Rule of Law

Chief Justice SM Murshed was born on 11 January 1911. January 11, 2023 would be his 112^th Birthday. He was a Bengali jurist and legal scholar who served as the Chief Justice of High Court in the-then East Pakistan (now Bangladesh) from 1964 to 1967.

We justify our privileged status as legal professionals only as we do justice for all our citizens, young and old, male or female, rich or poor, and without regard to ethnic or racial origin or to religious belief and Chief Justice Murshed strongly believed in this dictum.

He contributed immensely to our judiciary during his time. His demise 44 years back at 68 is indeed a great loss to the judicial fraternity specifically and the nation as a whole.

He was a towering Bengali and that his many accomplishments and contributions to the country were well documented, in particular when he was the Chief Justice and afterwards in life time.

He had written a number of landmark judgments.His judgments, which reflected his judicial independence accompanied by legal clarity and intellectual analysis, constitute a major contribution to our country’s jurisprudence and justice system.

Sharing the same thoughts by his votaries, former Chief Justice SM Murshed was known for his dedication and sharp legal mind and also was highly respected by those who had served under him.Although he was a strict man, everyone admired and respected him… ‘A man of principle, honest and holier-than-thou.

Though he was a tough boss, he was a very good man and had a kind heart. Those who knew him also described Justice Murshed as a man of principle, honest, of the highest integrity.

He would be all ears and heart to discuss legal issues. Many say with conviction that he was incorruptible, the most honest man in his entire life.He trained many to have moral courage and dignity. He was an argus-eyedman, but he was a giant in law and justice.

He was an exceptional gentleman, and a judge, then the Chief Justice of high integrity and good temperament during his days on the bench. His judgments are usually couched in very simple language, succinctly to the issues at hand, and often used as authoritative references by judges and lawyers.

He was a man of unfailing courtesy … he was also a kind, humble and elegant man – elegant in his style, in his thinking and in his writing. He brought to the bench a broad and deep knowledge of the law. As a lawyer, and then as a judge and finally as the Chief Justice…, he worked selflessly for a just outcome.The law was only one of many facets to his Honour’s life.

He believed that the important point to keep in mind is that this judicial branch is not the servant of lawyers, or judges, of clerks, of non-judicial employees, but of the people. Without a functioning judicial branch there can be no constitutional democracy. Without a judicial branch there is no liberty, no peace, no order, no guarantee of fairness. Without an independent judiciary even those citizens who never go to court will be at risk in their lives, their liberty and their property. The loss of a functioning judicial branch is a loss that our society cannot survive.

Considering the magnitude of the challenges the judge faced when he became chief, his administrative accomplishments were extraordinary. With the help of many, he preserved the judiciary’s independence, strengthened its authority, and helped it adapt to the changing demands of justice.

Today, we remember not only Chief Justice SM Murshedas an enlightened and effective administrator, but also as an exemplary jurist, who created a body of law that will continue to affect the lives of our citizenry, and influence the courts in other jurisdictions, well into the future.

The chief introduced a distinct approach to judging. He recognized that courts were being asked to decide matters of fundamental importance to the human condition, that in the 60sthese matters were coming to the courts with increasing frequency because of the inability of other social and political institutions to resolve certain difficult and troubling issues. In addressing these issues, he was not satisfied to employ a mechanical application of legal doctrine. Rather, he sought new ideas, new perspectives, and in so doing, he relied on the best ideas in the history of human thought, spirit and imagination. His opinions were often peppered with references to great thinkers throughout history.

His opinions ring with energy, history, humour, real knowledge of real institutions, penetrating analysis, synthesizing will, an imagination balanced on the point at which what is becomes what can be. They have vision, and they have design. They teach, explain and persuade. Sometimes they sing.

His opinions are scholarly, but they are grounded in experience. They perpetuate ideals, but work in the practical world. They are generous without yielding in principle and tough without failing in mercy. They value the past at the moment they change it, and change outworn laws at justice’s command.

Murshed’s commitment to individual freedom is reflected in the trend he often led to find greater protections of individual freedom.His concern for human dignity is best illustrated by his opinions in cases involving.

He clearly interpreted that the constitutional right to privacy . . . is an expression of the sanctity of individual free choice and self-determination as fundamental constituents of life. The value of life as so perceived is lessened not by a decision to refuse treatment, but by the failure to allow a competent human being the right of choice.

