ISLAMABAD:
The Federal Government has informed the Supreme Court that following recent amendments to the National Accountability Ordinance (NAO), bail proceedings as well as appeals in the National Accountability Bureau (NAB) proceedings fall within the jurisdiction of the Federal Constitutional Court (FCC).
A three-judge 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 under 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 case on Tuesday.
In a written reply submitted to the apex court, Additional Attorney General Umar Aslam stated that all matters relating to the NAB Act, including matters of bail, 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 proceedings under the NAO, 1999 should remain within the SC’s jurisdiction.
Lodhi cited the example of Hudood trials, where appeals are heard by the Federal Sharia Court, while bail applications continue to be decided by the High Courts. He argued that the same principle should apply to NAB cases.
The lawyer further revealed that after the recent amendment to the NAB Act, an SC bench headed by Justice Naeem Akhtar Afghan granted bail to an accused in a NAB case.
Lodhi, who previously served as a judge at the Lahore High Court, argued that the amendment was “person-specific” and should have been struck down by the courts.
The jurisdiction dispute has significant 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 be eligible to file another appeal with the FCC, set up under the 27th Amendment to the Constitution, whose judges are appointed by the executive branch.
The issue emerged after the SC Registrar’s Office returned appeals filed by Imran Khan and his wife, Bushra Bibi, challenging an IHC order that refused to entertain their applications for suspension of sentence on merit in the £190 million Al-Qadir Trust case.
The Registrar believed that the appropriate remedy against the IHC order lay with the FCC.
However, their lawyer Salman Safdar contested the objections and maintained that the appeals are maintainable before the SC under Article 185(1). 3, of the constitution.
According to the petition, Article 175A, para. 1, letter a), that an appeal to the FCC is only if it is expressly provided for by law.
The petition further states that Section 32A of the NAO, 1999 only provides for a second appeal to the FCC against a decision made by a High Court under Section 32 of the Order.
It contends that the NAO does not expressly provide for an appeal to the FCC against orders made 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 statutory appeal under the NAO, 1999, the impugned order can be challenged before the SC under Article 185(3) of the Constitution,” the petition said.
However, another section of the legal fraternity maintains that an application for suspension of sentence is a continuation of the appeal itself and therefore such applications should now be filed with the FCC.
In the past, litigants aggrieved by Supreme Court decisions in NAB cases have approached the SC by filing civil petitions for leave to appeal (CPLAs). Lawyers note that although styled as CPLAs, these petitions functioned effectively as criminal appeals, particularly in cases where convictions had been upheld by the high courts.
The recent changes have also sparked a wider debate in legal circles as to 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 Supreme Court’s role with that of the FCC.
They also claim that the present SC, especially under Chief Justice of Pakistan Yahya Afridi, has not made any serious effort to protect the apex court’s constitutional jurisdiction and powers.
Senior lawyer Faisal Siddiqi described the new second appeal mechanism as “another silent and gradual attempt to destroy the Supreme Court’s criminal jurisdiction and control the fate of politicians through NAB proceedings.”
“I am amazed at the tragic short-sightedness of PPP and PML-N. They will fall prey to this second appeal sooner rather than later,” he said.
Former lawyer Muhammad Waqar Rana argued that grant of second appeal in NAB cases to FCC is apparently unconstitutional.
“Article 185(2) says that if a High Court interferes with an acquittal, the appeal shall lie to the Supreme Court. This is unprecedented as nowhere in the last 200 years has another appeal been granted in this manner and it is also contrary to Article 25 which provides a statutory right of appeal only in certain cases,” Rana said.
Lawyer Abdul Moiz Jaferii described the amendment as “a logical progression in the winding up of the structure of the judiciary which was first envisaged by the 26th Amendment and cemented by the 27th.”
“The NAB has been used for the last 25 years to do political engineering. No such arrangement would be complete without its construction being handled by technical courts. While the SC is a shell of what it was and supreme in all but name, it still cannot compete with the completely cherry-picked FCC, and therefore that is where all NAB’s other appeals must go,” he said.
Barrister Asad Rahim Khan said the latest changes reflected a wider shift in the judiciary.
“No unity regime was possible without ensuring that scores of accountability cases magically disappeared, and no unity regime was possible without Justice Qazi Faez Isa and the disempowerment of the SC in favor of the FCC,” he said.
“It is fitting that these twin threads now come to meet. What began with the decision made by Qazi and his like-minded judges, who joined the personal mauling of the NAB Act, is now being concluded with the FCC, a court that our ruling parties are infinitely pleased with.”
Defending the amendments, Hafiz Ahsaan Ahmad Khokhar said the amendments seek to harmonize NAB cases with the Criminal Procedure Code, 1898, particularly Sections 497, 498 and 499, which empower courts to grant bail.
“By clarifying the powers of accountability courts and the Supreme Court to grant bail in line with the general framework for criminal proceedings, the amendments aim to strike a balance between effective accountability and the constitutional guarantees of liberty and due process protected under Articles 9 and 10A of the Constitution,” he said.
Lawyer Waqas Ahmad argued that recent amendments and the FCC’s evolving jurisprudence after the 27th Amendment have actually curtailed the Supreme Court’s power to decide questions of law.
“The result is a peculiar situation: a high court, although subordinate, can decide questions of law, yet the Supreme Court faces limitations. From a rent controller or magistrate to the Federal Constitutional Court, direct petitions can be made across the judicial hierarchy, but the Supreme Court stands almost alone as the only forum where a direct request cannot be made,” he said normally.
