BOOK REVIEW : “TESTAMENT OF A LIBERAL”

1. Background
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(a) Title and Subject. “Testament of a Liberal” is a book that gives a
statement of the gradual development of Judicial systems in Pakistan after its
birth in 1947 and the challenges faced by the judiciary in difficult circumstances,
especially in the eras of various military rulers who each time abrogated the
constitution. He gives a detailed reference to different cases of National value in
relevance to the available Laws and the judgments therefore applied.

(b) Author. The author of the book, Dorab Patel (b.1924 Quetta), former
Chief Justice of Sindh High Court and human rights campaigner was a founding
member of the Asian Human Rights Commission (AHRC) in 1987. A Parsee by
faith, he rose up the ranks of the judiciary to become a Justice of the Supreme
Court in 1976. He was one of the judges who refused to give Bhutto sentence of
hanging, and resigned on principle after refusing to take an oath of allegiance to
Military ruler General Zia ul Haq in 1981. After retirement, he wrote an Urdu
book, Pakistan Mein Aamriat Aur Jajoon Ka Kirdar and had devoted the rest
of his life waging a crusade for the rights of the oppressed. In 1990, he became
the second Pakistani to be elected a member of the exclusive International
Commission of Jurists (ICJ). He handed over the script of this book to the
Publisher Oxford University Press, two months before his unfortunate death on
15 March 1997 due to Leukemia. After his death his grieved family, established
the Kidney Foundation of Pakistan. The book thus does not have a preface or an
introduction and was published without any changes. It consists of seven
chapters and is spread over 213 pages.

(c) Thesis. In this book author has endeavored to highlight the relevance
of Human Rights in Pakistan vis-à-vis practicing of laws and the problems faced
by judiciary in the process. Aim of this book is to enlighten the readers with grey
areas that still exist in the constitution, laws, ruling of judges and human rights
precincts in political process and the society, in due respect to Army’s role to
subjugate them and its adventures for power.

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2. Contents. It is a chronological account of the practice of Law and rulings by
the judiciary in context with repeated military leaders who forced the judiciary to
abide by their own Orders, setting constitutions aside. The book has following
portions:-

(a) The Making of the First Constitution. In first chapter of the book, the
writer conveys that civil and political rights like right to vote, freedom of speech,
freedom of Press, right to a fair trial, right of habeas corpus, were curtailed by the
British and the same 1935 constitution prevailed till 1956. A new constitution was
the responsibility of the constituent assembly which was busy in power plays and
making/ breaking of Provincial governments against the will of the people of that
regions, especially in, Balochistan and East Bengal, thus resulting in their own
detestation. The invention of Doctrine of necessity by the Supreme Court, to
support Governor General’s actions was also a product of this era.

(b) The Ayub Khan Era & 1962 Constitution. In 1958, with invitation of
President Major General Retired Iskandar Mirza to General Ayub Khan for
implying first Martial Law, Pakistan Army found a new high ground to conquer
own countrymen. The new Prime Power was applauded by the nation at the
onset but with passage of time under unjust 1962 constitution, subjugation of
Press & fundamental rights, law of contempt, legality of Jirga system, declaration
of Jamaat-e-Islami as illegal, undue harassment of opposition, the popularity of
the regime reduced. Then Gen Yahya Khan came into power through yet
another Marital Law along with legal framework empowering the President to
amend the constitution instead of constituent assembly. The judiciary again did
not resign giving the Martial Law validity. The non-transference of power to
Awami League and subjugation of East Pakistanis through Army crackdown
resulted in the dismemberment of Pakistan. Yahya left in shame with Bhutto as
new CMLA. A new era of political harassment, detentions, corruption, control of
Press and clash with judiciary had started.

(c) The 1973 Constitution & General Zia’s PCO. Bhutto’s government
ended with allegations of rigging by the opposition parties in 1977 elections.
During the trial of Bhutto, the writer quotes that in my question to Bhutto about
rigging, he replied by saying, “My Lord, when have the elections in Pakistan not
been rigged?” supplementing that it was limited to five to ten seats. The new

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 Martial law of General Zia started with promises and lies. In 1979, the Justices
learning the intentions of Gen Zia for suspending promised elections, suggested
the idea of article 212A in the constitution to uphold the Supreme Courts powers.
In 1981, the Provisional Constitution Order (PCO) was enforced abrogating the
constitution yet again. Establishment of Federal Shariat Courts and their
inconsistency with existing judiciary, non-party elections of 1985, restoration of
Fundamental rights in 1986 and subjugation of rival political parties such as PPP
are then deliberated.

(e) Democracy, Horse-Trading & Favoritism. In this portion relating to

the democracy period, the dissolution of PPP and Nawaz Sharif governments are
the deliberated in context with corruption, horse trading by the parties and
favoritism by the ones in power along-with the traditional clash of Presidential and
democratic form of Government. The writer says “When politics enter the portal
of a palace of justice, democracy, its cherished inmate, walks out the back door.”

(f) Basic Human rights Challenges. The last chapter relates to the
submission of the author towards subjugation of rights of women, minorities and
Press. He finalizes by saying “It is not the right of a judge to declare any
Fundamental right as illegal, be it for women to vote, or against non-muslims or
even that the parliamentary system of Government. In a Democracy, it is the right
of the people to decide.” He strongly recommends of the right of haebus corpus,
suo moto and judicial activism.

Evaluation

3. The book “Testament of a Liberal” is a depiction of life of the Author and his love
for his profession. He strongly advocates the rights of people, be it, voting for
representatives, living in a society, freedom of information and criticism, or even free
trade. He propagates that judges have also been responsible to support Military regimes
and taking sides in the power politics between presidential and democratic form of
Government. He gives relevance of each case where the better judgment could have
been used or the previous unjust ruling was sustained. Although his soft spot for Wali
Khan’s proposal of a loose federation or excessive plight of the PPP versus PML
(Nawaz), and extensive plea for non-muslim rights against Blasphemy are a bit
disagreeable but overall the book is an excellent reading.

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The article is a personal effort and point of view of Kashif Mehtab
(kashifmehtab@hotmail.com) and you may differ on it. Article is open for public use.