He strongly believed in protecting the incompetent person within its power, the state must recognize the dignity and worth of such a person and afford to that person the same panoply of rights and choices it recognizes in competent persons.

He recognized the essential uniqueness of each human being when he concluded that the primary test is subjective in nature — that is, the goal is to determine with as much accuracy as possible the wants and needs of the individual involved. Significantly, in making this determination, he vehemently disapproved of an analysis that would equate the value of life with an individual’s quality of life.

In reaching this conclusion, he made a visionary observation about decision-making in a democracy that it is the diversity of opinion among individuals, some of whose concepts may well have been influenced by their group affiliations, which is envisioned when we refer to ‘diffused impartiality.’ No human being is wholly free of the interests and preferences which are the product of his cultural, family, and community experience. Nowhere is the dynamic commingling of the ideas and biases of such individuals more essential than inside the jury room.

By values, by vision, by strength of character, Justice Murshedwas the right person to lead this court through one of its most trying times and to so well prepare it for the challenging future that is now upon us. He loved this court, and this country.

He exhorted the legal profession to do justice for all our citizens, young and old, male or female, rich or poor, and without regard to ethnic or racial origin or to religious belief. And what he urged on others, he achieved himself. In this, he lived the imperative to do justice, to love mercy and to walk humbly with our Creator.

May it please the court. To summarize the life of any person is a difficult task, and one which each of us must undertake from our own perspective. But in the case ofMurshed, the task is compounded by his extraordinary nature, for he was one of the most exceptional people that our people have ever known.

Winston Churchill once said, “what we get is how we make a living, but what we give is how we make a life.” If that be the measure, then SM Murshed’slife was rich beyond description. As an extraordinary law school acclaimed scholar, internationally known barrister, and brilliant jurist, he gave everything he had to every undertaking, obligation, commitment, and relationship. There was nothing halfway or equivocal about him. And his measure as a caring, sensitive, thoroughly delightful human being was equally compelling.

Totally devoted to his family and his extended family of countless friends, he had a passion for people that was unsurpassed. He was frequently an anchor to the wind for those of people less strong.

It is not surprising that many great jurists were once great trial lawyers, and so it was withMurshed. He quickly established, by his great ability, his trial experience, and his scholarly pursuits, a reputation as an outstanding jurist – areputation as one of the country’s leading authorities on the laws of evidence.

He was a visionary who sought constant improvement in the judicial system and the ability to anticipate the needs of the future.

He was a man who was personally aggrieved by the injustices of this world and the plight of societies afflicted. He was a man of enormous talent who gave all of his heart, body, and soul to the judicial system of this country and his beloved High Court, which he led with such pride and great ability.

He was a man of principle and self-discipline. And when his friends hear words such as integrity, loyalty, honesty, decency, compassion, dedication, and justice, they know that these are not just pious platitudes that are sometimes over used, but rather these were… intimate friends, his constant companions, the guide posts by which he lived throughout his entire life.

From my perspective of my father who was a lucent lawyer during the British Regime in the Indian Sub-continent, Chief JusticeMurshed has my greatest admiration and respect for being everything that a noble profession would like to offer to the world. As our revered person as he is, he had my love for being everything that a great person can be.

Let it be recorded that Murshed lived and he lived life well and he lived it fully. And all of those whose lives he touched are the richer for it.

This confidante of the mighty and defender of the weak, this courageous judicial fighter and warm compassionate friend, this highly public person and highly private family man, made a great mark upon our times.

Although he was of a quiet and gentle nature, he was fearless in defense of what he believed to be right. He not only stood toe-to-toe with certain members of the Legislature in order to preserve an independent judiciary, but also fought to preserve his own reputation in the face of unsupported rumours and innuendo when he could have quietly remained aloof and pursued a very successful and remunerative career. He even stood up to the generals of the Pakistani junta at the risk of his personal safety and in his country.

He was, in short, a man for all seasons, quiet yet determined, open to persuasive argument but unwavering in defense of what he believed.

We miss him terribly and can’t believe that he’s gone. But his voice and his image remain with us. When troubled, we ask, “What would Justice Murshed do?” And when we ask that, we become larger, wiser, fiercer, more generous, and we set our eyes on the task ahead. Thank you, Chief Justice SM Murshed, for being a ray of sunshine even on our darkest days.