Tuesday, August 27, 2019

Being Sharifuddin

Today’s Pakistan has yet to revisit the lessons of the Quaid. The mark of Sharifuddin Pirzada, however, looms large and enduring.

Two years ago came the news that Syed Sharifuddin Pirzada, sixth, eighth, and tenth Attorney-General (AG) for Pakistan, was no more. For court reporters, it seemed the end of an era.

Because, with each court appearance by the three-time AG, had come three hard guarantees. One: something earthshaking was going on in Pakistan, whether we liked it or not. Two: another generalissimo was getting a Get-Out-of-Jail-Free card because Sharifuddin had long broken the board game. And three: dozens of columns would scream ‘Devil’s Advocate’.

And who could blame them? When the Church had to make saints from souls that had passed on, they would call up a Devil’s Advocate to expose the saint as a sinner. In this, Mr Pirzada more resembled God’s Advocate, the man the Church heard in his defence.

Because while Mr Pirzada may have bailed out a saint or two, the world best knows him for saving sinners. OJ Simpson’s team paled in comparison; this senior counsel could out-argue the angels, and win Nero paradise.

In a way, Sharifuddin never aged: there’s the shot of him beaming behind Messrs Jinnah and Gandhi as the Quaid’s secretary, hardly in his twenties. As General Musharraf’s counsel a lifetime later, the smile is darker (clarification: this article previously stated that the authenticity of the picture with the Quaid was disputed by Mr. Pirzada's opponents; be that as it may, this allegation was laid to rest with the official publication of the photograph in The Collected Works of Mahatma Gandhi, Vol. 67). 

“He can play any game by any rules, which he makes most of the time,” said the late columnist Cowasjee, who nicknamed him the Jadugar of Jeddah – a reference to Sharifuddin’s long romance with the Organization of Islamic Cooperation.

But few tags could capture him, as the field marshal found out. One hot August day in ‘67, Ayub Khan fumed in his diaries, ‘I am getting concerned about Mr Pirzada, our foreign minister…He is on the run in foreign countries most of the time and often purposelessly. Very suspicious by nature. Has hardly any communication with the staff. Chases small things most of the time and is frightened to take a definite stand on any issue. There is also some suspicion that he is not above telling a lie.’

Doubtless, Mr Pirzada didn’t do ‘definite stands’. He knew what Robert Penn Warren wrote in one of the finest novels ever written, “The law is like the pants you bought last year for a growing boy, but it is always this year and the seams are popped and the shankbone’s to the breeze. The law is always too short and too tight for growing humankind.”

Sharifuddin tailored his laws to the client that called on him; it’s just that his clients happened to wear medals and sashes, and were knee-deep in refiguring Pakistan’s legal soul. Throughout, Mr Pirzada was the doctor in demand, less surgeon than butcher, driving the stake in.

And very rarely out. When Asma Jahangir took martial law to court in Asma Jilani vs. Government of Punjab, Sharifuddin had shaken off Ayub and Yahya and was on the constitution’s side. The constitution won.

But by the time Nusrat Bhutto did it in ‘77, the Jadugar had switched back. Attorney-General Pirzada argued that “a people should not be allowed to perish for the sake of the constitution (but that the constitution exist for the welfare of the people).” The constitution lost.

“That was a very nice judgment,” he remembered, with trademark dryness. “That which otherwise is not lawful, necessity makes lawful,” the judgment thunders.

General Zia agreed and kept the barrister from Bombay High Court close at hand. When he sent Prime Minister Junejo home in 1988, he was reminded of the law mandating elections be held in 90 days. The general wasn’t worried. ‘Pirzada ke paas kuch masala hai,’ he said.

’88 became ’99, but Pervez Musharraf was on the phone with the same gent and his magic recipe the night of the coup. Musharraf summoned him to Islamabad at 2:30 am. Having danced with dictatorship thrice before, Sharifuddin said he needed his sleep, slept, and showed up in the afternoon. After a while, even subverting democracy gets old.

A rough tally then, since we’re all dizzy: Sharifuddin was against sacking the government in Maulvi Tamizuddin, but for sacking the government in Nusrat Bhutto. He was a martial lawyer for Yahya, but against his martial law in Asma Jilani. He drafted the PCO, supported the LFO, supported Article 58-2(b), and opposed the NRO. Sighed Sharifuddin once, “Accept me as I am, with warts, blemishes, briefcases and all. If it weren’t for Pakistan’s weak and corrupt governments, I wouldn’t be where I am today.”

That summation is a stretch. As a student of history, Sharifuddin was obsessed with both the Quaid-e-Azam as well as the Pakistan project. He archived Mr Jinnah’s speeches and the Muslim League’s foundational papers; those collections still remain the go-to source for historians today. Throughout, Mr Pirzada understood the ideas he was hired to upend – the sanctity of parliament, the independence of the judiciary, the need for continuity in a parliamentary democracy. He took a hammer to them anyway.

The culture we created may explain some of his success; individuals over institutions, stopgaps over service delivery, the path of least resistance in general. But undoing the things Sharifuddin Pirzada has done – and for sheer volume, he’s done more than most – won’t start today.

But it will start with Islamabad making civilian rule sacred. It will start when the establishment stops plugging itself into every possible policy void out there, to cheers from the other side. And it will start when expressions like ‘constitutionalism’ and ‘the rule of law’ extend beyond the law lecture room.

