SC's NAB verdict: constitutional return to judicial restraint

The recent Supreme Court judgment, delivered by a three-member bench headed by Justice Muhammad Ali Mazhar, stands among the most consequential constitutional pronouncements rendered since the 26th and 27th Constitutional Amendments. By affirming Parliament's decision to vest second appellate jurisdiction under the newly inserted Section 32A of the National Accountability Ordinance, 1999 in the Federal Constitutional Court, the Supreme Court has resolved a significant jurisdictional controversy while giving meaningful effect to Pakistan's evolving constitutional architecture. The judgment transcends the confines of accountability law. It reaffirms the supremacy of the Constitution, the legislative competence of Parliament, the doctrine of separation of powers, judicial restraint and the rule of law. Above all, it reinforces the cardinal constitutional principle that judicial authority emanates exclusively from the Constitution and legislation enacted thereunder, rather than from historical practice, institutional preference or procedural convenience.

The controversy arose following the enactment of the National Accountability (Amendment) Act, 2025, through which Parliament inserted Section 32A into the National Accountability Ordinance with effect from January 2026. The provision expressly stipulates that judgments delivered by the High Courts under Section 32 shall be appealable before the Federal Constitutional Court. Notwithstanding the statutory amendment, uncertainty persisted regarding whether second appeals should continue to lie before the Supreme Court. The present judgment has conclusively settled that question. Reaffirming a well-established principle of constitutional jurisprudence, the Court held that the right of appeal is not an inherent constitutional entitlement but a statutory right, the creation, regulation, expansion, restriction or transfer of which falls within Parliament's legislative domain unless expressly limited by the Constitution. Exercising its legislative competence under Article 142, read with Article 191A establishing the Federal Constitutional Court, Parliament validly designated that Court as the appellate forum for second appeals arising under the National Accountability Ordinance.

The practical consequences of the judgment are both immediate and far-reaching. All second appeals under the National Accountability Ordinance - including appeals against conviction, acquittal, bail, suspension of sentence and all ancillary proceedings contemplated by Section 32A - shall now be heard by the Federal Constitutional Court. In doing so, the Supreme Court has removed the uncertainty that followed the constitutional amendments, eliminated jurisdictional ambiguity and ensured that accountability litigation proceeds before the constitutionally designated forum.

Equally significant is the Court's unequivocal recognition of the constitutional status and jurisdiction of the Federal Constitutional Court. By giving full legal effect to Section 32A, the Supreme Court has, for the first time, provided practical judicial recognition to the jurisdiction entrusted to this newly established constitutional institution. The judgment affirms that the Supreme Court and the Federal Constitutional Court are distinct constitutional courts exercising separate jurisdictions assigned by the Constitution and legislation enacted pursuant thereto. Their relationship is complementary rather than competitive, and the orderly functioning of Pakistan's constitutional framework requires each court to exercise only the jurisdiction constitutionally entrusted to it.

The judgment also reaffirms a foundational doctrine of constitutional law: jurisdiction cannot be assumed on the basis of historical practice, administrative convenience, institutional preference or the consent of litigants. Courts derive their authority solely from the Constitution and statutes enacted under it. Once Parliament validly allocates jurisdiction to a particular judicial forum, every court is constitutionally obliged to respect that legislative determination. This principle strengthens legal certainty, promotes institutional discipline and reinforces the rule of law by ensuring that jurisdiction is governed by constitutional command rather than judicial preference.

The decision also reflects an important stage in the maturation of Pakistan's constitutional jurisprudence. Over the past two decades, the Supreme Court has played an indispensable role in safeguarding judicial independence, enforcing constitutional supremacy and protecting fundamental rights. Judicial activism made significant contributions to governmental accountability and public interest litigation. At the same time, it generated an enduring constitutional discourse concerning the proper limits of judicial authority and the respective constitutional roles of Parliament, the Executive and the Judiciary. The Constitution is founded upon the doctrine of separation of powers: Parliament legislates, the Executive administers the law and the Judiciary interprets and enforces it. Courts remain the guardians of the Constitution, but constitutional guardianship does not authorise judicial legislation. Their constitutional mandate is to interpret and apply the law, not to rewrite statutes or enlarge their own jurisdiction beyond that conferred by the Constitution.

This debate assumed particular prominence in several landmark constitutional cases concerning Article 63A relating to parliamentary defections, Article 62(1)(f) governing the disqualification of elected representatives, military courts and the Reserved Seats case. These decisions profoundly shaped Pakistan's constitutional landscape and generated extensive academic and professional debate regarding the scope of judicial review. Subsequent constitutional amendments, legislative enactments and review judgments demonstrate that constitutional jurisprudence evolves through a continuing constitutional dialogue between Parliament and the superior judiciary. While certain landmark decisions, including the Panama Papers case and the conviction of former Prime Minister Syed Yousaf Raza Gillani, remain unaffected by subsequent constitutional developments, the broader lesson is that constitutional adjudication commands its greatest legitimacy when firmly anchored in constitutional text, legislative intent and the doctrine of separation of powers.

Against this constitutional backdrop, the present NAB jurisdiction judgment assumes exceptional significance. It is not a decision that enlarges judicial authority; rather, it is one that faithfully recognises constitutional limits. Instead of preserving historical jurisdiction based upon institutional practice, the Supreme Court has respected the constitutional framework established through the 26th and 27th Constitutional Amendments. It has recognised that where Parliament validly exercises its constitutional authority to create statutory rights and prescribe appellate forums, the judicial function is to implement that legislative choice unless it clearly contravenes an express constitutional provision.