Syed Mansoob :
Syed Mahbub Murshed was born a hundred years ago on 11th January 1911. He passed away on 3rd April 1979. He is best remembered as a jurist (in the context of judicial review of the constitution or executive decisions, arguably the counterpart of the American jurist Marshall for Pakistan and Bangladesh), and later on as a public figure in the movement for the restoration of democracy in 1969. Yet he was a man of many parts, among which were his outstanding oratorial skills in diverse public fora in the late 1950s and 1960s. Apart from his years on the bench (1955-67), which has an independent role, he never held any public office nor formed any political party. ‘What would best sum up his personality? Perhaps, his dislike for the convenient and conventional truth; his unswerving support for the downtrodden; his love of right, however inconvenient. As 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”.’ Consider the following cynical statement about justice: Thrasymachus: I declare that justice is nothing else than that which is advantageous to the stronger.
To Murshed justice was the very antithesis of the this rhetorical statement towards the beginning of Plato’s Republic which forms the basis of the subsequent dialectic on the nature of truth. 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.
The 16th of November 1967 marked the the resignation of the late Justice Syed Mahbub Murshed, who had been Chief Justice of the East Pakistan High Court from 1964 to 1967. President Ayub’s diary for 6th January 1967 says that “Justice Murshed has a brilliant, intelligent, literary bent of mind and aptitude for languages, but he is impulsive and unstable.” Despite these aspersions, it is widely accepted that his resignation was over the issue of an independent judiciary, something for which Ayub’s patience had diminished following his re-election in 1965. Murshed had just become too inconvenient to a ruler who was becoming increasingly autocratic. In 1963, one of his judgements in a case, which is desoribed in brief as the Minister’s case, ensured that the legislative and executive functions of the state would remain separate, cabinet ministers could not sit in the national assembly. This judgement was upheld in the Supreme Court. Others were to follow, including a celebrated judgement concerning the relationship between the federal and provincial administrations of the country. Ayub had not wanted Murshed to become Chief Justice of the East Pakistan High Court in 1964, despite the fact that Murshed was the senior most Judge, and it was his turn to become Chief Justice. But at the time, he relented, and let precedent take its course. Ayub, of course, was a different man following his election victory over Miss Jinnah in 1965, and the war with India in the same year. Murshed decided to resign before resisting a regime that was becoming increasingly autocratic. He was expected to run against Ayub in the 1970 Presidential elections. But a mass movement against Ayub gathered momentum in late 1968, to which Murshed added his voice. A contemporary report in Time magazine states that: “The opposition cause was also boosted by widely respected Syed Mahbub Murshed, former Chief Justice of the ,East Pakistan High Court, who told the nation that “we are not destined to perish in ignominy if we put up a determined and united resistance to evil.”
These events are not merely mundane facts in the history of Bangladesh and Pakistan, but have a strong resonance for the present. They concern the widely touted subject of good governance, where we often forget that good government in practice requires the separation of powers, which needs to be ultimately subject to judicial review and scrutiny to prevent the arbitrary exercise of power by either the executive or the legislature. A historical example may be of interest in this regard. Frederick II of Prussia (1740-86) established an independent judiciary despite being in the position of an absolute monarch, and respected judgements of the judiciary, including in a case where a farmer successfully sued him, and he promptly paid up. Not only that, but when he wanted to buy land from a miller to extend his beautiful, but small, SansSouci palace in Potsdam, the miller stubbornly refused to sell. When directly confronted by the monarch, the miller told the King that what stood between him and arbitrary (executive) confiscation of his land was the court in Berlin. Frederick II of Prussia accepted and respected this statement. We would do well to remember that ‘even though he was an enlightened man, he possessed despotic powers in principle, which he chose not to exercise. Perhaps, that is why he is referred to as Frederick the Great (not just for his military achievements). The great Gelman philosopher Immanuel Kant in an essay had advocated a republican constitution, which would ensure peace. According to him, the worst form of despotism, which ultimately leads to violence, occurs when there is no separation of powers; those who administer laws are one and the same as those who decree them. Ensuring the separation of powers between the executive and the legislature requires an independent judiciary, and judges like Murshed to fearlessly exercise these principles. Let us not forget that despotism is not simply confined to absolute monarchies or dictatorships, but can also feature in flawed democracies, even when rulers happen to be elected.
