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People & Society

The curious case of Shahid Orakzai

Updated 16 Feb, 2018 10:07pm
Shahid Orakzai with former Senator Safdar Abbasi
Shahid Orakzai with former Senator Safdar Abbasi

The air in the courtroom is heavy with the stale smell of age - old books, ancient wood panels, primordial dust - and something else: anticipation. Amid restless shuffling of papers and bodies, everyone of people. The time for the hearing waits for the judges. The room is already past its scheduled hour.

In the pews sits Shahid Orakzai, the petitioner who has come all the way from Rawalpindi to be at the Peshawar High Court that day. This his third trip in less than three months. He is seeking the court's ruling on a First Information Report (FIR) about the December 2014 murder of more than 140 children at Peshawar's Army Public School (APS). He is questioning a police officer's authority to register a single FIR for multiple murders. Now and then he licks his finger to flick his papers absent-mindedly. In the gloom of the courtroom, he looks pale, his eyes hooded like an ageing Chinese sage.

"I have taken the police to the court [over the school massacre] not to delude the parents but to pursue the murders," Orakzai tells me on a Sunday afternoon as we sit on the roof of his house in Chaldala, a garrison-cum-residential area in Rawalpindi, not far from the Pakistan Army's General Headquarters (GHQ). The local branch of APS can be seen just across the road.

Orakzai introduces himself as a freelance journalist but amid the court and media circles he is better known as a serial petitioner. Since the early 1990s, he has filed hundreds of petitions on subjects most others wouldn't even touch. A judge, only half in jest, says the total count of his petitions is fit for the Guinness Book of World Records.

In all these petitions, Orakzai is always his own counsel. He is not a lawyer but when he walks to the lectern, it is with the ease of someone treading familiar territory, his body language betraying an ego hom out of command over the Constitution. This makes Orakzai a legal force to be reckoned with - or a judicial nuisance, if one goes by how most judges and lawyers see him. ''Nobody knows the Constitution better than I do," he says. And he believes that his command originares from his knowledge of what he calls the source of the constitution - the Quran When he is not running an errand or attending to a family matter or a conflict in his clan - his relatives seek his counsel like a savant's - he is writing the next petition, his middle finger calloused from endless scribbling.

In the crowded cafeteria at the Peshawar High Court, Orakzai speaks to a group of people who form part of his fan following. "We [follow] a culture of candlelit vigils when we should be seeking investigation," he says, growing reflective. "We are given death counts in military strikes like scores in a cricket game to gloat over."

His critique of the institutions of the state is always scathing and sweeping.

Oakzai describes himself as a public interest litigator. Most of his petitions, however, have more ideological and political elements than the ones related to people's well-being. They are always about the courts or the politicians, or the government or the army. They are never about the rise in flour price, says a court reporter in Peshawar.

Among his recent petitions is one against the passage of the 21st Amendment to the Constitution that has set up military courts to try terrorism suspects. He has sought Prime Minister Nawaz Sharif's disqualification - and that of his brother Shahbaz Sharif, the chief minister of Punjab - to hold public office for their involvement in storming the Supreme Court building in 1997; in 2007, he filed a petition that challenged the appointment of Rana Bhagwandas as the acting chief justice of Pakistan (he contended that no non­ Muslim could hold that post); in 2013, Orakzai pleaded to the court to restrain then President Asif Ali Zardari and General (retd) Ashfaq Pervez Kayani from travelling abroad for their alleged concealment of intelligence from the army during the 2011 American operation against Osama bin Laden; in 2014, he sought restrictions on the "freedom of movement'' of General (retd) Pervez Musharraf to ensure his presence in the country during his trial for high treason.

Far from making him a high-minded public-spirited activist, these petitions have made him a controversial figure. Worse, he is seen as an 'agent' of the intelligence agencies, out to delegitimise democracy - an image he shares with another inveterate petitioner, the Karachi-based Maulvi Iqbal Haider.

"Projecting political issues in the court by saying A is guilty, B is a thief and C is not an honest person is not public interest litigation," says Qazi Anwar, a former judge and a senior lawyer based in Peshawar. "It can prove someone guilty and they will be punished, but how will that solve the people's problems?"

Asma Jahangir, the lawyer who is among the founders of the independent Human Rights Commission of Pakistan, points to a judgment by the Indian Supreme Court that has defined the limits of public interest litigation so that professional litigants don't misuse it. "You can't use public interest litigation to play power games," she says.

