Accountability Of Trust


By Muhammad Zain‑ul-Abidin, Advocate Supreme Court, Lahore

Accountability is an indispensable and an inviolable obligation linked to the Trust and it is so accepted by the practical democracy based on politics which is the half truth. Plato said:

"There is no place for a man of conscience in active politics".

Without moral control the active politics is bound to go astray. It is admitted by positivists that formal law has failed to curb abuse of power and liberty and impose self‑restraint and self‑discipline on those connected with the working of practical democracy. Whereas the Islamic democracy based on Covenant and Contract Social is the only solution to the problem menacing the democratic system. Contemporary thought has, therefore, felt great need for the development of an Ideological Control as DIAS stated:

"One reason for this was the courageous admission of scientists of the extent to which their own subjects were in fact founded on assumptions. Another was the failure to positivists to find answers to the problems that were coming to the forefront. The indispensability of values was increasingly felt as guides for legal development. This need was associated with the increasing use of broad, flexible concepts which admit latitude in application, and also with the realisation that judicial reasoning is creative and far from being purely syllogistic. The shattering effects of world wars, the decline in standards, a growing insecurity and uncertainty have stimulated anew the quest for a moral order, which was a boon undoubtedly afforded by natural law in the past. The alarming growth of totalitarian regimes, both right wing and left wing, has called for the development of some ideological control which could prevent the cloak of legality being cast around every abuse.

In these circumstances it is hardly surprising that there has been a return to natural law in a new form, which strives to take account, not only of the knowledge contributed by the analytical, historical and sociological approaches, but also of the increasingly collectivist outlook on life. An important feature is the returning emphasis on a philosophy of method rather than of content, which leaves the details of actual laws to vary with time and place and also opens up a possibility of establishing evaluative criteria empirically."

The need for ideological Control has becomes all the more imperative with the collapse of Communism and its sattellite in Socialism. A few days back Mr. Mikhail Gorbachev who has demolished the Communism stating to be a wild vulture and enslavement of humanity, has said that even in China, Cuba and North Korea the Socialism will not stay any longer. Rise of Revolution of Mind and the Idea of New World Order based on democracy, justice, equality and Human Rights have further projected the need of an Ideological Control. Iran has already established a system of Islamic democracy which has become an eye opener to the world. Recent judgments of the Supreme Court in the cases of Mian Muhammad Nawaz Sharif and Zaheer‑ud‑Din can be counted as steps towards the establishment of Islamic democracy. Article 2 of the constitution has categorically accepted the Ideology of Pakistan to be the compact of Religion and State and Article 2A can fairly be called as an Ideological Control. The Founder of Pakistan on many occasions expressed that:

"I do not know what the ultimate shape of this Constitution is going to be, but I am sure that it will be of a democratic type, embodying the essential principles of Islam. Today, they are as applicable in actual life as they were 1,300 years ago. Islam and its idealism have taught us democracy. It has taught equality of man, justice and fairplay to everybody.

It is my belief that our salvation lies in following the golden rules of conduct set for us by our great law‑giver, the Prophet of Islam. Let us lay the foundation of our democracy on the basis of truly Islamic ideals and principles. God Almighty has taught us that:

`Our decisions in the affairs of the State shall be guided by discussions and consultations'."

"Islam is not only a set of rituals and dogmas. It is a complete code of life. Pakistan will be a laboratory from where the Islam would be taken out in its totality, implemented and practised and proved to the world that in this system lies the salvation of huminity."

While incorporating the Objectives Resolution it seems to have been apprehended by the then President that the original principles, values and broad concepts of the Objectives Resolution would be discovered by judicial machinery sooner or later, therefore, an attempt was made to scatter away the judicial power to the Supreme Court by grafting Federal Shariat Court without Shoora on the Constitution and establishment of an Ombudsman for making report to him. The Supreme Court of Pakistan would be legally justified to resume the powers of the Federal Shariat Court and Ombudsman under the Ideological Control which has expressly preserved the independence of the Judiciary. The accountability of Trust is the essential duty under the Ideological Control and is a claim enforceable by any beneficiary through similar procedure as suggested by the Commission on eradication of corruption from establishment recently by Mr. Justice K.MA. Samdani. To fully appreciate the rule of accountability certain concepts should be studied and understood, which are:

System sustains by Balance, Society sustains by Ideology, State sustains by Sanction, Rule sustains by justice, Order sustains by Sacred Sanction, Trust sustains by Accountability and Sacred sustains by Abstinence.

It will, therefore, be clear that Trust under Islamic democracy is held to be sacred and is controlled by Sacred Sanction and the qualifications and disqualifications prescribed in Articles 62 and 63 of the Constitution and now incorporated by Ordinance in the Representation of the People Act, 1976 must be strictly enforced and the power of accountability may be assumed by the Supreme Court in relation to Sacred Trust under the Ideological Control to strengthen the system of Islamic democracy.

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