Until then, our jurisprudence will remain the same old minefield that Mr Pirzada exploited for half a century. New Sharifuddins have already arrived; the mantle of Mr Jinnah has yet to be taken up. In 1963, the departed gentleman had laughed, “Pakistan was, after all, a legal decision.”

But today’s Pakistan has yet to revisit the lessons of the Quaid. The mark of Sharifuddin Pirzada, however, looms large and enduring.

Khan is a lawyer. He tweets @AsadRahim

Below is a rejoinder by Muhammad Waqar Rana, the former Additional Attorney-General of Pakistan, to the article titled, 'Being Sharifuddin', published on August 27, 2019.

Being Sharifuddin: A Rejoinder

By Muhammad Waqar Rana

It seems that learned writer overlooked some facts before he got published 'Being Sharifuddin' about a man who is no more amongst us and cannot respond. It is only fair to the departed soul that he is defended against his detractors and facts are corrected for record. Hence, this rejoinder.

Mr Pirzada’s role as amicus curiae in the Asma Jillani case is well known (one of the two most important cases advancing constitutional rights at the Supreme Court of Pakistan). In the connected case, Mr Manzur Qadir was engaged by Mrs. Zarina Gauhar on the advice of Mr Pirzada. Mr Bhutto (civilian Chief Martial Law Administrator) punished Mr Pirzada by not allowing him to travel abroad (discussed in “Zulfiqar Ali Bhutto and Pakistan” by Rafi Raza page 157). The High Court of Sindh dismissed Mr Pirzada’s writ petition against the confiscation of his passport (PLD 1973 Karachi 132).

In the important constitutional case of Al Jihad Trust Case/ First Judges case (PLD 1996 SC 324), the Supreme Court ignored all other arguments and went along with Mr Pirzada’s arguments. From Ayub Khuhro’s case (PLD 1950 Sindh 49) to General Musharraf’s review case (PLD 2014 SC 585) for good 65 years there is hardly a constitutional case where he did not appear. How would his critics justify that the most independent and competent Supreme Court of 1960-1970) equally respected him and agreed with his arguments? Siraj Ul Haq Patwari, Fazal Qadir Chaudhary and Jamal Shah are the leading constitutional cases of Pakistan, all argued and won by late Mr Pirzada.

His detractors always point towards the Nusrat Bhutto case (validating Gen Zia’s takeover), as did the article but seldom mention some important aspects. The Supreme Court basically rejected A. K. Brohi’s arguments who represented the Federation of Pakistan, but unanimously agreed with Mr Pirzada’s (who was Attorney General). One of the judges who agreed was none other than that favorite of the “liberal intelligentsia” in Pakistan the late Dorab Patel. The allegation of changing the judgement and adding the power of amendment has also been laid to rest in Mehmood Achakzai’s case (PLD 1997 SC 426).

Mr Pirzada held high positions in all the military regimes but he was not the first jurist and will certainly not be the last one either. Others readily served the military regimes when called upon; and Mr Pirzada did not put forward Kelsen’s Pure Theory in Dosso's case. In fact he demolished it in Asma Jillani's case.

It was not just the military regimes but also civilian ones as well that engaged late Mr Pirzada. He appeared for the Federal Government headed Mian Nawaz Sharif in Emergency Case of 1998. He was regularly consulted by the civilian governments on important Foreign Policy matters (he was also appointed “ambassador at large” with the rank of federal minister under the regimes of both Prime Ministers Benazir Bhutto and Nawaz Sharif). Both of the Prime Ministers sent him as leader of high-level delegation to the UN several times. Moreover, he appeared in important constitutional cases for both of them. Sometimes even when their own legal counsel threatened to resign over this, as was the case when Benazir Bhutto accepted Attorney-General F. G. Ibrahim’s resignation when he protested over Mr Pirzada’s appearance rather than his own in the Sherpao case regarding the dissolution of the NWFP assembly. Examples of the high esteem given to him by the civilian regimes, could be judged by Nawaz Sharif awarding Pakistan’s highest award the Nishan-e-Imtiaz to him in1998. Late Mohtarama Benazir Bhutto reacting to Rafiq Tarar’s nomination as President by PML(N) had suggested names of Mr Pirzada and Wasim Sajjad. It was reported in the daily News of 17 November 1997.

It is worth noting that when Gohar Ayub was introducing Mr Pirzada to speak at the launching of his father’s diaries; he mentioned despite a few negative entries in the diaries (the ones his detractors always latch onto), he never heard his father say anything negative about Mr Pirzada. Further, there were many other entries about him in the diaries such as the one on from page 29: “Showed his (Prime Minister Wilson of Great Britain) happiness on the appointment of Mr Pirzada as Foreign Minister. Thought that he was a gentleman and a loyal person. Did well at the Prime Minister’s Conference (Commonwealth).” Not only did ALL subsequent (to Ayub) leaders of Pakistan held similar views on Mr Pirzada, there were many other world leaders as well (consider the high awards he was bestowed from France, Germany, South Korea, Jordan, Syria; and not to mention his unanimous election as Secretary General of the OIC in 1984, the highest diplomatic position ever attained by a Pakistani).

Late Asma Jehangir had this to say about Mr Pirzada; "He's a very skillful lawyer and we have no better authority on constitutional law". It was late Mr Pirzada who got her a seat in the courtroom during the proceedings of the case reported in her name.

D.N.Pritt, an English counsel of Moulvi Tamizuddin Khan, in his book, The Defence Accuses, said at page 48 "We set about the arduous work of preparing arguments; I had an admirable junior Syed Sharifuddin".