Orakzai likes to point out that he has filed many petitions which do not fit into the power game. Some of them, after all, have been heard by the superior courts in the country and decided in his favour, he says. Yet, his critics ask, how much of a difference has he made to the lives of the people whose interests he claims to be championing?

Not that public interest litigation is always futile. In 2009, the Supreme Court ruled that transgender people have the right to be registered as transgender voters. The ruling came on a public interest petition filed by Dr Aslam Khaki, a jurist and human rights activist. More recently, hearing a public interest petition, the Lahore High Court stopped the construction of a signal-free traffic corridor.

The history of public interest litigation in Pakistan goes as far back as early 1972 when the famous Asma Jilani versus the Government Punjab (PLD 1972 SC 139) case paved the way for the restoration of democracy.

Due to judicial pronouncements in that case, Zulfikar Ali Bhutto had to put an end to the martial law administration he was heading. In 1988, Benazir Bhutto versus the Federation of Pakistan (PLD 1988 SC 416) case laid down principles for the SC to exercise power and jurisdiction under Article 184(3) of the Constitution which provides for public interest litigation.

The article provides that the Supreme Court "shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights ... is involved have the power to make an order". While almost all jurists agree that this jurisdiction of the court has unlimited scope for public interest litigation, many also point out that it does not confer unlimited powers on the judges. As stated in Article 184 (2), the court can only issue a "declaratory decree" on public interest petitions for the government to act, says Saeeduz Zaman Siddiqui, a former chief justice of Pakistan. It cannot indict or convict anyone in those cases, he adds.

Public interest litigation has evolved as a corollary of the evolution of the state, or lack thereof. Given many weaknesses within the institutions of the state, jurists point out, it is natural that people start looking towards one institution that they see as functioning better than others do. "Judicial activism emerged as a statement of frustration with political structures and consciousness on part of the judiciary that it can set things right," says Feisal H Naqvi, an Supreme Court lawyer based in Lahore. "In Pakistan, the trend prospered in the post-Zia era when the judiciary, after having supported Zia, tried to redeem itself by taking up human rights concerns."

In 1990, in the case of Darshan Masih versus The State (PLD 1990SC 513), often cited as the touchstone for public interest litigation in the country, Chief Justice Afzal Zullah took cognisance of violation of fundamental rights of brick-kiln bonded labourers under Article 184 (3) and set them free. In another landmark case in 1994 - Shehla Zia versus Wapda (PLD 1994 SC 690)- the Supreme Court ruled that high-voltage transmission lines passing through residential areas posed a threat to the health of citizens and should, therefore, be transferred elsewhere.

In the nineties, the Supreme Court under Chief Justice lftikhar Chaudhry took an unprecedented interest in public interest litigation. Chaudhry set up a human rights cell at the apex courti between 2009 and 2013, at the climax of his tenure at the apex court, this cell was receiving scores of applications every day. Many of them later became petitions against political parties, senior government functionaries, even provincial and federal ministers and governments.

Naqvi argues the innumerable public interest petitions heard by the Supreme Court in recent years "have given rise to all sorts of expectations", mostly that the judges will"set things right''. People rush to the court every time something goes wrong.

Illustration by Marium Ali
Illustration by Marium Ali

Siddiqui finds this phenomenon undesirable. "The Supreme Court is the forum of last resort whose decision is final." If it starts directly taking up individual cases for adjudication then that "will take away the right to appeal [of the accused]," he argues. "That is why article 184 (3) should be used sparingly."

Many jurists say the Supreme Court under Chaudhry and the media came together in a "toxic combination" to popularise public interest litigation:the media would look for scandals and the court would oblige. The trend, these jurists say, encouraged those with personal and political agendas to use courts for vested interests. "People like Shahid Orakzai or Maulvi Haider Iqbal can now stand up, claiming to sort out things for the people," says a lawyer based in Lahore. One wonders if they are genuinely motivated by public interest or by something else, he adds.

Though most lawyers point out that public interest litigation can be a force for good, it also gives chronic litigants a certain nuisance value: "If one of your petitions is accepted for hearing, then you can go around threatening anyone with a lawsuit," says the lawyer from Lahore.

What sets apart Orakzai from other public interest litigants is his approach to interpreting social justice and jurisprudence in the light of Islamic principles .He believes divine law be supreme -one that provides solutions to the thorny issues of all times. He has often disrupted court proceedings by insisting that the hearing be conducted in light of Quranic teachings.

