"The father of the nation envisaged a sovereign Parliament," said Sajjad while reading out an extract of the speech. Chief Justice Iftikhar Muhammad Chaudhry promptly asked the counsel to also read out the remaining portion of the extract wherein Quaid had denounced corruption, bribery and other malpractices.
The CJ asked: "Have we followed other principles referred to by the father of the nation?" He added that all problems currently faced by the country were due to non-implementation of the Quaid's vision. "I do not think Quaid would have recognised Pakistan, as it is today," observed Justice Jawwad S. Khawaja.
Justice Tariq Pervaz observed that sovereignty belongs to people. In order to substantiate his point, the judge cited the example of reinstatement of deposed judges which was due to public pressure and not the outcome of the parliament. At that Justice Jawwad S. Khawaja asked Sajjad: "Can the will of Parliament be different from the will of the people?"
Justice Khalilur Rehman Ramday questioned whether powers of the parliament were absolute, and omnipotent. "We do believe that Judiciary is not a divine institution. It is a creation of the constitution as are other institutions. However, none of the institutions has absolute power," Justice Ramday observed.
Sajjad rejected the argument raised by the petitioners that only a constituent assembly could amend the constitution. He said the assembly of 1956 was the only constituent assembly while the rest were legislative in their character. Justice Ramday referred to the circumstances when constitution was abrogated in 1969 and said during the elections of 1970 people knew that a new constituent assembly was to be elected. It was the only directly elected constituent assembly and the earlier one was not.
Sajjad stated that in 1947 the constituent assembly took nine years to frame the constitution and it was the longest period taken by any assembly. India had outlined its constitution in two years, he added. In response Justice Ramday observed, in Pakistan, six assemblies were sent packing. There were certain hidden hands working against the governments. "We will not go into that controversy as to who was behind the delay in framing the constitution and what other reasons were present," Justice Ramday added. While dealing with the aspect of judicial review, Sajjad raised questions: What are the powers of the courts to examine a constitutional amendment? Does any court of law have the jurisdiction to hold judicial review of an amendment passed by a two-thirds majority?
Sajjad enumerated a few basic features of the constitution, namely sovereignty rests with Almighty Allah, it (Pakistan) is an Islamic state, fundamental rights, sovereignty of parliament according to the constitution and trichotomy of powers.
Justice Jawwad S. Khawja questioned whether trichotomy of powers was possible without the presence of an independent judiciary. Justice Ramday asked Sajjad: "Do you accept independence of judiciary as a basic feature of the constitution?"
"Why should we assume that government is against the independence of judiciary and why do we have this paranoia?", was the reply of Sajjad. In response, Justice Ramday observed that it was not an assumption. He referred to the circumstances prevailing prior to the February 2008 elections and said, judiciary was a core issue. Some people had taken oath for independence of judiciary and some had vowed to hoist national flags on the house of then deposed CJ Chaudhry. There were commitments made with regard to the judiciary. The 18th amendment has taken certain steps regarding the judiciary and we have to examine whether they are in aid of judiciary and in consonance with the earlier commitments or against it, he added.
When Waseem Sajjad showed reluctance to term the features as basic features, which he claimed was relevant to the Indian constitution, the Chief Justice referred to para 3 of report of the Parliamentary Committee on Constitutional Reforms (PCCR) and said it had accepted the basic features of the constitution. Sajjad Answered: "My issue is not with basic features but the question is whether they were not amendable?" The court, later on, postponed the hearing for Tuesday (today) when Sajjad would conclude his arguments.