Bench-formation Power Returns to the Chief Justice: Pakistan's Federal Constitutional Court and Its New Rulebook

In its 2026 Practice and Procedure Rules, Pakistan's Federal Constitutional Court (FCC) devotes only a few lines to the question of who may constitute a bench. Yet those few lines decide the entire landscape. The text gives the Chief Justice the power to determine a bench's composition, to assign cases to particular benches, and, when needed, to constitute a larger bench whose size the Chief Justice sets alone. No collegial committee stands beside that power to share or check it.

For a court that has just been created, restoring the "master of roster" doctrine to a single individual is a signal. It is not merely about procedure. It is about who sets the rhythm of an institution at the moment of its birth, while that institution must hear the country's most politically charged cases. And it reveals a paradox: the Supreme Court of Pakistan abandoned this mechanism in favor of a collegial committee, while the newer, less experienced court has returned to the most centralized version.

Context: a new court between two constitutional amendments

Pakistan has just passed through two consecutive constitutional amendments, each redrawing the map of judicial power. The 26th Amendment retained the three-judge committee for the Supreme Court's constitutional benches — a collegial mechanism in which bench-formation authority is shared among three people. The 27th Amendment went further: it created the Federal Constitutional Court and transferred jurisdiction over fundamental-rights enforcement and constitutional interpretation from the Supreme Court to the new court.

This is a transfer of the most valuable asset in the judicial system. Constitutional cases and fundamental-rights disputes — matters that touch state power — now belong to the FCC. The Supreme Court retains original jurisdiction and some residual functions, but the biggest stage has changed hands.

This must be placed in a wider political context. In recent years, relations between the federal government and former Prime Minister Imran Khan's PTI have been unprecedentedly tense. Political cases, disputes between the center and the provinces, and repeated allegations of judicial interference keep surfacing. In such an environment, any change to the judicial structure carries political meaning, whatever its proponents say.

The 2026 Practice and Procedure Rules are the final step in framing the new institution. And within them, the master-of-roster doctrine returns: the FCC's Chief Justice alone decides which bench hears which case, who sits on that bench, and when a bench should be enlarged.

The central question few ask directly: why would a new court, still needing to build credibility, choose the most centralized model in a single person's hands, while its senior counterpart has moved in the opposite direction? Answering that question explains most of the story.

The core: where power sits in the new rules

Read closely, the rules concentrate power at four points. First, the Chief Justice has sole authority to constitute benches. Second, when a bench is evenly split, the Chief Justice decides whether to refer the matter to another judge or to a larger bench. Third, the creation of a larger bench and its size are set by the Chief Justice. Fourth, at the High Court level, an appellate bench of at least two judges is nominated by the Chief Justice.

Together these four points form what legal commentators call a "full-control" model. No internal counterweight exists. No collegial committee. No mandatory procedure to consult colleagues before constituting a bench. Power flows directly from one person's decision.

The striking feature is the contrast with the Supreme Court. There, the three-judge committee still exists, even after the 26th Amendment. Constitutional bench-formation authority is shared among three people. The FCC has no equivalent mechanism. This asymmetry is not accidental. If the constitutional drafters had wanted to preserve collegiality, they would have done so in both courts. Keeping the three-judge committee in the Supreme Court but dropping it in the FCC suggests deliberate design: maintaining influence over the new court through the structure of bench formation.

Another detail sharpens the picture. FCC judges are appointed by the federal government. And the federal government is the primary expected litigant before that court. In other words, the authority that appoints the judges is also the party that will appear before them. That is a perception-sensitive structure, however independent the rulings may prove in practice.

Meanwhile, workload and resources are mismatched. The FCC received an allocation of 6.048 billion rupees in the 2026-27 budget. But the court still has seven judicial seats vacant ten months after its creation, and the wider judicial system carries more than 23,000 pending cases. A new institution, understaffed, must hear the heaviest cases. This is a shortfall no budget line can immediately fix: too few people, too little time, and too little initial trust.

Signs of activity came early. The FCC has entertained politically sensitive cases involving the PTI, sought the Imran Khan health-case record from the Supreme Court, issued notices on a petition against the de-seating of the Khyber Pakhtunkhwa Chief Minister, and moved against the Peshawar Anti-Terrorism Court. That is a rapid, high-profile entry. A newly created court already touching the hottest political files shows it has not chosen to hold back.

