Legal experts have expressed concerns over the latest amendment to the National Accountability Ordinance (NAO), which establishes a Federal Constitutional Court (FCC) as a second forum of appeal in NAB cases. The FCC was created by the 27th Constitutional Amendment, under which all judges are appointed by the executive branch, exercising its discretion. Previously, aggrieved parties approached the Supreme Court by filing a Civil Leave to Appeal Petition (CPLA) against the high court decisions in the NAB cases. However, CPLAs were a type of appeal in criminal cases, especially in cases where convictions were upheld in higher courts, a lawyer explains. Experts question why the second appellate forum was given to the FCC rather than the Supreme Court, especially when FCC judges are government appointees. They also question whether the current administration intends to gradually replace the Supreme Court with the FCC. However, it is a fact that the current SC judges, especially the Chief Justice of Pakistan Yahya Afridi, have not made any serious effort to ensure the jurisdiction/powers of the Supreme Court. Faisal Siddiqi’s lawyer believes that the so-called second appeal is another silent and progressive attempt to destroy the criminal jurisdiction of the Supreme Court and control the destiny of politicians through NAB procedures.
"I am surprised at the tragic myopia of the PPP and the PML-N, sooner or later they will be victims of this second call," he adds. Former jurist Muhammad Waqar Rana says making a second appeal in NAB cases is apparently ultra vires the Constitution. "Section 185(2) states that if the High Court intervenes in the acquittal, the appeal must be taken to SC. This is unprecedented as no second appeal has been made in the last 200 years and is also a breach of Article 25 which only in certain cases gives a legal right to appeal." Rana said. Abdul Moiz Jaferii’s lawyer says this is a logical step toward dismantling the judiciary structure first envisioned by the 26th Amendment and cemented by the 27th.
"The NAB has been used for 25 years for political engineering purposes. No such arrangement would be complete without its engineering being managed by engineering courts. Although the Supreme Court is a shell of what it used to be and is supreme in all but name, it still cannot compete with the FCC, chosen entirely by the hand-picked, and so that is where all second appeals from the NAB must be directed." Jaferii said. Lawyer Asad Rahim Khan argues that no unity regime was possible without ensuring that dozens of liability cases magically disappear, and that no unity regime was possible without Justice Qazi Faez Isa and the Supreme Court’s disempowerment in favor of the FCC.
"It is normal that these two threads can now meet. What began with the decision passed by Qazi and his like-minded judges approving the specific mutilation of the NAB law, now ends with the FCC, a court with which our ruling parties are infinitely satisfied," says lawyer Asad Rahim Khan. However, Hafiz Ehsaan Ahmad Khokhar, defending the amendments to the NAB Act, says the amendments attempt to harmonize NAB procedures with the principles contained in the Code of Criminal Procedure, 1898, particularly Sections 497, 498 and 499, which authorize courts to grant bail.
"By clarifying the powers of accountability courts and high courts to grant bail in accordance with the general framework of criminal procedure, the amendments seek to ensure a balance between effective accountability and the constitutional guarantees of liberty and due process, as protected under Articles 9 and 10A of the constitution. Khokhar highlighted that a progressive aspect of the legislation is the introduction of Article 32A, which provides for a second appeal to the Federal Constitutional Court of Pakistan on questions of law. According to Khokhar, this reform aligns with the constitutional structure envisaged under Pakistan’s Twenty-seventh Constitutional Amendment, which provides for a specialized constitutional forum to decide important legal and constitutional issues. Within the constitutional framework – particularly Articles 175 and 185 – the interpretation of complex legal issues has traditionally been the responsibility of higher constitutional courts. Granting appellate jurisdiction to the Federal Constitutional Court in matters of liability would therefore promote uniformity in the interpretation of the law and strengthen the rule of law."
Khokhar further emphasized that the power to amend liability laws rests entirely with Parliament, which is constitutionally empowered to legislate in the public interest. The amendments to the National Accountability Bureau order – particularly those relating to jurisdictional thresholds, bail provisions, appellate review and institutional structure – represent an attempt to modernize Pakistan’s accountability framework while encouraging constructive constitutional debate on transparency, fairness and institutional independence."he adds. Waqas Ahmad’s lawyer believes that through recent FCC amendments and 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 supreme court.
"This results in a particular situation: a high court, although subordinate, can decide questions of law, but the Supreme Court faces limits. From the rent controller or magistrate to the Federal Constitutional Court, direct petitions can be filed throughout the judicial hierarchy, but the Supreme Court stands almost alone as the only instance where a direct petition cannot normally be filed."he adds. A PTI lawyer has expressed disappointment over the changes in the NAB Act.
"Clearly, these cases are tailor-made for Imran Khan as his release and bail have matured and there are no more pending cases. IHC will reject and files will be parked in FCC," Imran Khan’s lawyer Salman Safdar said and added that the scope of the appeal is never limited.
