Legal experts have expressed concern 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 by the 27th Constitutional Amendment, under which all judges are appointed by the executive, exercising its discretion. Earlier, aggrieved parties approached the Supreme Court by filing a civil petition for leave to appeal (CPLA) against the decisions of high courts in NAB cases. However, CPLAs were a type of appeal in criminal cases, especially in matters where convictions were upheld in higher courts, says a lawyer. Experts question why the second appellate forum has been assigned to the FCC instead of the Supreme Court, particularly when FCC judges are appointed by the government. There is also debate over whether the current government intends to gradually replace the Supreme Court with the FCC. However, it is a fact that the current judges of the Supreme Court, especially the Chief Justice of Pakistan Yahya Afridi, did not make any serious effort to ensure the jurisdiction and powers of the Supreme Court. Advocate Faisal Siddiqi believes that the so-called second appeal is another silent and gradual attempt to destroy the criminal jurisdiction of the Supreme Court and control the fate of politicians through NAB proceedings.
"I am surprised by the tragic myopia of the PPP and the PML-N, who sooner rather than later will be victims of this second call." duck. Former law officer Muhammad Waqar Rana says filing second appeal in NAB cases is apparently ultra vires of the Constitution. "Article 185(2) states that if the high court interferes with the acquittal, the appeal will lie with the SC. It is unprecedented as nowhere in the last 200 years has a second appeal been made and also violates Article 25, which grants only in some cases a legal right of appeal." says Frog. Lawyer Abdul Moiz Jaferii says this is a logical step forward in the dismantling of the judiciary structure first envisaged in the 26th amendment and consolidated by the 27th.
"The NAB has been used for the last 25 years for political engineering. No agreement of this type would be complete without its engineering being handled by specialized courts. While the Supreme Court is a shadow of its former self and supreme in all but name, it still cannot compete with the fully curated FCC and therefore that is where all NAB second appeals must go." says Jaferii. Lawyer Asad Rahim Khan says no unity regime was possible without ensuring that dozens of accountability cases magically disappeared, and no unity regime was possible without Justice Qazi Faez Isa and the loss of power of the Supreme Court in favor of the FCC.
"It is fitting that these twin threads now come to meet. What began with the decision passed by Qazi and his like-minded judges upholding the attack on the NAB law for specific individuals, now comes to conclude with the FCC, a court with which our ruling parties are infinitely happy." says lawyer Asad Rahim Khan. However, Hafiz Ehsaan Ahmad Khokhar, defending the amendments to the NAB law, says that the amendments attempt to harmonize the procedures of the NAB with the principles contained in the Code of Criminal Procedure, 1898, particularly sections 497, 498 and 499, which empower the courts to grant bail.
"By clarifying the powers of accountability tribunals and high courts to grant bail in accordance with the general criminal procedural framework, the amendments aim to ensure a balance between effective accountability and the constitutional guarantees of liberty and due process, protected by Articles 9 and 10A of the Constitution. Khokhar emphasized that a progressive aspect of the legislation is the introduction of Section 32A, which provides for a second appeal to the Federal Constitutional Court of Pakistan on questions of law. According to Khokhar, this reform is in line with the constitutional structure envisaged in the Twenty-Seventh Constitutional Amendment of Pakistan, which provides for a specialized constitutional forum to resolve important legal and constitutional issues. Under the constitutional framework – particularly articles 175 and 185 – the interpretation of complex legal issues traditionally falls to the higher constitutional courts. Therefore, granting appellate jurisdiction to the Federal Constitutional Court on accountability issues would promote uniformity in legal interpretation and strengthen the rule of law."
Khokhar further emphasized that the power to amend accountability laws lies squarely with Parliament, which is constitutionally empowered to legislate in public interest. The amendments to the National Accountability Office Ordinance, particularly those related to jurisdictional thresholds, bail provisions, appeal review and institutional structure, represent an attempt to modernize Pakistan’s accountability framework while fostering a constructive constitutional debate on transparency, fairness and institutional independence."duck. Waqas Ahmad’s advocate believes that through recent amendments and FCC jurisprudence 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 a high court.
"The result is a peculiar situation: a higher, although subordinate, court can decide questions of law, but the Supreme Court faces limitations. From a rent controller or a magistrate to the Federal Constitutional Court, direct petitions can be filed through the entire judicial hierarchy, but the Supreme Court is almost the only forum where a direct petition cannot normally be filed."duck. A PTI lawyer expressed disappointment over the amendments to the NAB law.
"Clearly, these are tailor-made for Imran Khan as his release and bail are ripe and there are no more cases pending. IHC will dismiss and the cases will be parked at the FCC," Imran Khan’s lawyer Salman Safdar said and added that the scope of the appeal is never limited.
