SC examines FCC's jurisdiction

Top court likely to announce order in NAB appeal case within next few days

ISLAMABAD:

The Supreme Court has reserved its ruling on whether pending appeals and bail petitions in National Accountability Bureau (NAB) cases should be heard by the apex court or the Federal Constitutional Court (FCC) following the recent amendment to the National Accountability Ordinance (NAO).

The court is expected to announce its order within the next couple of days.

In March, Section 32-A was inserted into the NAO, stipulating that the FCC would serve as the second appellate forum in NAB cases.

The amendment stated that any person convicted, or the prosecutor general accountability (if directed by the NAB chairman), who is aggrieved by a decision made by the high court under Section 32, may prefer a second appeal to the FCC within 30 days.

Now a three-judge bench of Supreme Court led by Justice MuhammadAli Mazhar is examining whether pending appeals in NAB cases should be transferred to the FCC and whether bail applications in such cases also fall within the constitutional court's jurisdiction.

AGP Mansoor Awan has contended that all matters relating to the NAB law, including bail issues, would now be heard by the FCC after recent amendment in NAB law.

He, however, said that there is nothing mentioned in amended NAB law that bail appeals against high courts order would be decided by FCC.

The AGP also stated that in the past, the apex court had decided bail matters after examining the merits of the entire case, citing the bail case of Khawaja Saad Rafique as an example. The NAB counsel urged Supreme Court to fill this omission and held that bail matters would be decided by FCC.

Justice Musarrat Hilali remarked that the amendments to the NAB law are completely silent on the issue of bail. "The word bail does not appear anywhere in the amended NAB law. Could it be that a window has been deliberately left open wherever favour is to be extended?" she observed.

On the other hand, Ibadur Rehman Lodhi, counsel for an accused in a NAB case, argued that while all appeals, including those currently pending before the Supreme Court, would be heard by the FCC, bail matters under the NAO, 1999, should remain within the top court's jurisdiction.

Lodhi cited the example of Hudood law cases, where appeals are heard by the Federal Shariat Court while bail applications continue to be adjudicated by the high courts. He argued that the same principle should apply to NAB cases.

The counsel further revealed that after the recent amendment to the NAB law, a Supreme Court bench headed by Justice Naeem Akhtar Afghan granted bail to an accused in a NAB case.

"For God's sake, the Supreme Court should not surrender its authority for some 'clandestine' motives of the executive," Lodhi said.

Upon this, Justice Mazhar pointed out that the apex court did not surrender its authority; rather, the 27th Constitutional Amendment said that the appeals would go to the FCC.

A senior lawyer questioned how Justice Mazhar could depart from his own judgment when he had transferred the Dewan Motors case from the bench headed by Justice Syed Mansoor Ali Shah.

As Justice Shah maintained that a regular bench had the authority to determine its own jurisdiction, some judges, including Justice Mazhar, argued that only the constitutional bench could decide the issue.