There are lots of people who have the misconception about how Pakistan treats religious Minorities. Dirab Patel is an example of a person who was a proud Pakistani and a progressive person.
A quest for civil liberty
Justice Dorab Patel devoted his whole life for the development of civil society in Pakistan. His death proved to be an irreparable loss
By Dr Syed Jaffar Ahmed
Tribute
Six years ago, in the shape of Justice Dorab Patel’s death on 15 March 1997, we lost a conscientious jurist, an enlightened thinker, and a courageous human being who remained a harbinger of the rule of law throughout his life.
Patel remained associated with the realm of law in different capacities–as interpreter of law, and as its guardian. His association with the machinery of law dominated the major part of his life, and throughout these years he stood for higher principles, and always sought guidance from his conscience. He left his post as a Senior Judge in the Supreme Court at a time when the highest post of the country’s judiciary could have been well in his sight.
Patel worked for the promotion of democratic values, civil liberties, and fundamental rights, especially the rights of women, children and minorities. He devoted his whole life for the development of civil society in Pakistan. His death proved to be an irreparable loss.
Patel was born in Quetta in 1924. He had his education in Bombay for the degree of MA and law. After that, he went to UK where he secured BSc from the London School of Economics and Bar-at-Law from Inner Temple. During his stay in Britain he got influenced by the ideas of democracy and liberalism.
It was the time when he acquired conviction in the supremacy of the people, parliamentary democracy, independent judiciary and equality of citizens before law. He, however, never advocated copying the British political and legal system in Pakistan uncritically. He rather suggested many alterations and modifications in view of the objective realities of Pakistan. His approach was truly objective and historical.
Patel started practicing law in Karachi in 1954 and earned a good name in the profession. He was appointed to the Karachi Bench of the West Pakistan High Court in 1967, and after the annulment of the One Unit, his services were allocated to the newly formed Sindh-Balochistan High Court. He progressed to the Supreme Court in 1976, where he was ranked the second senior most judge by 1979. There he also acted as the acting Chief Justice at times.
It was during this period when he heard some landmark cases in the history of Pakistan. In the appeal against the death sentence to Z A Bhutto by the Lahore High Court, the Supreme Court gave a divided verdict. Four judges upheld the High Court ruling, whereas three judges including Patel refused to do so. The Martial law authorities pressurised the judges in many ways but Patel never submitted.
Another historical case decided by him as a member of the Supreme Court in 1977 was the case of Begum Nusrat Bhutto. In this case the Supreme Court approved of the Martial Law despite being an unconstitutional measure.
Later in 1985, Patel explained why Martial Law was sanctioned by the Supreme Court Bench, which had declared that the 1973 Constitution was not abrogated but partially suspended under the ‘law of necessity’, and the higher courts had retained the power to review the Martial Law regulations, etc. To his utter disappointment, however, the PCO (Provisional Constitutional Order) was passed by the Chief Martial Law Administrator on 24 March 1981, which declared all Martial Law regulations legal and beyond judicial review. The PCO was intended to annul the 1973 Constitution. The order also required the judges of the higher courts to take fresh oath under the PCO. Patel was among those who refused to comply.
The judicial system of Pakistan has seen a few bold and conscientious judges like Patel. Such judges have managed to uphold the higher principles of the rule of law, but they could never change the system to ensure unobstructed delivery of justice. They have been forced to either wait for some opportunity to have their say, or to quit the system out of sheer guilt and helplessness. Patel quit the judiciary and devoted himself to the development of civil society as an alternative to realise his ideals of a just system.
Patel’s unparalleled contribution to the promotion of democracy, human rights, civil liberties, human dignity and political awareness among the masses are enviable achievements of his life, which made him a great champion of the civil liberties and a leader of civil society.
After leaving the bench, his vantage point changed. From viewing the society from the court he now began to view the court from the perspective of the masses’ deprivations and indignity. Looking at the judiciary from a distance gave him a broader and more realistic view of it.
Patel’s next passion and engagement came in the form of Human Rights Commission of Pakistan. He was the founder chairman of the HRCP, which emerged as an undaunted champion and advocate of the rights of the oppressed–women, minorities, and forced and bonded labourers in particular. He spoke and wrote against the torture cells of the waderas, terrorism, extra judicial killing etc.
Another marvelous contribution of Patel’s has been his writings and communications through interviews. Following the example of the great English political thinker-cum-pamphleteer Thomas Paine, he wrote numerous articles, which appeared in newspapers, and many pamphlets, which were mostly published by the HRCP. These writings presented a valuable analysis of politics and law in Pakistan.
When he focused on human rights in writing and action, he addressed a critical issue–the weaknesses of the society, which invite Martial Laws time and again. He tried to make people see their wrongs and faults causing violation of human rights. Thus, he observed:
“Human rights can be secured only if they are supported by public opinion, and public opinion for human rights exists only where there is a consciousness of human rights and tolerance. We have been ruled by military dictators because we lacked political consciousness and tolerance.”
Patel advocated democracy with firm conviction as a pre-requisite to human rights. He also wrote on repeated suspension of the constitution, democratic process, overthrowing of the elected governments and the involvement of the judiciary in such issues.
In May 1993, he wrote a five-installment article in the daily Dawn. He pointed out that the trouble with the 1973 Constitution was that it gave extraordinary powers to the Prime Minister, and later the 8th Amendment reversed the arrangement in favour of the President.
Article 58(2) b of the 8th Amendment was invoked to dissolve the assemblies mostly under the allegation of corruption, which has been there without any doubt. Though both the constitution and the political system need fundamental changes, yet closure or disruption of democratic process or institutions is no solution. His insight was clear and vivid on the issue of corruption, as he wrote:
“Corruption is an evil and a crime. It exists in most countries, and there was corruption in our governments between 1985 and 1990, but it can hardly stand comparison with the recent disclosures of corruption in Italy and Japan… There has been an enormous increase in crime and in corruption in many countries, but no democratic country has sought to solve these evils by empowering its President to dismiss elected governments.”
Patel was a strong opponent of separate electorates as a source of injustice to the minorities and the disadvantaged sections, apart from being an anti-thesis of the views of the Quaide Azam.
He also deliberated on the federal system of Pakistan and the over-centralisation imbibed in it. He declared the absence of an effective and viable federal system as a cardinal issue of Pakistan. He called for changing the dominance of the centre in the federation. He wrote:
“A federation cannot become a reality unless there is a genuine sharing of power between the federation and the federating units, and the balance has been tilted against the provinces in all our constitutions. Therefore, a curtailment of the powers of the federal legislature would be a step in the right direction because it would increase the power of the provincial legislatures.”
Patel considered provincial autonomy meaningless without financial autonomy. The constitutional provisions regarding emergency were vehemently criticised by him, since these allow the declaration of the state of emergency on trivial grounds, and allow using it against opponents of dictatorial regimes. He also rejected the philosophy and approach of the existing contempt of the court laws.
Patel engaged himself in multi-faceted activities to uphold the cause of human rights. With a brief review of his writings one cannot even guess the scope and impact of his thinking. These are mere glimpses of his enlightened mind. His writings are preserved and can guide us in our efforts to ameliorate the problems of the downtrodden, to build an independent, dignified, trustworthy judicial system and to strengthen the democratic process. He fought for justice and civil liberties–two essential pillars of human dignity.
As long as we have curbs on human dignity and liberty, we can seek guidance from Patel, as even one candle can show us the way in a dark night.