Counsel for Balochistan High Court Bar Association, Fakhaurddin G. Ibrahim said that the court should decide the Reference on merit and assure independence of judiciary and strict adherence to the Constitution in the country.
He said that the courts have been deviating from the Constitution and validating military take-overs and illegal acts of the military rulers during the past 50 years due to which the nation has suffered immeasurably. He said that now is the "defining moment" of Pakistan and the nation is looking towards the Supreme Court passing in its crucial stage of history.
He argued that military governments are violation of Ideology of Pakistan and the "Objectives Resolution" which says "the State shall exercise its powers and authority through the chosen representatives of the people".
He said the functions of armed forces is not to rule the country but to defend Pakistan against external aggression or threat of war and, subject to law, act in aid of civil power when called upon to do so under directions of the Federal Government.
He said that during his stay in Balochistan, father of the nation, Quaid-e-Azam Mohammad Ali Jinnah had himself instructed the officers of the armed forces to take their oath of commission which forebode them to take part in politics.
Recalling some of the controversial judgements of the apex Court in the past Fakharuddin G. Ibrahim said that the court justified 1958 Martial Law of General Ayub Khan under "law of necessity"
He said in 1985 the apex court validated Restoration of Constitution Order (RCO) of General Ziaul Haq and gave blanket cover to all his illegal acts including discretionary powers. He said in 2002 holding of referendum by General Pervez Musharraf to elect himself as President of Pakistan was also challenged in the Supreme Court, but the court in its short order described the petition as "premature" and in the detailed judgement validated it knowing very well that President could not be elected through a Reference under Article 48 (6).
He pointed out that in Zafar Ali Shah case, the Supreme Court not only validated the military take over and ouster of an elected government in 1999, it also gave powers to General Pervez Musharraf to amend the Constitution, which is the sole domain of the legislature.
He contended that General Pervez Musharraf obtained a vote of confidence from the Assemblies not through free will but power of the gun there he is not an elected President under the Constitution and not entitled to any immunity.
Pointing out another case he said that the Watan Party challenged the Legal Framework Order of General Musharraf but the court dismissed the petition on the plea that the Watan Party had no locus standi.
Fakharuddin G. Ibrahim argued that military rulers have always considered themselves not answerable to any court, which is against the concept of rule of law and constitution. He concluded that if the Constitution was not implemented in letter and spirit, the international community would consider Pakistan as a failed State.
Syed Iftikhar Hussain Gilani, counsel for prominent politicians Abida Hussain and Fakhar Imam also submitted his arguments on the question of maintainability of the petitions. To save the court's time, Akram Sheikh adopted arguments of CJP counsel Aitzaz Ahsan and said he would address the court on merit. Counsel for the Pakistan Bar Counsel was on his legs when the court rose for the day.
During the hearing the presiding Judge of the Full court Justice Khalilur Rehman Ramday observed that the whole nation wants independence of the judiciary, but judges are also not above the law.
The 13-member full court headed by Justice Khalilur Rehman Ramday includes Justice Mohammad Nawaz Abbasi, Justice Faqir Mohammad Khokhar, , Justice Mian Shakirullah Jan, Justice M. Javed Buttar, Justice Tassaduq Hussain Jillani, Justice Sayed Saeed Asshad, Justice Nasirul Malik, Justice Raja Fayyaz Ahmad, Justice Chaudhry Ejaz Ahmad, Justice Sayed Jamshed Ali and two ad hoc judges, Justice Hamid Ali Mirza and Justice Ghulam Rabbani.