a “Constitutional Bench” can now exercise the original jurisdiction of the Supreme Court under Article 184, appellate jurisdiction of the Supreme Court under clause (3) of Article 185 where a judgment or order of a High Court involves constitutionality of any law or a substantial question of law as to the interpretation of the Constitution, and advisory jurisdiction of the Supreme Court under Article 186. The practice and procedure of the Constitutional Benches is to be determined by its own judges. Rather confusingly, the “Constitutional Benches” are to have further “Benches” comprising at least five judges, to be nominated by a committee comprising the three most senior Judges of the Constitutional Benches.

The Supreme Court of Pakistan, as well as the five High Courts, have always been regarded as “constitutional courts,” since they have been created under the Constitution itself (see Articles 175, 176, and 192). By contrast, the “other courts” are to be “established by law” and hence operate on the non-constitutional plane. When Article 191A purports to create “Constitutional Benches” within the Supreme Court, it thus appears, at first glance, to be a confusing – and perhaps even objectionable – redundancy. Is this merely bad drafting, a lack of understanding, or both? Closer scrutiny, however, reveals a much more alarming and insidious truth.

Ordinarily, while hearing cases, the Supreme Court of Pakistan sits in benches of two or three judges. At times, larger benches are also formed to hear complex cases or revisit judgments of earlier, smaller strength benches. In the most important cases, sometimes the Full Court sits as a whole to hear the matter. The Constitution did not include a specific reference to “benches” of the Supreme Court, save for the Shariat Appellate Bench of the Supreme Court, which hears appeals from the Federal Shariat Court. The concept of “benches” is instead found in the Rules framed from time to time by the Supreme Court to regulate its practice and procedure under Article 191. The jurisdiction of benches is also spelt out in the Rules. The Chief Justice of Pakistan was empowered under the Rules to create two and three-member benches and, if required, larger benches as well. Hence, he was often referred to as “Master of Roster,” a common law term indicating his power to set up benches and allocate cases. This designation also found affirmation in a recent decision of the Supreme Court in Suo Motu Case No.4 of 2021. The term “Full Court” does not find any specific mention in either the Constitution or the Rules – it is generally considered a constitutional convention. In Asad Ali’s case (1998), the Supreme Court clarified that the term “Full Court” did not necessarily mean all the Judges of the Supreme Court – exclusion of Judges who had a personal interest in a case or otherwise recused themselves meant that the remaining Judges hearing the case would be considered the Full Court.


Through the Supreme Court (Practice and Procedure) Act, 2023, Parliament sought to overhaul the above historical practice and procedure of the Supreme Court and supersede the Supreme Court Rules. While initially suspended by the Supreme Court when it was still a Bill, the Practice and Procedure Act was eventually revived and validated by a Full Court under Chief Justice Qazi Faez Isa in September 2023. Per the Practice and Procedure Act, the constitution of benches of the Supreme Court was now to be done by a Committee comprising the Chief Justice and the next two senior judges of the Supreme Court. The same Committee was empowered to decide whether, in any given case, the Supreme Court would exercise its original constitutional jurisdiction under Article 184 (3) – commonly also known as the “suo moto” jurisdiction – for the enforcement of fundamental rights in matters of public importance. Earlier, the judgment in Suo Motu Case No.4 of 2021 had held that this power was also solely reserved for the Chief Justice. Hence, after the Practice and Procedure Act, for all intents and purposes, the Chief Justice was no longer “Master of the Roster” as this role was now given to the Committee. A right of appeal was also retrospectively provided against orders under Article 184 (3).

In matters involving the interpretation of Constitutional provisions, the Committee would constitute a bench comprising at least five judges of the Supreme Court. This was obviously modeled on Article 145 (3) of the Indian Constitution, under which it is a constitutional requirement that benches comprising not less than five judges of the Indian Supreme Court should hear cases “involving a substantial question of law as to the interpretation of” the Constitution. Interestingly, in India, the benches constituted in compliance with Article 145 (3) of the Indian Constitution are commonly referred to as “constitutional benches”. However, no such nomenclature is found in the Indian Constitution itself.

The Practice and Procedure Act severely curtailed the power and influence of the Chief Justice. It nullified the earlier Supreme Court judgment in Suo Motu Case No.4 of 2021 and introduced more transparency and collegiality in the Supreme Court. A Full Court of the Supreme Court, while hearing challenges to the constitutionality of the Practice and Procedure Act, upheld it as valid law (save for the retrospective appeal, which was struck down). The majority judgment, authored by Chief Justice Qazi Faez Isa, welcomed the legislative intervention with these laudatory words: “We have very carefully considered each and every provision of the Act, and are of the view that it has facilitated access to justice, instilled transparency, made the realization of Fundamental Rights more effective, and the Supreme Court more independent. The office of the Chief Justice has also been strengthened, as there is an element of continuity when consultation takes place with the two most senior Judges. The measures taken in the Act ensure judicial independence, and the Supreme Court has been made to better serve the people…”. In fact, many of the perceived judicial ills and excesses of the past, such as misuse of suo moto jurisdictions and allegations of partisanship and bias in the constitution of Supreme Court benches, now stand redressed by Parliament. This redressal was received with grace and institutional respect by the Supreme Court itself. In this backdrop, what then was the need for Article 191A?

The simple answer is: none. If the Supreme Court had struck down the Practice and Procedure Act, then Article 191A might have seemed less contrived. However, as matters stand, most justifications offered in its support ring hollow. The “Constitutional Benches” are, in substance, a court within a court. Their composition and tenure lie at the whims of the reconstituted Judicial Commission of Pakistan, the majority of whose members are non-judges. No criteria have been provided for the inclusion or removal of Judges from the Constitutional Benches. No reason is required to be given either. A simple vote count is enough. Hence, while notionally more empowered than other benches of the Supreme Court, these “Constitutional Benches” lack security of tenure, without which there can neither be judicial independence nor rule of law.

Thus, while hiding behind the innocuous nomenclature of “Benches”, Article 191A effectively establishes a new “Constitutional Court” – through the back door and without any guardrails and safeguards essential for such a forum in a modern Constitutional Democracy. The subterfuge lacks subtlety and is easily exposed. Article 191A, therefore, stands as a direct, albeit thinly-veiled, attack on judicial independence. Ironically, at the time of writing, an eight-member Bench of the Constitutional Bench is deliberating, in essence, its own constitutionality. One only hopes they will be able to see the forest, and not just the trees.

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