SC says it lacks jurisdiction over NAB matters

ISLAMABAD:

The Supreme Court has ruled that it no longer has jurisdiction to hear matters arising under the National Accountability Ordinance (NAO),1999—a law that governs the National Accountability Bureau (NAB)—declaring that all pending appeals and bail-related petitions in NAB cases stand transferred to the Federal Constitutional Court (FCC) following recent amendments to the law.

In a detailed 30-page judgment authored by Justice Muhammad Ali Mazhar, a three-member bench held that the court could no longer take cognisance of NAB cases in view of Article 175F(a) of the Constitution read with Sections 32 and 32A of the National Accountability Ordinance, 1999.

The bench was adjudicating questions arising after recent amendments to the NAO, including 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.

"We reach a finale that this Court has no jurisdiction to take cognizance in the NAB cases in terms of Article 175F(a) of the Constitution read with Section 32 and 32A of the NAO, 1999.

"As a consequence thereof, all criminal petitions for leave to appeal and criminal appeals in which leave has been granted and are pending in this Court arising out of the NAO, 1999 stand transferred by fiction of law to the FCC," the judgment said.

The bench observed that the right of appeal introduced through Section 32A of the NAO had become a statutory remedy with retrospective effect, impacting all pending civil petitions for leave to appeal by automatically converting them into direct second appeals, while criminal petitions in which leave had already been granted would now be heard by the new appellate forum.

The judgment described the amendment as a beneficial and remedial provision that creates an additional appellate layer in the form of a second appeal, serving the interests of accused persons. It added, however, that the Amendment Act, 2026, would have no effect on cases that had already been finally decided.

The court further held that the introduction of the second appeal had shifted the final appellate forum in accountability cases from the Supreme Court to the FCC.

"For all intents and purposes, a vested right of second appeal has restructured or transformed a final appellate terminus or destination of accountability cases away from this Court to the FCC, while disengaging a discretionary grant of leave into an automatic right of appeal," the judgment stated.

It ruled that all pending criminal petitions for leave to appeal, appeals already admitted against conviction or acquittal, as well as petitions challenging high court orders refusing or granting bail, suspension of sentence or related matters, must be transmitted to the FCC.

The judgment referred to arguments advanced by counsel Ibad ur Rehman Lodhi, who contended that although Section 32A provides for appeals before the FCC, the SC still retained jurisdiction to hear bail petitions filed by under-trial prisoners whose bail had been declined by high courts.

The bench, however, observed that counsel could not answer the legal question of how the SC could convert such petitions into appeals in the absence of statutory appellate jurisdiction.

"Can we assume suo motu appellate jurisdiction? No answer was furnished to this question," it said.

The court held that a court's authority to grant bail is inseparably linked with its constitutional or statutory appellate jurisdiction.

"If the Constitution or a special law transmits all appellate authority to another court or tribunal, then the court having no jurisdiction neither can intervene nor entertain bail petitions. Before entertaining or granting bail, the court must have a legal hook and eye," it observed.

It said amendments to the NAB law had unequivocally divested the SC of its appellate status in accountability matters, leaving it without authority to issue even interim orders, including bail.

The court termed it legally untenable for the SC to hear bail petitions while the substantive appeal in the same matter would be decided by the FCC.

The judgment further explained that a person released on bail remains in custodia legis—the custody of the law—with the court retaining legal authority over the accused through sureties.

However, it maintained that because the NAO now expressly provides a second appellate remedy before the FCC, it simultaneously excludes the jurisdiction of all other courts, even in bail matters.

Responding to the argument that the SC should not surrender its jurisdiction, it stressed that courts are bound to act strictly in accordance with the Constitution and the law rather than public opinion.

"The duty of the Court is to follow the law and not make decisions or assume jurisdiction motivated by media mileage or public consumption," the judgment stated. It added that courts should neither assume jurisdiction not conferred upon them nor abdicate jurisdiction vested by law.

"It is not a matter of surrender or conquest but it is regulated by the law," the judgment observed, citing Article 175 of the Constitution, which provides that no court shall exercise jurisdiction except as conferred by the Constitution or law.

The court held that any exercise of jurisdiction without statutory or constitutional backing amounts to judicial overreach and renders such decisions void under the doctrine of coram non judice. It observed that the jurisdictions of the SC and the FCC operate independently and do not overlap.

"It is not possible that bail petitions should be entertained and decided by this Court while, in the same case, the appeal should be heard by the FCC, which is beyond the scope and rigours of law."

Rejecting forum shopping, the court held that litigants cannot create an appellate remedy based on personal preference where the law provides none.

The judgment also reflected on past judicial practices, observing that "unbridled judicial overreach including flagrant misuse of suo motu powers" had damaged the institutional image and legitimacy of the judiciary and had ultimately led to several constitutional and legislative changes.

"If a court does not possess statutory jurisdiction over a matter, it must step away without any intervention. No judge is robed, crowned or sceptered as a king to do whatever suits his whim and caprice as one-man rule," it added.

Lawyers react

Barrister Salahuddin Ahmed criticised the ruling, saying proponents of the 26th and 27th Constitutional Amendments had argued that the creation of the FCC would allow constitutional issues to be heard separately while leaving the SC free to decide ordinary cases expeditiously.

"Now, the FCC will be the first dedicated constitutional court in the world that not only hears NAB appeals but even bail matters," he said.

He said the decision reinforced the perception that the principal objective behind creating the FCC was to ensure that cases considered important by the government were heard by the constitutional court.

He argued that election disputes and other politically significant matters would also eventually be routed to the FCC, reducing the SC's practical role.

Former additional attorney general Waqar Rana said the judgment was consistent with the approach adopted by the present SC judges and the chief justice since the passage of the 26th Amendment.

He said the court had consistently treated the text of the Constitution and statutes as paramount without venturing into questions concerning the wisdom or legitimacy of legislation.

According to Rana, the judiciary's approach reflects a reluctance to adjudicate political disputes between state institutions and the public, preferring instead to confine itself to deciding ordinary legal disputes.

Lawyer Hafiz Ahsaan Ahmad Khokhar welcomed the judgment, describing it as providing long-awaited constitutional clarity. He said the ruling reaffirmed the settled constitutional principle that judicial jurisdiction flows exclusively from the Constitution and statutory law, rather than administrative practice, judicial preference, convenience or the consent of litigants.

Khokhar maintained that by recognising the statutory jurisdiction of the FCC, the SC had strengthened the constitutional framework established through the 26th and 27th Constitutional Amendments, avoided institutional overlap and promoted constitutional harmony.

He added that the judgment was likely to become a leading precedent on the relationship between statutory appellate jurisdiction and constitutional jurisdiction while guiding the interpretation of future legislation enacted under Pakistan's amended constitutional framework.