But high activity does not equal acceptance. This is the crux: the FCC is in a high-activity, low-consensus phase. It does a great deal but has not yet won trust. The so-called "battle of perception" is currently a bigger risk than the outcome of any single case. A ruling may be legally sound yet still be read as motivated — and in politics, how a decision is read often matters no less than its content.

Lawyers have spoken up. They demand checks on the transparency of bench formation and criticize the master-of-roster doctrine. One lawyer argued the mechanism is "completely necessary when you have the FCC." That argument is worth reading between the lines: it rationalizes centralization and reflects an establishment-aligned view. When professionals themselves justify concentrated power rather than demand checks, it signals the debate is far from settled.

To be clear: this is an analysis of institutional design, not of the correctness of any particular ruling. What is being questioned is the structure, not the people. But structure shapes behavior — and that is why a few lines in the rulebook deserve to be read as a political document, not merely a procedural one.

The contrarian angle: a story read too early

What is easily missed is that the FCC is only months old. Any conclusion about how this court will actually operate comes too soon. Labels such as "executive-aligned court" or "instrument of control" are attached on the basis of rule text and appointment structure — real facts — but there is not yet enough ruling behavior to verify them.

In other words, the story is being "over-determined" relative to its evidence base. This is a familiar risk: a young institution, scrutinized under a magnifying glass, assigned meaning before it can prove itself. The heat of the story exceeds the age of the institution. People read a rulebook as if it were a judgment, when the rulebook speaks only of procedure.

There is an under-noticed internal contradiction. Several FCC judges — including incumbent Chief Justice Aminuddin Khan and Justice Hasan Azhar Rizvi — previously supported the three-judge committee in the Supreme Court context. Now they operate under a rulebook that bypasses that collegial mechanism. The gap between their earlier position and the new reality may generate internal friction, even if it has not surfaced. An institution is judged not only from outside; it must also reconcile itself from within.

The second blind spot: the ten-month vacancy of seven seats is easily read as administrative delay. But in an institution where the composition of judges shapes the direction of rulings, that delay can also be read as sequencing appointments to shape the balance. This is a hypothesis, not a conclusion, but it is a question worth asking. Seven vacant seats are not just seven empty chairs; they are seven potential votes.

The third blind spot: a "Chief Justice with full control" model does not necessarily lead to a bad outcome. A Chief Justice who acts transparently, assigns cases by expertise, and publishes reasons can turn concentrated power into effectiveness. The problem is not power itself but the absence of a mechanism forcing that power to be transparent. The same tool, used two ways, yields two outcomes.

And it is worth remembering that constitutional courts around the world often take years to shape their identity. The fact that the FCC is being read through a political lens from the outset is largely due to Pakistan's political context, not only to the rulebook. The rulebook was the pretext for the story to flare up; the context was the fuel.

Where the risk lies

If one drew a risk matrix, the hottest point would not be adjudicative capacity but legitimacy. Four risk axes overlap. One is the perception of alignment between the court and the executive — high level, high likelihood, large impact. Two is the staffing shortfall of seven long-vacant seats — already true, direct impact. Three is the absence of any check on the Chief Justice's bench-formation power. Four is public-opinion pressure in the "battle of perception." Every axis converges on one point: institutional trust.

Notably, these risks are not independent. Understaffing slows adjudication; slow adjudication in political cases feeds further suspicion; suspicion makes every subsequent ruling harder to accept. It is a self-reinforcing spiral, and the only way out is to make bench-formation transparent before the spiral closes.

What to watch

Three signals will shape this story. First, how and when the seven vacant seats are filled — the new composition will shift the balance. Second, how the Chief Justice constitutes benches in political cases: if benches routinely comprise "like-minded" figures, institutional trust will erode. Third, the rulings in matters involving the PTI, Khyber Pakhtunkhwa province, and the federal government — each ruling is a test of the story being told.

A new court can be designed to concentrate power. But no design writes its own credibility. Credibility comes only from rulings persuasive enough to convince both winners and losers. In the FCC's case, the unanswered question is not who holds the power to form benches, but how that power will be used when the first genuinely important case arrives.