ISLAMABAD:
The federal government has informed the Supreme Court that, following recent amendments to the National Accountability Ordinance (NAO), bail issues, as well as appeals in National Accountability Bureau (NAB) cases, fall within the jurisdiction of the Federal Constitutional Court (FCC).
A three-member SC bench headed by Justice Muhammad Ali Mazhar, and comprising Justice Mussarat Hilali and Justice Shahid Bilal Hassan, 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 jurisdiction of the constitutional court.
The latest amendment to the NAO designates the FCC as the second appellate forum in NAB cases. The court is scheduled to resume hearing the matter on Tuesday.
In a written reply submitted to the apex court, Additional Solicitor General Umar Aslam stated that all matters related to the NAB law, including bail issues, would now be heard by the FCC.
However, Ibad ur Rehman Lodhi, counsel for an accused in a NAB case, argued that while all appeals, including those currently pending before the SC, would be heard by the FCC, bail issues under the NAO 1999 should remain within the jurisdiction of the SC.
Lodhi cited the example of Hudood law cases, where appeals are heard by the Federal Shariat Court while bail applications continue to be heard by higher courts. He argued that the same principle should apply to NAB cases.
The lawyer further revealed that after the recent amendment in the NAB law, an SC bench headed by Justice Naeem Akhtar Afghan granted bail to an accused in a NAB case.
Lodhi, who previously served as a Lahore High Court judge, argued that the amendment was “person-specific” and should have been struck down by the courts.
The jurisdictional dispute has major implications for former Prime Minister Imran Khan, who has been convicted in NAB cases. If the Islamabad High Court upholds his conviction in the Al-Qadir Trust case, he would have the right to file a second appeal before the FCC, established under the 27th Constitutional Amendment, whose judges are appointed by the executive.
The issue gained prominence after the SC Registrar’s Office returned appeals filed by Imran Khan and his wife, Bushra Bibi, challenging an IHC order that refused to decide their applications for suspension of judgment on merit in the £190 million Al-Qadir Trust case.
The registrar held that the appropriate remedy against the IHC order was before the FCC.
However, his lawyer Salman Safdar contested the objections, maintaining that appeals can be maintained before the Supreme Court under Article 185(3) of the Constitution.
According to the petition, Section 175A(1)(a) states that an appeal can only be made to the FCC when expressly provided by law.
The petition further states that Section 32A of the NAO 1999 provides for a second appeal to the FCC only against a decision made by a higher court under Section 32 of the ordinance.
He submits that the NAO does not expressly provide for an appeal to the FCC against orders passed on bail applications under Section 9(b) of the ordinance read with Section 497 of the Code of Criminal Procedure (CrPC), or against orders on applications for suspension of sentence, even when such applications are made in criminal appeals under Section 32.
“In the absence of any specific legal remedy of appeal under the NAO, 1999, the impugned order is challenged before the Supreme Court under Article 185(3) of the Constitution,” the petition states.
However, another section of the legal community maintains that an application for suspension of sentence is a continuation of the appeal itself and therefore such applications must now be filed with the FCC.
Earlier, litigants aggrieved by high court decisions in NAB cases approached the SC by filing civil petitions for leave to appeal (CPLA). Lawyers point out that, although called CPLA, these petitions effectively functioned as criminal appeals, particularly in cases where convictions had been upheld by higher courts.
The recent amendments have also sparked a broader debate within legal circles about why the FCC, rather than the SC, has been designated as the second appellate forum in NAB cases, especially since FCC judges are appointed by the government. Some legal experts have questioned whether the government intends to gradually replace the role of the Supreme Court with that of the FCC.
They also argue that the current SC, particularly under Chief Justice of Pakistan Yahya Afridi, has not made any serious effort to safeguard the jurisdiction and constitutional powers of the apex court.
Senior advocate Faisal Siddiqi described the new second appeal mechanism as “another quiet 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. Sooner or later they will be victims of this second call,” he said.
Former judicial officer Muhammad Waqar Rana argued that assigning second appeals in NAB cases to the FCC is apparently ultra vires the Constitution.
“Article 185(2) states that if a higher court interferes with an acquittal, the appeal will lie with the Supreme Court. This is unprecedented as nowhere in the last 200 years has a second appeal been provided for in this manner, and also violates Article 25, which grants a legal right of appeal only in certain cases,” Rana said.
Lawyer Abdul Moiz Jaferii described the amendment as “a logical step forward in dismantling the structure of the judiciary first envisioned in the 26th Amendment and consolidated by the 27th.”
“The NAB has been used for the last 25 years to effect political engineering. No such agreement would be complete without its engineering being handled by designed courts. While the SC is a shadow of its former self and supreme in all but name, it still cannot compete with the fully-selected FCC and therefore that is where all NAB second appeals must go,” he said.
Lawyer Asad Rahim Khan said the latest changes reflect a broader shift in the judiciary.
“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 disempowerment of the SC to the FCC,” he said.
“It is fitting that these twin threads now meet. What began with the decision passed by Qazi and his like-minded judges upholding the NAB law’s targeting of specific individuals now comes to a conclusion with the FCC, a court with which our ruling parties are infinitely happy.”
Defending the amendments, Hafiz Ahsaan Ahmad Khokhar said the changes seek to harmonize NAB procedures with the Code of Criminal Procedure, 1898, particularly sections 497, 498 and 499, which empower 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 seek 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,” it said.
Attorney Waqas Ahmad argued that recent amendments and the evolution of FCC jurisprudence after the 27th Constitutional Amendment have effectively restricted the Supreme Court’s authority to decide questions of law.
“The result is a peculiar situation: a higher, though 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 judicial hierarchy, but the Supreme Court is almost the only forum where a direct petition cannot normally be filed,” he said.
