Dorab Patel’s Second Innings

With the passing away on 15 March of former Supreme Court judge Dorab Patel, Pakistan lost one of its most prominent and dedicated human rights activists. A slightly built figure, always conservatively dressed in suit and tie, he was an unlikely national hero with his Anglicised background and conservative, elitist upbringing as the son of a wealthy Zoroastrian businessman. The story of Justice Patel´s life as a human rights crusader, starting from the time he chose to retire on principle during the rule of military dictator Gen Ziaul Haq, is one through which Pakistan´s chequered history since that period could be told.

On 24 March 1981, he refused to take a fresh oath under the Provisional Constitutional Order (PCO), promulgated by Gen Zia, which not only negated the independence of the judiciary but also prolonged martial law by nullifying the effect of a judgement giving Gen Zia´s regime limited recognition. As a signatory to the judgement, Dorab Patel could not have taken the new oath, given his strict conscience.

A lesser man might have succumbed. The temptation certainly would have been great: due to seniority he was all set to take over as Chief Justice of Pakistan as soon as the incumbent retired the following year, and would have headed the apex court for seven years.

Justice Patel did not think twice about rebuffing Gen Zia, relates a fellow judge, Fakhruddin G. Ebrahim. As was the custom, the Chief Justice put the question first to the junior-most, at that time, Justice Ebrahim. "Not without apprehension I said, ´Sir, I am going home.´ The same question was put to my colleagues in the reverse order of seniority, and most of them were willing to take the oath," he recalls. "I walked up to Dorab Patel, who was seated close to me, and asked him in Gujrati, ´What is your decision?´ Promptly and without the least hesitation, he said, ´How can I take such
an oath!´."

The decision, taken without fanfare, marked a pivotal moment in Dorab Patel´s life – and for the human rights movement in Pakistan. For, after retiring, he helped found the country´s most respected human rights body, the Human Rights Commission of Pakistan (HRCP), in 1987. The organisation, in the words of Justice Ebrahim, "laid the foundation for a new chapter in Pakistan´s quest for providing dignity and respect for its citizens."

At the age of 72, Dorab Patel lost his year-long battle with leukemia – just a week before the HRCP´s Annual General Meeting on 23 March 1997. This was the first time he was absent from this major event and he was sorely missed.

It was in keeping with his secular, liberal tradition that a non-Parsi was allowed to sit with the body (during the funeral) -Asma Jahangir, the country´s most prominent woman advocate and activist, whom Justice Patel, a bachelor, referred to as "my daughter". For Ms Jahangir, who co-founded the HRCP with Justice Patel and whose name is synonymous in the public mind with the country´s human rights movement, he was a mentor. "He was one of the finest people I have known, a man of great integrity and principle," she says.

Justice Patel´s regard for civil liberties and human rights are expressed in several judgements. Prominent among them is the case of Ali Hussain vs the Government of Sindh, regarding the freedom of expression. The government had banned two newspapers, Mehran and Jasarat, for publishing something considered unacceptable under the Press and Publications Ordinance. The latter is an organ of the Jamat-e-Islami, Pakistan.

"Those who knew Justice Patel did not expect him to show any sympathy for the publishers or, at the very least, for the tone of the published material," recalls Sabihuddin Ahmed, a judge of the Sindh High Court who had worked closely with Justice Patel. "But what was important for him was the principle – the freedom of expression and the press, and he held the ban to be unlawful."

Another significant case was that of Yusuf Ali Khan, in which Justice Patel liberalised the law of contempt of court and departed from several precedents, including judgements of the House of Lords, to hold that an allegation of bias against a judge, if expressed in temperate language and without attempting to scandalise him or alleging ulterior motives, did not constitute contempt.

His dissenting judgement in the Z.A. Bhutto case came as no surprise, points out Mr Ahmed, referring to the case which ended with the hanging of former prime minister Zulfikar Ali Bhutto. "…But he promptly dismissed the review application because, under the law, the fact that some judges had disagreed with the majority was not a valid ground for review. The law had to prevail over personal opinion."

Born in Quetta in 1924, Dorab Patel lost his mother when he was a baby. He attended various boarding schools before graduating from Bombay University and obtaining a Bachelor´s Degree from the London School of Economics. He was called to the Bar from Lincoln´s Inn and began practising law in Karachi in the early 1950s. He was elected secretary of the High Court Bar in 1964, and was raised to the bench of the then West Pakistan High Court in 1967. Elevated to the Supreme Court in 1976, he resigned in 1981, and devoted the rest of his life to waging a crusade for the rights of the oppressed and downtrodden.

In 1990, he became the second Pakistani to be elected member of the exclusive International Commission of Jurists.

"A judge has rarely acquired such fame and recognition after retirement," says Sabihuddin Ahmed. "In his judicial career he was only a highly respected judge. In the second innings of his career, his crusading for human rights turned him into an international celebrity."