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Birth Anniversary

On Syed Mahbub Murshed

Syed Mansoob
JANUARY 11 is the birth anniversary of the late Justice Syed Mahbub Murshed. He will be remembered for many things, particularly his fearless independence on the Bench and many landmark judgments, chiefly I on constitutional issues.
Consider the following cynical statement about justice made by one Thrasymachus in Plato's Republic: "I declare that justice is nothing else than that which is advantageous to the stronger.” To Plato (and Murshed) justice was the very antithesis of this rhetorical statement. Judges are meant to be independent, but do they always dare exercise this independence in the face of a powerful executive, and when their own personal advancement may be jeopardised by the exercise of strict independence and adherence to the right, however inconvenient? In other words, there tire many who behave in accordance with Thrasymachus' thinking, and a few who do not.
The small matter of judicial independence is of great import given the parlous state of the judiciary in contemporary Bangladesh, and the recent report by the Bangladesh Chapter of Transparency International arguing that corruption in the dispensation of justice is the most pressing concern in the overall agenda for controlling corruption in the country. That may be a concern with the lower judiciary; in the higher courts independence is paramount.
Justice Murshed is remembered for his judgements in Constitutional cases, such as the “Ministers” case, the “Pan" case and the “Basic Democracies" case. The latter two were overturned by the Supreme Court of Pakistan, but the first is perhaps best remembered and worth recalling. Those of a certain age and inclination will remember the “Ministers" case in 1963 for just that; it was about whether a cabinet minister could simultaneously be a legislator in the National Assembly.
But, there was a far greater issue at stake, and that concerned the permissibility of judicial review under the 1962 Constitution of Pakistan. As the late Professor Ralph Braibanti pointed out in a paper entided "Pakistan: Constitutional Issues” in 1964. Article 133 of Pakistan's 1962 Constitution virtually precluded judicial review, but Murshed's judgment in the “Ministers” case swept that impediment away. Indeed, Braibanti goes on to conclude: “In 1964, the judiciary showed itself to be a powerful force in the political system of Pakistan and that year may well be said to have been a year of great judicial decisions." And, Murshed's contribution to that success can well be argued to have been more than inconsiderable, as was what was to follow later in the “Pan” case regarding centre-province relations, and the "Basic Democracies" case, striking at the core of the inadequacies of the system at the time. Sadly, Pakistan's Supreme Court did not see fit to uphold his judgment in the “Pan” and "Basic Democracies" cases.
In tbe English legal tradition, until a few decades ago, there was no judicial review in any shape or form, and that country still lacks a written constitution. But there is a curious concept of “equity” in English law dating back to jurisdiction in the Court of Chancery in medieval times. Under this principle a dispute may be resolved by appealing to morality where there is no remedy in statute or common law. Later, we have grown to know "equity” to be based on the principles of natural law or justice. Justice Murshed applied this principle with great gusto on many occasions, such as with cases involving the requisitioning of property (particularly from religious minorities), and in the "Convocation” case.
There are many ways of remembering Justice Syed Mahbub Murshed, chief among which was his love of right, however inconvenient. John Kenneth Galbraith once stated: "To the adherents of the institutional truth there is nothing more inconvenient, nothing that so contributes to discomfort, than open, persistent articulate assertion of what is real.”
The writer is Professor of Economics, ISSG Hague and Birmingham University.