"Are you frightening us?" The Chief Justice Iftikhar Muhammad Chaudhry asked the counsel for the federation whether he was frightening the judges of the apex court in response to his revelation that as many as six constitutional amendments in India were introduced as a "retaliation" to the decisions rendered by Indian Supreme Court.
Advocate Ibrahim Satti, a member of the legal team engaged by the federation to defend 18th Constitutional Amendment, referred to Indian history of constitutional amendments and stated that out of 103 amendments, six were introduced "in order to nullify the decisions of the apex court".
While defending the amendment before 17-judge bench on Tuesday, Ibrahim Satti adopted some unusual arguments, which he later withdrew at the suggestion of the court. In a seemingly incorrect argument, Satti said, "Parliament has no power to amend the constitution in Pakistan." Later on he stated that constitutions in India and Pakistan are bereft of the 'will of the people' as they (the people) were never consulted in the process.
Justice Asif Saeed Khosa asked: "Are you really acting on the instructions of the federation?" How can federation say that constitution was made without the will of the people. "Don't insult the constitution in such a way," Justice Khosa added. Justice Saqib Nisar asked Satti whether he was conscious of Article 50 after the counsel had stated that Parliament could not amend the constitution. "This Parliament is ours and we are not here to weaken it. Mr Satti your arguments will give rise to new problems," observed Chief Justice Iftikhar Muhammad Chaudhry.
Addressing Satti, the Chief Justice observed "the existence of our (bench and bar) is linked with the existence of democracy in the country." Justice Jawwad S. Khawja observed that difference of opinion among the organs of state can be found in every country but that should not be taken to imply a "confrontation" between the organs.
Afterwards, Ibrahim Satti requested for withdrawal of arguments and the court subsequently allowed his request. To a question by Chief Justice Iftikhar Muhammad Chaudhry whether a Constitutional amendment can be subjected to judicial review, Satti said "no" it is forbidden. Constitutional amendment is outside the domain of the court, he added.
Satti, who himself had pleaded before former Justice Abdul Hameed Dogar in favour of the steps taken by the then President, Pervez Musharraf, on November 3, 2007 (known as Iqbal Tikka case), maintained that that was not a constitutional amendment therefore the then parliament could not validate them.
"You are saying it at this time," observed the Chief Justice. "Sir, at that time it was a matter of our bread and butter," was the reply of Ibrahim Satti. His answer gave birth to laughter in an otherwise sober court room number 1.
If it was not a constitutional amendment, then it was entirely a new dispensation of the constitution, observed Justice Tassdaq Hussain Jillani. Satti said there is no doubt that Pervaz Musharraf had distorted the constitution. However, it was not presented before the parliament.
Though not presented before the parliament of that time, each and every provision of the November 3, 2007 steps was followed by parliament, observed Justice Khalilur Rehman Ramday. The Chief Justice observed that November 3, 2007 steps were declared unconstitutional (in July 31, 2009 decision) as if they never existed.
In order to defend the amendment, Satti stated that amendment in the constitution is as necessary as is the fact that the law of nature demands change. Having kept the constitution static could lead to a ruthless revolution; therefore amendments are to be introduced according to the needs of the time, he added.
He said parliament had unfettered powers to amend the constitution whereas courts were debarred from adjudicating upon those amendments except on some procedural defects. In addition, Satti stated that an amendment can be challenged only when there is a dispute in application of that amendment. Satti will resume his arguments on Wednesday (today). Meanwhile, Sardar Ghazi, another counsel for the federation, concluded his arguments.