This mixing of the Law of the Land with Divine Law is also found in the petitions he files. The one about the school massacre is built on sections 154 and 156 of the Criminal Procedure Code (CrPC) -which deal with FIR registration and investigation of a murder - and Quranic injunctions which say "every murder shall be prosecuted as a single crime/offence" and "the guardian of the deceased shall have the command of the prosecution." The petition is built on the premise that the police officer who registered a single FIR has violated both the CrPC and the Quranic precepts.

On the day I first meet him, we sit in his house -a neglected two-story building with peeling paint, the skeleton of a car on flat tyres abandoned in the porch. A picture of his father, Sardar Khan Orakzai, with the Quran in his lap, is hanging in the drawing room where the interiors belie the exteriors. Neatly maintained, with heavy furniture, big lamps and glass cabinets with crystal decorations, the room also triples as a living room and a study, with a rack by the door piled with files - his petitions.

Orakzai speaks of his father with veneration bordering on worship. A look of deep anguish on his face turns into ecstasy in the matter of a single sentence containing the word father. Somewhere in the conversation, it strikes me that he is not talking about his biological father, not even some dead ancestor.

His family belongs to Hangu in Khyber Pakhtunkhwa. His father, a religious man by most accounts, retired as a major from the army. Orakzai, however, traces his roots to somewhere else. Orakzais, the Pakhtun tribe he belongs to, are the descendants of a lost tribe of Israel, he says. The word 'wralc' means 'lost' in Pashto and 'zai' denotes 'son of', he explains. That is where he thinks he belongs - to Israelites. That makes Prophet Ibrahim his grandfather and Prophet Yaqoob his father.

The relationship comes with a great responsibility: to unify the progeny of Ibrahim now divided into the followers of three religions - Islam, Christianity and Judaism. He has spent 50 years studying the biographies and teachings of different prophets. He was 16 when he picked up the Bible, he says, much to the amusement of his immediate family, "to understand the legacy of my father".

Orakzai says he is "compelled to think about all these concerns" because no one else does. He likes to refer to himself as "Dr Orakzai" who doesn't address the ailments of the body, but those of the heart and mind.

There was a time when Orakzai did not know about his roots. Once, he says, he was a hardcore communist even though he later contradicts himself, saying he was always on the side of Islam. He grew up in a family where "the dinner table was the topmost democratic institution in the world - the House of Commons ranks nowhere in relation to our dining table which offered food for the body as well as food for thought''. That was in the 1960s, and the "communist fever ran high". "Being progressive was the call of the hour," he says of the time. "You were either a progressive or a reactionary." Back then, he says, he did not know the difference between the two but "knew the difference between haq (right) and batil (wrong) and it appeared socialism was haq and capitalism batil. I was with the underdog."

In keeping with the family tradition, his three elder brothers went to the Military College Jhelum. subsequently joining the army and the air force. Orakzai also joined the army but left after spending two years at the military academy in Kakul. One of his course mates says he couldn't take the rigours of military training and was expelled.

"I couldn't get along," says Orakzai. "They wanted an automaton but I was a thinking person. They think five feet seven inches make a soldier. I think [brains do]."

After he had left the army, his father wanted him to become a lawyer. He didn't. "Had I studied law, I would have swollen pockets [because of] my capability for reasoning," he says and then asks, "Do you think money is worth reasoning for?" For two years, he taught at a college in Lahore before joining the Associated Press of Pakistan (APP), the state news agency, in the early 1970s as an apprentice reporter. He made rapid progress, soon becoming a reporter for the now defunct daily Sun. "I would go to Parliament to cover the making of the Constitution,'' he says.

While he was still at APP, he also started working as a stringer for the French news agency, Reuters, for which he covered Zulfikar Ali Bhutto's trial and hanging. "I regret both the crime and the punishment," he says, cryptically suggesting that they were both politically motivated. Since those early days, his life has taken many twists and turns, yet he insists that his primary professional identity is that of a journalist. A journalist, he says, understands the dynamics and contradictions of the society because he has observed it closely.

In 1982, he left for Saudi Arabia where he joined the Arab News, a newspaper owned by the Saudi royal family. "There was no room for freedom of expression there,'' he tells me. So Orakzai switched to industrial photography, which he kept doing the next seven years. Then came the Persian Gulf War which changed everything for him.

He soon started writing a column for the Peshawar-based English daily, the Frontier Post. The column had an overtly religious title - "Face the Kaaba" - emphasising the need for Muslims to look towards the Kaaba than anywhere else for guidance and support. "If there is a centre for peace in the world, it cannot be in Manhattan," says Orakzai, bursting into laughter over his observation.

