Introduction:
Through the much-talked-about 27th constitutional amendment the country found another legal forum: the Federal Constitution Court (FCC). With the institution of the FCC and drastic changes to Article 175, the Constitution envisaged the FCC to deal with certain constitutional and legal matters and, in doing so, bifurcated the jurisdiction of the Supreme Court (SC) and the FCC.
This bifurcation, ever since its inception, has created practical ambiguity in the jurisdiction of the two institutions. The SC recently took on the task of clearing this practical ambiguity in a recent NAB-related judgement, which highlights how a jurisdictional change on paper does not automatically guarantee a change in the long-standing habit of the litigants and legal professionals of approaching the previously concerned institution.
The New Jurisdictional Map:
Before the advent of the 27th Amendment, the SC acted as the apex court of the country and was the principal forum for all constitutional and appellate matters. However, the said amendment, specifically through the insertion of Articles 175B to 175H and the removal of Article 184, empowered the FCC and significantly altered the powers of the SC. The Constitution now provides a division whereby all the constitutional matters, references from the High Courts, and appeals expressly provided under the legal acts shall be dealt with by the FCC, while the SC exercises appellate jurisdiction in the situations envisaged under Article 185.
In its words, the Constitution is clear to read and incorporate. However, the problem arises when, in practical application, the map of jurisdiction etched in the minds of litigants and counsels suddenly shifts. This jurisdictional transition somehow leads to increased litigation. Where litigants continue to approach a forum according to the jurisdictional framework under which they have historically operated, that forum no longer possesses the power, which then leads to the transfer of the case to the constitutionally designated forum. Thus, rather than simply reducing the judicial load through the formation of a new forum, a new niche of litigation is born: litigation over who possesses the power to adjudicate?
When the Old Jurisdictional Map Meets the New One
In the case of Chairman National Accountability Bureau vs. Adeel Ahmed and others (PLD 2026 Supreme Court 424), the court encountered a unique yet significant issue. The case was related to NAB proceedings instituted before the 27th amendment was passed.
As the amendment ordered the transfer of the concerned cases to the FCC and subsequently section 32-A was inserted in the NAB ordinance in 2026, the case was eventually to be heard by the FCC. However, the issue in the case mainly concerned the ancillary proceedings and not the main case itself. The case was initially instituted in the SC, then the constitution was amended, and the case was supposed to be transferred to the FCC. All that is accepted, but what about the ancillary matters, i.e., matters not related to the actual case but a part of it, such as bail? Has the SC been completely deprived of adjudicating even ancillary matters where the underlying appellate jurisdiction has been constitutionally and statutorily allocated to the FCC? This unique angle of the case makes it worth discussing.
Arguments by the Counsels Appearing in Criminal Leave to Appeal:
The counsel appearing for NAB agitated that after the constitutional amendment, the SC no longer had jurisdiction to hear the matter. The Court then invited the learned Attorney General for assistance on this jurisdictional question. On the other hand, the counsels appearing in the Criminal Petitions for Leave to Appeal conceded that, after the amendment and conviction, the matter, according to the altered constitutional design and under Section 32-A of the NAB Ordinance, should be heard by the FCC. However, one of the counsels remained of the view that the SC should retain its power to hear ancillary matters of the case, particularly bail applications of under-trial prisoners, similar to the position under the Hudood Ordinance, even if it was no longer the final appellate court in NAB matters.
Bench’s Reasoning:
The Bench approached the issue starting with the constitutional allocation of jurisdiction. It began with article 175(2), highlighting that the constitution explicitly bars every court from assuming any jurisdiction that the constitution itself does not grant. It then proceeded to explain that the jurisdiction under 185 has been bifurcated by the recent amendment. The addition of words “subject to 175F” should be read as a qualification rather than an addition.
Regarding the NAB ordinance, the Bench observed that the NAB amendment was not a simple insertion of another procedural provision but an express designation of the second appellate forum. If second appeals in NAB matters were to be heard by the FCC, the question arose as to how the Supreme Court could retain jurisdiction over interim or ancillary relief arising from those same proceedings. Addressing counsel’s insistence that the Supreme Court retain such jurisdiction, the Bench observed:
If we entertain the bail petition, unless we convert the criminal petition into an appeal, we cannot grant bail, and if the law does not provide any appellate jurisdiction, how can we convert the petition into an appeal? Can we assume Suo Moto appellate jurisdiction?
The Bench further iterated that the constitutional provisions must be read harmoniously. A harmonious reading of articles 175F and 185 does not confer any appellate or ancillary power upon the SC where no such jurisdiction was constitutionally vested in it. The point was not whether the Court ought to exercise jurisdiction in the interests of public expectation, but whether the Constitution and the law empowered it to do so, as no matter what the audience expects the actor cannot move beyond the script. Rejecting any suggestion that judicial jurisdiction could be shaped by public sentiment or media expectations, the Court stated:
“The Courts cannot play to the gallery for gaining admiration and popularity for media commendations or public perception rather than sticking to the law and the constitution. The duty of the Court is to follow the law and not make decisions or assume the jurisdiction motivated by media mileage or public consumption. We are fully conscious and also sanguine that neither the Court should assume the jurisdiction not vested in it by law nor it should abdicate its jurisdiction so vested under the law, rather, the jurisdiction is decided by the Constitution and the law itself.”
Conclusion:
The importance of the bench’s view lies in its implicit recognition that a change in jurisdiction may cause difficulty for people in completely accepting the institution of a new appellate forum, hence the explanation. However, this difficulty in acceptance does not confer any power or jurisdiction on the court that has not been granted by the Constitution itself. This view takes us back to the original discussion: courts can only exercise the jurisdiction explicitly granted by the Constitution. Yet, that very Constitution can be altered overnight, but does that actually change the practices that people have been following since the independence of the country?
