Which judicial commission?

The proceedings before the Supreme Court in the Twenty-Sixth Amendment case have revived a crucial constitutional question regarding the creation of "Constitutional Benches" under Article 191A. Yet amid the extensive debate, a central textual issue has been overlooked — the absence of a proper machinery provision that would allow Article 191A to operate effectively.

Article 175A of the Constitution provides the framework for a Judicial Commission of Pakistan responsible for appointments to the superior judiciary. The provision is elaborate and deliberate. Sub-article (2) establishes a Commission for the appointment of judges to the Supreme Court; sub-article (5) for the Provincial High Courts; sub-article (6) for the Islamabad High Court; sub-article (7) for the Federal Shariat Court; and sub-article (18) entrusts the Commission under sub-article (2) with conducting annual performance evaluations of the judges of the High Courts. Read together, these clauses demonstrate that the Constitution does not envisage a single, overarching "Judicial Commission of Pakistan", but rather distinct Judicial Commissions constituted with specific powers and functions spelt-out in different articles/sub-articles.

When we turn to Article 202A — inserted through the Twenty-Sixth Amendment alongside Article 191A — the distinction becomes apparent. Article 202A provides that the constitution of Constitutional Benches in the High Courts shall be determined by the Commission constituted under sub-article (5) of article 175A. This creates a clear and coherent machinery link: the Judicial Commission responsible for appointments to the High Courts, as constituted under sub-article (5) of Article 175A, is identified as the body empowered to nominate the Constitutional Benches in the High Courts. The provision therefore stands on a defined procedural footing.

By contrast, Article 191A, which deals with the Constitutional Benches of the Supreme Court, provides that these shall consist of such judges of the Supreme Court "as may be nominated and determined by the Judicial Commission of Pakistan". The problem is that no such singular, overarching body called the Judicial Commission of Pakistan exists in practice.

The generic Judicial Commission of Pakistan Sub-article (1) generically constitutes a Judicial Commission of Pakistan but is incomplete in terms of composition of the said Commission and must be read in conjunction with sub-articles (2), (5), (6) and (7). At the moment the Constitutional Benches of the Supreme Court of Pakistan are being nominated by the Judicial Commission constituted under sub-article (2) of art 175. However, this Judicial Commission is only for appointment of Judges of the Supreme Court and annual performance evaluation of High Court judges. It is not a continuing institutional entity empowered to constitute Constitutional Benches.

This textual inconsistency has created what may fairly be described as a machinery gap. While Article 202A expressly anchors its process in a defined constitutional mechanism, Article 191A relies on a reference to a body that the Constitution, as framed, does not establish. In constitutional interpretation, provisions that create a right or power without specifying the mechanism for their exercise are considered non-self-executing. As recognised in cases such as Mubashar Hasan, such provisions remain dormant until enabling legislation or interpretive rules — or a judicial "reading-in" — are put in place to make them operative.

The legislative intent behind Article 175A is clear: the process of judicial appointments and related functions is to be decentralised, with each superior court having its own defined Commission. Article 191A, however, assumes the existence of a singular "Judicial Commission of Pakistan" capable of nominating and determining benches for the Supreme Court, even though no such composite body exists in the constitutional scheme.

Unless Parliament or the Supreme Court, through interpretation, clarifies the machinery by which Constitutional Benches of the Supreme Court are to be constituted, Article 191A will remain textually valid but operationally uncertain. Article 202A, on the other hand, rests on firmer constitutional ground because it refers to an existing Commission under sub-article (5) of Article 175A. The contrast underscores a drafting anomaly that Parliament may eventually need to address.

In sum, the Twenty-Sixth Amendment has created a new constitutional structure without fully defining its procedural spine. Article 191A, as presently worded, presupposes a Judicial Commission that the Constitution does not formally create. Until that gap is filled, the provision risks remaining an elegant idea on paper — one that awaits a functioning constitutional mechanism to bring it to life.