Justice AM Mahmuder Rahman :
Justice Murshed was born on 11 January 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 1932 and obtained LLB degree from Calcutta University in 1933 securing first class. He enrolled himself as an advocate of the High Court of Judicatory 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 great people like Prof Harold Laski of the London School of Economics, Mr Krishna Menon of India.
On his return from England he took up again 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 Trust. 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 for autonomous Muslim groups in north-west 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 those with whom he worked ¾ Humayun Kabir, Syed Badrudduja, Prof Hiron Mukherjee, Sadhon Gupta and others ¾ contributed to a great extent in forming the Nehru-Liaquat packet. On his return to Dhaka he also got involved in politics in the State Language Movement. He helped the draft to 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. Within a short time he made his mark in the legal profession and was elevated to the Bench in 1954. As a judge Murshed was an uncompromising personality and he was a firm believer in the rule of law and democracy. He stood up to resist the imposition of military rule by General Ayub Khan in 1958.
I shall be failing in my duty unless I make reference to some of the cases which are landmark judgments delivered by Justice Murshed. These are – (1) the famous case of Abdul Haq vs. Fazlul Quader Chowdhury and others, popularly known as the ‘Minister Case’. In this 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 and because of the judgment President Ayub Khan had to amend the Constitution regarding appointment of ministers. This judgment is not only a heroic one but it demonstrates a lucid exposition of constitutional law and again in very lucid language. (2) The Dhaka University Convocation Case, popularly known as Zakir Ahmed Case: In this case he 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 still is followed by the highest judiciary of our country with the highest esteem. (3) Col Bhattacharya’s case: In this case Justice Murshed, speaking for the Bench, observed: It was further argued that force has never been the source of law referring to a dictum of Rousseau in his well known work, ‘Social Contract’. It is true according to Rousseau, the origin of ‘state’ and ‘laws’ is a primeval contract between the members of a somewhat nebulous society. This is one school of political philosophy, which has not been accepted in its undiluted form, there is another school of political thought led by Hobbcs, which recognises that the might and force behind a sovereign authority is the origin of law and ‘state’. Other political philosophers like Locke, for instance, have taken a view which is a via media between the two views expressed above. With regard to the origin of law, political philosophers have held different views and they are far too numerous to be discussed here. Such discussion would be irrelevant for the purpose of this case. Similarly no useful purpose would be served by grouping round the interminable definitions that have been given to the expression ‘Law’ across long-drawn centres by different philosophers and jurists who have obviously understood-that expression in various senses. This accounts for the great divergence in their views. We have therefore, refrained from discussing the opinions, ponderous as they are, of philosophers from Aristotle and Plato to Salmond and Holland that have been read out before us by the learned advocates in order to support two different views. But an examination of the great mass of divergent definitions as propounded by thinkers beginning from Hellenic philosophers to modern jurists will lead one to the conclusion that a workable definition which is accepted by lawyers for practical purposes is a body of acts, orders, ordinances, regulations, rules, conventions, customs and practices which have the sanction of an authority capable of establishing law and order and which is thus enforced or recognised by courts and other law enforcing machineries”.
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 ¾ 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, lie 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, liven in broken health post Bangladesh, he used to think about cooperation in this subcontinent. 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.
As a learned man, as he was, he never failed to identify the problem of the times and world with the people.
