Barrister Baachaa’s interview

Interview with Barrister Baachaa: Confrontationist by nature

By Tahir Ali

(The News, August 2009)

Barrister Baachaa was born in 1941 in Cherat, a town of District Nowshehra in NWFP. He got merit scholarship in 4th. While a student of class 7 he represented Pakistan in the International Scouts Jamboree held in Canada in 1955.

In 1956, a student of class 9, he led students’ protest demonstrations against Israel, UK and France for their attack on Suez Canal for which  Egypt’s Jamal Nasir wrote him a letter of appreciation.

He did his matriculation in 1957 and intermediate in 1959. In the last year at Islamia College Peshawar he was elected the President of the students’ union, the Khyber Union. After graduation he got admission in the Khyber Law College Peshawar.

In 1961, for criticising the military dictator Ayub Khan at his face at the convocation of Peshawar University, warrant for his arrest was issued and therefore he managed to slip out of the country and lived in self-exile in Britain for 11 years. He was called to the bar by the Hon’ble Society of the Inner Temple and returned to Pakistan after the military dictatorship ended and democracy was restored in Pakistan.

1n 1992, he joined ANP at the specific request of Abdul Wali Khan but his opposition to Musharraf’s unconstitutional overthrow of a democratically elected government and the US invasion of Afghanistan in 2001 led to issue of a show-cause notices to him by the ANP which alleged that he had violated party discipline by criticising General Musharraf and the US invasion of a brotherly neighbouring Muslim country. His reply to the show-cause notice was simple and short: that he was just following the ANP’s manifesto. He was, however, expelled from the party but in 2008 he was persuaded by the party’s high command to return to its folds.

Barrister Baachaa opposed all military dictators from Geneal Ayub to General Musharraf. All used carrot and stick policy to win him over. Musharraf wrote him a flattering letter. He says he can’t compromise on constitutionalism, rule of law, democracy, and civil liberties. “Dictatorship is an insult to human dignity and intelligence,” he says. I believe in rule of law but with a human face; in an impartial judiciary that doesn’t legitimise an illegitimate dispensation. “No contempt is committed of a court that is contemptible and no contempt can be committed of a court that is not contemptible,” he adds.

He remained in the frontline of the lawyers movement and was jailed for 13 days on November 3, 2008.

TNS interviewed him recently. Excerpts follow.

The News on Sunday: You wrote letters to the editor frequently. What was the driving force for you in that?

Barrister Baachaa: I am a bit sensitive to social, political and constitutional development in the country. I get worried when I see constitution, law and country’s interests are ignored or compromised. In my letters I just wanted to convey my feelings. I wished to highlight the issues and point out the required steps. I also intended to promote dialogue within our society. I always tried to be as terse and to the point as possible. You know this at times started discussion that went on for weeks.

Also, I am anti-interventionist by nature. That is why I consider dictatorship as an insult to human dignity, intelligence and morality. Those who aid and abet dictatorship are the lowest of creatures in my view. I can’t help voicing my anger over it. I don’t like to impose my will and thoughts on others but won’t allow others doing that to me and to my nation.

TNS: Being a legal mind, how do you see the role of judiciary in the shaping of history of the country?

BB: It has been very disappointing indeed. Its role in fact was more disappointing than other institutions. If judiciary had shown courage against dictators, if it hadn’t legitimised it, if it had stood in the way of constitutional violations, the country’s history would have been something we would be proud of. From Justice Munir to Justice Irshad Hassan Khan, judiciary lent a helping hand to the dictators in the name of doctrine of necessity. I think judiciary is to blame for lack of democracy and accountability in the country. The bar always stood against dictators but it was let down by the bench. But luckily, judiciary now seems to have shed its previous negative role. It now seems committed to fulfil its obligations to the people, constitutions and the country. The new judiciary is determined to perform better. It is a beacon of hope for the country.

TNS: What are the achievements of the lawyer’s movement in your view?

BB: It has transformed our society. It got rid the country of Musharraf who wanted to stay at the top for long. He had said Benazir Bhutto and Nawaz Sharif had no role to play but the lawyers’ movement humiliated him and ended his role instead. It gave the political leadership a chance to strengthen democracy. It created constitutional awareness and now even the man in the street knows about what the leadership ought or not to do. It exposed dictatorship and its cronies. It changed public perceptions of judiciary and created goodwill for honourable judges and lawyers. The civil and military establishment learnt that constitutional deviations would not be accepted and tolerated by the bar, bench and the nation in future. Any dictator will think a hundred times before taking any such step again. It has put a halt to dictatorship.

I think it is also proved beyond doubt that the present constitution can’t defend itself. It failed to do so several times by now. We need a strong constitution which could defend itself and save the country from dictatorship. In its present shape, it is more of a constitution of a unitary state than of a federation- all powers are vested in the centre and provinces have no autonomy which is against the spirit of federation. I think matters between provincial and central governments and those of constitutional interpretation should be decided by the Federal Supreme Court (F SC) in Islamabad while the provinces should have their own Supreme Courts as the last courts of appeal to decide the civil and criminal cases. This would expedite the legal process, lessen workload of the SC, and give a sense of autonomy to provinces. In my view, the tribal belt should be developed into one or two provinces and made part of the federation like other provinces.

TNS: What about judicial activism? How much of it is permissible in parliamentary form of government?

BB: If we analyse our history, we can sum it up as a sorry tale of intrusion by institutions into the sphere of others-every institution neglected its own duties but always tried to transgress its limits. Look, for example, at the role of the army. It is trained for defence of the country but it took upon itself to govern it. This mentality has harmed us greatly. We can’t afford it any further.

