A question of SC's shrinking domain

ISLAMABAD:

Legal experts have raised concerns over the latest amendment to the National Accountability Ordinance (NAO), which establishes a Federal Constitutional Court (FCC) as a second appellate forum in NAB cases.

The FCC was created through the 27th Constitutional Amendment, under which all judges are appointed by the executive, exercising its discretion.

Earlier, aggrieved parties were approaching the Supreme Court by filing civil petition leave to appeal (CPLA) against high courts' decisions in NAB cases.

However, CPLAs were kind of appeals in criminal cases, especially in matters wherein convictions were maintained in high courts, says a lawyer.

Experts are questioning why the second appellate forum has been assigned to the FCC instead of the Supreme Court, particularly when the FCC's judges are appointed by the government. They are also debating whether the present government intends to gradually replace the Supreme Court with the FCC.

However, it is a fact that the present SC judges, especially Chief Justice of Pakistan Yahya Afridi, did not do any serious effort to secure the jurisdiction/powers of the Supreme Court.

Faisal Siddiqi advocate believes that the so-called second appeal is another silent and incremental attempt to destroy the criminal jurisdiction of the Supreme Court and to control the destiny of politicians through NAB proceedings.

"I am surprised at the tragic short-sightness of the PPP and the PML-N, they will be victims of this second appeal sooner rather than later," he adds.

Former law officer Muhammad Waqar Rana says that giving second appeal in NAB cases is apparently ultra vires of the Constitution. "Article 185(2) states that if the high court interferes in acquittal the appeal shall lie to SC. It is unprecedented as nowhere in last 200 years second appeal has been given and also violative of article 25 which gives only in some cases a statutory right of appeal," says Rana.

Abdul Moiz Jaferii advocate says that this is a logical advancement of the dismantling of the structure of the judiciary first envisaged by the 26th amendment and cemented by the 27th.

"The NAB has been used for the past 25 years to effect political engineering. No such arrangement would be complete without its engineering being handled by engineered courts. Whilst the Supreme Court is a shell of what it was and supreme in all but name, it still cannot compete with the completely cherry picked FCC and hence that's where all NAB second appeals must go," says Jaferii.

Barrister Asad Rahim Khan says that no unity regime was possible without ensuring dozens of accountability cases magically went away, and no unity regime was possible without Justice Qazi Faez Isa and the disempowerment of the Supreme Court in favour of the FCC.

"It is fitting that these twin threads will now get to meet. What began with the decision passed by Qazi and his like-minded judges endorsing the person-specific mauling of the NAB law, now gets to conclude with the FCC, a court our ruling parties are infinitely happy with," says Barrister Asad Rahim Khan.

However, Hafiz Ehsaan Ahmad Khokhar, defending the amendments in NAB law, says that the amendments attempt to harmonise NAB proceedings with the principles contained in the Code of Criminal Procedure, 1898, particularly Sections 497, 498, and 499, which empower courts to grant bail.

"By clarifying the powers of accountability courts and high courts to grant bail in accordance with the general criminal procedure framework, the amendments aim to ensure a balance between effective accountability and the constitutional guarantees of liberty and due process, as protected under Articles 9 and 10A of the constitution

Khokhar emphasised that a progressive aspect of the legislation is the introduction of Section 32A, which provides for a second appeal before the Federal Constitutional Court of Pakistan on questions of law.

According to Khokhar, this reform aligns with the constitutional structure envisioned under the Twenty-Seventh Constitutional Amendment of Pakistan, which provides for a specialised constitutional forum to adjudicate important legal and constitutional issues. Under the constitutional framework—particularly Articles 175 and 185—the interpretation of complex legal questions traditionally lies with superior constitutional courts. Granting appellate jurisdiction to the Federal Constitutional Court in accountability matters would therefore promote uniformity in legal interpretation and strengthen the rule of law"

Khokhar further emphasised that the power to amend accountability laws rests squarely with Parliament, which is constitutionally empowered to legislate in the public interest. The amendments to the National Accountability Bureau Ordinance—particularly those relating to jurisdictional thresholds, bail provisions, appellate review, and institutional structure—represent an attempt to modernise Pakistan's accountability framework while encouraging a constructive constitutional debate on transparency, fairness, and institutional independence", he adds.

Waqas Ahmad advocate believes that through recent amendments and the jurisprudence of FCC following the 27th Amendment, the wings of the Supreme Court of Pakistan have effectively been clipped by restricting its power to decide questions of law—the very function that defines an apex court.

"The result is a peculiar situation: a high court, though subordinate, may decide questions of law, yet the Supreme Court faces limitations. From a Rent Controller or Magistrate to the Federal Constitutional Court, direct petitions can be filed across the judicial hierarchy, but the Supreme Court stands almost alone as the only forum where a direct petition cannot ordinarily be filed", he adds.

A PTI lawyer expressed disappointment on the amendments in NAB law.

"Clearly these are tailer made for Imran Khan as his release and bail is mature and there are no more cases in pipeline. IHC will dismiss & cases will be parked in FCC," Imran Khan's lawyer Salman Safdar said and added that scope of appeal is never limited.