His Kaaba columns, according to one senior journalist, were more ideological than journalistic. He wrote about 22 of those before returning to Pakistan and joining the Frontier Post for a short time. Faizullah Jan, a professor of journalism who at the time was working with the newspaper's editorial desk, describes Orakzai as someone with original ideas. "I remember a picture of George Bush Senior visiting Saudi Arabia after the Gulf War. Orakzai captioned it as 'Royal guest with the loyal king,'" says Jan. "In another instance, when an American Congressman visited the Khyber Pass and was photographed looking at Afghanistan through binoculars, Orakzai wrote, 'Searching for peace in Afghanistan'."

Another journalist who worked with Orakzai in the Islamabad bureau of the Frontier Post in the 1990s, says he likes Orakzai the journalist better than Orakzai the public litigant. "He wrote against the government, the army chief and the foreign office at a time when no one could."

After leaving the Frontier Post, he went on to join The Muslim when Altaf Gauhar was its editor. Over the last decade, he has written intermittently for the Daily Times and Islamabad -based news magazine the Pulse.

One of his former colleagues at APP says Orakzai was a Pakhtun nationalist, transformed into an Arab nationalist in Saudi Arabia.

"I was never a Pakhtun nationalist," Orakzai counters, saying he speaks Urdu at home. "[Nationalism] is a narrow mindset that is absolutely blank about its own origin. It does not know the roots of its arrogance. Everyone asserts ethnicity and identity, not morality." And then he points to what seems the biggest flaw of nationalism to him: "One who worships the nation does not worship God."

During his stint with the Frontier Post, the Supreme Court sent him to jail for contempt of court. It started with a tangle between a general and the judges.

Addressing journalists at the Lahore Press Club on February 4, 1993, former Chief of Army Staff General (retd) Mirza Aslam Beg revealed that in 1988 he had advised the Supreme Court not to restore the deposed government of Prime Minister Muhammad Khan Junejo, instead urging the judges to allow the general elections to go ahead. Immediately after Beg's address, the Supreme Courtissued a contempt of court notice to him, accusing him of insulting the judiciary. While the Supreme Court was hearing the case on March 1, 1993, Orakzai, there as a reporter, disrupted the proceedings when Beg said the press had misquoted him. When Orakzai refused to observe the court's decorum, Chief Justice Afzal Zullah sentenced him to three months in prison "or till he purges himself of the contempt".

The issue of contempt of court appears again and again in the documents pertaining to the petitions. He has been fined several times for "wasting the court's time". In one judgment in 2008, the Lahore High Court said: "[Orakzai] started with irrelevant matters. He was stopped to refer to any such matter which has no nexus with the determination of the point involved. He became enraged and started misbehaving. It is not the first time that he has behaved in this manner. His conduct has always been to browbeat the courts in such like matters. He is in the habit of remaining in attendance in all such cases in which he has no interest nor has he ever been a party to such proceedings." The court stopped him from entering its premises for one month. ''This is only a preventive order so that Shahid Orakzai does not repeat the same offensive conduct in future," the court ordered. He has been similarly prevented from entering the Supreme Court in the past.

His short temper and defiance make the justices resentful. He speaks in the court with his chin up as he holds both sides of the lectern with stretched arms, his body pushed back- a posture that could be construed as confidence of a seasoned orator or arrogance bordering on righteousness, his lower lip sticking out in contempt.

In 2010, while arguing against some provisions of the 18th "Amendment, he scandalised a 17-m.ember bench of the Supreme Court headed by the then Chief Justice Iftikhar Chaudhry when he tossed a copy of the Constitution on to the floor saying, "If I am drowning and have to clutch at something for life, it will be the Quran, not the Constitution." When it comes to upsetting the court with his insolence, Orakzai has made a name for himself. Members of the judiciary remember him more for that than for any legal or judicial points contained in his petitions. No amount of censure, even fines, seems to tame him though.

His is widely reported petition for registering a murder case against Nawaz Sharif is am ong the first of Orakzai's cases which mark his transition to a serial petitioner. The incidents leading up to that petition are intriguing.

In the run-up to the 1993 general elections, he was a media consultant for Nawaz Sharif, helping him win the loyalty of seven members of the National Assembly from the Federally Administered Tribal Areas (Fata) through a "verbal" deal. Sharif promised to pay the Fata legislators 17.5 million rupees through Orakzai. The deal, however, went sour when Sharif paid only 10.05 million rupees and refused to pay more after the rivalling Pakistan Peoples Party (PPP) won the elections. Orakzai went to the court, revealing his involvement in horse­ trading on Sharif's behalf.