You know excesses are committed against people by the executive and by the mighty against the weak. There are administrative weaknesses and shortcomings. Remedy is mostly not available. The leadership remains negligent. So, superior judiciary has got to take action in certain cases.

Judicial activism is desirable but with certain conditions: It is good if it means sensitivity to public grievances; it is bad if it becomes an alternative government. It must not result in clash between the different organs of the state. Any such clash means unlimited hardships for the people. Lawyers suffered great financial losses in the last two years. I myself could not earn a single penny in the period as we had decided not to attend the courts unless Chief Justice Chowdhry and other judges were restored.

As I said earlier I am an anti-interventionist. I believe in separation of powers with limited checks and balances. I want all institutions and persons to restrict their focus to their own domains. Parliament should make laws but should not serve as courts as it does in case of public accounts and other committees. Similarly, courts should avoid performing legislative functions. The executive must neither manipulate the parliament nor pressurise the judiciary to comply. I think the judiciary should first point out the issue to concerned quarters. It may ask for a time frame to resolve the problem. And if the government still fails to d the needful, then the judiciary can start legal proceedings against the concerned departments or officers.

TNS: Do you subscribe to the view that Pushtoons have been guilty of promoting conservatism and tribalism in the name of tradition?

BB: Yes. But the issue needs to be viewed in its real perspective. You have to consider the ground realities. Pushtoon society is basically a tribal society. They live and die with their clans and tribes. They simply can’t afford to go against their tribal traditions. Any violation of the tribal code of conduct by a certain individual or family risk them excommunication from, and loss of the support and security of, their clans and tribes, so vital in their cohesive society. If they go against tribal traditions, they have to leave their ancestral area and migrate elsewhere. But in their new abode they are considered outsiders and looked down upon if the cause of their banishment is known.

I wanted to clarify that they do so out of compulsion, not out of choice. It is something of a kind of ‘doctrine of necessity’. A Pushtoon has to abide by the code of conduct-Pushtoonwali- or else he is boycotted and denied the cover and security by his tribe.

Truly speaking, Pushtoons inherently are very tolerant, loving and liberal people. In rural areas, youngsters and elders assemble to enjoy themselves with music even today. You might have noticed that Pushtoon living outside the province or country have changed their life patterns because they could afford it. They have most often supported progressive nationalist forces. Khushal Khan Khattak, the great Pushtoons poet, has written lyrics hundreds of years ago that are considered even today ‘indecent’ by the puritans. Pashtoons have always lived peacefully for hundreds of years with Sikh, Hindu and other minorities in the province and the tribal belt. There haven’t been a single case of riots against minorities in their areas like the one that happened in Gojra. They also want education, development, prosperity, peace and due regard as human beings.

TNS: Don’t you think women have been denied their due rights by Pushtoons?

BB: It is yet another negative perception prevalent against them. Enmity and friendship are two important parts of Pushtoon society. These two revolve round females and are settled by them. All marriages are exclusively arranged by them. They play major roles in dispute resolutions between tribes and families. It is considered an unmanly behaviour to reject the request an offer for ceasefire or settlement of dispute made by female members of the opposite family. Women thereby help end enmities that may go on for hundred of years. A female is regarded highly as a sister, mother, and daughter. She enjoys respect and controls family affairs as wife.

There are may be stereotypes in certain areas and families which are unacceptable to a modern and civilised mind. But then each society has its specific norms which are part of its psyche. For example you can’t expect a Pushtoon to allow his females free intermingling with strangers. It is even the case in the entire rural and most urban areas in Pakistan. Other than this, women have equal rights. They get education, do jobs and businesses. Musarrat Hilali and Aesha Malik, two female advocates from the province, were in the forefront of lawyers’ movement.

The tribal-belt is most notorious in this regard. Yes there are some problems there. But we all are to blame for it. The state has failed to provide them basic facilities. There is not a single engineering, medical or technical college or university in the entire tribal belt. There is no hospital there worth the name. There are no facilities for general female education there either. The women there also want to develop and live with honour but are left at the mercy of condition.

TNS: You are said to be pro-Taliban. Aren’t you?

BB: There is a difference between Afghan Taliban and the extremists in Pakistan. I consider the former as fighting a war of independence from the US. They are, in a way, defending Pakistan’s nuclear arsenal, which is the ultimate target of the US. Defeat in Afghanistan at the hands of Taliban will throw the US out of this region, thereby guaranteeing survival of Pakistan’s defence capabilities. The activities of the extremists in Pakistan, on the other hand, have created a sense of mistrust among Pakistanis in general against the word ’Taliban’, which serves American interest.. I am a strong anti-interventionist throughout my life. I am against any foreign involvement in Afghanistan. I think Afghans have suffered a lot for no fault of theirs. They didn’t take any part in the 9/11 attacks on the American cities. Most of them don’t even know where New York or Pentagon is. The American invasion of Afghanistan is against all norms of humanity, the barbaric killing of innocent Afghan people finds no parallel in human history. Before American invasion of Afghanistan there was no terrorism in this region; it is the US that brought terrorists to the region. It is the US presence that gives birth to more and more terrorists. Peace will return to Afghanistan and Pakistan only and only when the US and its allies leave Afghanistan. The fear of  power-vacuum created by such departure can be avoided by stationing in Afghanistan forces from the moderate Muslim countries, such as Indonesia, Malaysia, Jordon and others till such time that a sovereign Afghan government is elected by the Afghans.

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About Tahir Ali Khan
I am an academic, freelance columnist, writer and a social worker.

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