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Birth Anniversary

The times of Justice Murshed

Justice A.M.Mahmuder Rahman
JUSTICE Murshed was born on January 11,1911 in Calcutta in a distinguished Muslim family of Bengal. He passed the matriculation examination in 1926 securing first position among the students who appeared in the examination from Rajshahi Division of British Bengal. He passed BA examination with honours in Economics from the Presidency College in Calcutta in 1930, MA in 1932 and obtained LLB degree from Calcutta University in 1933 securing first class.
He enrolled himself as an advocate of the High Court of Indicatory at Fort William in Bengal in 1934 and within a short span of time he discontinued his legal profession and went to England to study for the Bar. He was called to the Bar at Lincoln's Inn in 1939. He was the lone student from British India to secure honours in the Bar at Law final examination in that year. In England, he came in touch with Prof. Harold Laski of the London School of Economics, Mr. Krishna Menon.
On his return from England he took up legal profession and within no time made his mark as a lawyer in the Calcutta High Court. He was Senior Government Counsel for Improvement Tribunals, Calcutta Improvement TYust. He was also associated with those who tried to form a coalition ministry in Bengal composed of representatives of the Congress and the Proja Party. He was also associated with the progressive Muslims who formed the Muslim Majlish with the purpose of bridging the Hindu-Muslim divide.
Justice Murshed joined those who actively supported the proposal of the Cabinet Mission led by Sir Stafford Cripps. It proposed autonomous Muslim groups in northwest and east India and a Hindu majority group in the rest of India. He was one of the champions who wanted to keep Bengal undivided. In 1947, he took active part to resist the communal violence that was escalating in the subcontinent. His efforts and the efforts of Humayun Kabir, Syed Badrudduja, Prof. Hiron Mukherjee, Sahon Gupta and others contributed to a great extent in forming the Nehru-Liaquat Pact. On his return to Dhaka he also got involved in the State Language Movement. He helped draft the 21-Point manifesto of the United Front in 1954. After the partition of India he came to the then East Bengal and joined Dhaka High Court as an advocate. He was elevated to the Bench in 1954.
As a judge, Murshed was uncompromising and a firm believer in the rule of law and democracy. He stood up to resist the imposition of military rule by General Ayud Khan in 1958. Some landmark judgments delivered by Justice Murshed are:
(1) Abdul Haq vs. Fazlul Quader Chowdhury and others, popularly known as the "Minister Case." Justice Murshed, as a presiding judge of the Special Bench, delivered the judgment resulting in the unseating of the central and provincial ministers under the Constitution of 1962. Because of this judgment President Ayub Khan had to amend the Constitution regarding appointment of ministers. This judgment is not only a heroic one but also demonstrates an exposition of constitutional law in lucid language.
(2) The Dhaka University Convocation Case, popularly known as "Zakir Ahmed Case." Justice Murshed struck down the decision
of the Dhaka University regarding expulsion of Zakir Ahmed. The doctrine of audi alterm partem, which he aptly applied in this case, is still followed by the highest judiciary of our country.
(3) Another outstanding decision of another Special Bench was given in what is known as "Pan Case." In this decision Justice Murshed struck down the Inter Provisional Trade
Ordinance, 1969, as void and illegal. He observed: "The guarantee that has been given by the constitution cannot be washed away by an ingenious legislative device which can wipe out an illegal invasion of today by an artful enactment of tomorrow, pretending to act retrospectively, without any constitutional change to that effect. A constitutional light cannot be taken away by a legislative 'fiction' without a constitutional amendment which would permit such a course. There is a world of difference between a legislative immunity and a constitutional guarantee. The constitution by its very nature creates the distinction. A constitutional immunity cannot be wiped out by such a simple method. The hand of a constitutional clock is incapable of manipulation by a simple legislative contrivance as opposed to constitutional amendment."
Justice Murshed, in his reply to a Full Court Reference on the occasion of his becoming the chief justice of the then High Court of East Pakistan, cautioned the judges about their duty. He said: "A judge is nothing but the law speaking with uncompromising justice, for it has been truly said that the best government is that in which the law speaks rather than the law-givers. This is where the judges come in. But where the law ends tyranny begins, and there is no worse tyranny than judicial arbitrariness and no misfortune can be worse than judicial subservience. When a judge departs from the spirit of the law and from a fearless independence in its application, lie becomes the worst lawbreaker."
Regarding lawyers, he said: "The essential characteristic of a lawyer is that by interest and predilection, and often by birth, he belongs to the people; by habit and taste he belongs to the aristocracy. He is thus a happy connecting link between the two. They are very properly co-sharers of the Court not so much as law-givers but as interpreters of the law."
Justice Murshed, even after he resigned, did not stop thinking of the people and the country. He said in one of his writings: "The countries and the peoples of this subcontinent should draw closer and work together. They have so much in common. They have to overcome the prejudices that keep them apart. The nations of the subcontinent have to unitedly work together in order to approximate a common goal. Unity in our part of the world, however, has to grow from within. It cannot be imposed by any external agent.”
We may say that he foresaw the birth of what is today called Saarc. A learned man as has was, he never failed to identify the problem of the times and world with the people.