In 1999, Orakzai filed a petition at the Supreme Court seeking the registration of a case against Sharif for the murder of his elder brother, Khalid Saeed, who had been killed near Kohat in 1997. Orakzai alleged that Sharif had planned Saeed's murder because of public embarrassment he had to face over the "deal" with Fata legislators. Orakzai accused Jawed Ibrahim Paracha, then a member of the National Assembly belonging to the Pakistan Muslim League-Nawaz (PMLN) and elected from Kohat, of having committed the murder. The PMLN termed the case "politically motivated" when the Supreme Court finally took it up for hearing in 2009. The party accused Orakzai of working for intelligence agencies.

The case assumed an additional aura of secrecy with the murder of a former intelligence officer, Khalid Khawaja, who was a key witness in it. He had told the media in 2004 that he did not see Orakzai's case against Sharif as "baseless". In 2009, Khawaja was killed in North Waziristan by a militant group that called itself Asian Tigers. Orakzai went to the court again, accusing Paracha of having killed Khawaja, too.

In December 2014, Orakzai was put behind bars for 24 hours by a Peshawar High Court bench after he failed to prove his allegations that Sharif had "manoeuvred" to transfer his brother's murder case to a new bench just when it was going to give a verdict in Orakzai's favour. "The murder of his brother set him on a course to chronic litigation," says a journalist who worked with Orakzai at the Frontier Post in Peshawar.

His former colleague from Islamabad says Orakzai has been "de-tracked". If you are someone with a profile in the treacherous place called Islamabad, there are all these forces connected to the power system here which won't let you act independently, he says. "Ambassadors, generals, politicians and intelligence agencies become active to control you. When you blame the prime minister of the country for murder, it reflects the typical politics of Islamabad where people make you only to break you."

Orakzai is an intense man, hard to pin down and reluctant to talk about himself. One of his former colleagues says that "he loses interest the moment you talk about him." Ask Orakzai and he shrugs: "Self-publicity is demeaning."

He is quick to laugh, is kind and clearly brilliant -even his detractors concede that. While he does talk amicably, even endearingly, there are certain parts of his past that remain shadowy and subject to speculation. "To understand a complex phenomenon, one must burn some brain sugar. It is easy to label a complex phenomenon than try and figure it out," is how he responds when asked about some of the controversial details of his life. When I ask him if I could photograph him for this profile, his refusal is as puzzling as it is irrevocable. "Lack of a picture will keep people guessing about me than reaching a conclusion."

Many who know him are afraid to talk about him and when they do, they don't want to be named. Almost every one of these people speaks of his connections with intelligence agencies. Asked why people are afraid of him, he laughs that belly-deep laughter of his. "Because I don't forgive a slight." Orakzai today is a pale shadow of what he was in the early 1990s. It was a time when the military was learning to cohabit with democrats, a time of high political intrigue. The post-Zia establishment, according to an Islamabad-based political commentator, was very keen on influencing public perception of politicians through propaganda that showed them as corrupt and inefficient.

"One way to do that was through the judiciary," says a journalist working in Islamabad. The other way was to use public interest litigants. "Enter Orakzai," he says. "I remember the Supreme Court hearing one of his petitions. It was over drinking by a politician. Why didn't he go to a district court to file a case? Because going to the superior courts brought greater publicity [leading to] a media trial of politicians," says the journalist. He describes Orakzai as the establishment's "original template to whip up popular sentiment against politicians through judicial processes".

When a source in a premier intelligence agency says Orakzai is too whimsical and unpredictable for the establishment to handle, that only adds to the mystery man Orakzai has become. He seems to value his freedom of action more than anything else. He, for instance, claims having advised Benazir Bhutto on how to "tackle" the troika of Sharif, Farooq Leghari and Justice Sajjad Ali Shah who were out to overthrow her second government (1993-1996). But when Bhutto invited him to join the PPP, he refused. That would have reduced him"to a cog in the party", he says.

Given that decisions on most of his petitions are pending, what hope does he have to realise his bigger vision -of a world that follows the Law of the Lord? "Hope is a bet against time often lost. I don't deal in hope," he says. "Mine is a sense of purpose that doesn't depend on the outcome of one case or another. I know what I am after."

He seems to have too grand a self-image to be able to work for anyone but himself. Or, perhaps, he is playing the 'useful' proxy role to the hilt. As a lawyer based in Lahore puts it, "He appears a lone wolf when he may be covering for the whole pack."

The article was originally published in the May 2015 issue of the Herald.