كلية القانون - دكتوراه
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Item القوة القانونيه للمبادئ الموجهه في الدساتير السودانية(جامعة النيلين, 2019) مواهب فتح الياس الشلاليالمستخلص لقد هدفت الدراسة الي اثبات أن المبادئي الموجهه هي من الحقوق والحريات، ظهرت في دساتير الدول الإشتراكية – مثل الإتحاد السوفيتي التي تطلع الي تحرير الفرد والمجتمع من الحاجة والفقر، والمرض والجهل حتي يصل الي الحرية السياسية، وإن المبادي الموجهه هي الجيل الثاني من الحقوق والحريات التي ظهرت علي السطح بعد فشل الحرية الفردية وظهور الحقوق الجماعية ، كما أنه قد ظهر جيل ثالث من الحقوق. وتتبع اهمية الدراسة في الدساتير السودانية التي كان لها قصب السبق في النص علي أن المبادئي الموجهه لا تشكل الزاماً قانونياً ينفذه القضاء في اغلب الدساتير وفي مشروعات الدساتير، وقد جاء هذا السلب بصيغ مختلفة، صيغ واضحة بعد حمايتها قضائياً، وصيغ كانت بطريق الإستثناء، ثم دساتير لم تذكر شيئاً عن هذه المبادئى الموجهه للدولة. وتتمحور مشكلة الدراسة في أن المبادئى الموجهه لايمكن فصلها من الحقوق والحريات حيث تتداخل المبادئي الموجهه وترتبط مع الحقوق والحريات في سلسلة متراصة لايمكن فصلها وحماية بعضها قضائياً وعدم حماية البعض الأخر. لقد تناولنا ذلك كله بمنهج وصفي تحليلي وفقاً للمبادئى الموجهه في الدساتير السودانية، وقد فرضت علينا الدراسة نظراً لإختلاق الفقهاء حول طبيعة ما تتضمنه الدساتير من مبادئى موجهه لا يمكن بأي حال من الأحوال أن تكون ذات طبيعة دستورية وماهي إلا توجهات ومثل عليا تعبر عن اراء ومعتقدات سياسية. وما بين مؤكد لدستورية هذه المبادئى وإعطائها قوه قانونية أن نتبع المنهج المقارن لعدة دساتير، ولم نحصر المقارنة في الدساتير السودانية فقط بل رجعنا الي دساتير عربية واجنبية حتي نخلص الي تغطية كاملة بقدر المستطاع لموضوع الدراسة والتي بدأنها بفصل تمهيدي نستعرض فيه التطور الدستوري في السودان منذ استقلاله في يناير سنة 1956م وحتى الآن . ولقد تم تقسيم هذا الفصل الى ثلاثة مباحث، حيث تناول المبحث الاول الدساتير المؤقتة اما المبحث الثاني فكان بعنوان الدساتير العسكرية وختمنا هذا الفصل مبحث حمل عنوان مشروعات الدساتير. ثم استفتحنا بحثنا باول فصل فيه والذي كان بعنوان المبادئ الموجهة في الدساتير السودانية ودساتير الدول الاخرى وتعريفها وعلاقتها بالحقوق والحريات وعلاقتها مع بعضها البعض وعلاقتها بالديمقراطية وقوتها . ثم درجنا الى الفصل الثاني والذي تناولنا فيه اقسام اللمبادئ الموجهة حسب تقسيم مشروعات الدساتير السودانية التي قسمتها الى مبادئ سياسية ومبادئ اقتصادية ومبادئ اجتماعية ثم مبادئ ثقافية . واخيراً وصلنا الى الفصل الثالث الذي ختمنا به فصول بحثنا هذا وكان بعنوان حماية الحقوق والحريات والذي تناولنا فيه الحماية الداخلية للحقوق والحريات ثم الحماية الدولية للحقوق والحريات ، وبعد كل ذلك وصلنا الى خاتمة بحثنا التي حوت خلاصة ما توصلنا اليه من نتائج جعلناها نواة للتوصيات التي زيينا بها البحث، وكان اهمها، ان حماية اي حق من الحقوق يعني حماية بقية الحقوق، مثال ذلك أن ممارسة حق الإنتخاب كحق سياسي يعني اختيار حكومة ديمقراطية لها برنامج متكامل اقتصادي وسياسي وإجتماعي يعني شفافة منتخبيه وملتزم به حيالهم وهي المبادئى الموجهه، واوصت الدراسة الدساتير السودانية القادمة بالنص علي حماية المبادئى الموجهه قضائياً, ثم جاءت مصادرنا ومراجعنا التي استعنا بها. Abstract This study is aiming to prove that the guidingprinciples are rights and freedoms appearingclearly in the constitutions of socialist states like Soviet Union to reach the political freedom and these guiding principles came after individual failure and the rise of collective rights in addition to the emergence of third generation rights. The importance of this study lies in that the Sudanese constitutions were the first to state that this guiding principles do not constitute legal obligation executed by judicial authority in most constitutions and constitutional bills and this obligation came in different phrases, clear phrases not to protect this principles judicially, exceptional phrases but the constitution did not mention anything about this guiding principles to the state. The problem of this study is that it is centered around guiding principles which cannot be separated from rights and freedoms and came in a shape of strong chain to protect each other before the judicial authority but not all the principles are protected, we discussed all this in a descriptive analytic method in accordance with this guiding principles in Sudanese constitutions. The study force upon us a different perspective because of the conflicted opinions of jurists about the nature of this guiding principles in the constitutions which cannot be of a constitutional nature and they are mere confirmative directives for the constitutionality of this principles to grant them their legal powers and to make them follow the comparative method for many constitutions, the comparisonis not limited to Sudanese constitutions only but was extended to Arabic and foreign constitutions to come to a comprehensive coverage for this study which we started it with chapterWe came out with several results which are: The importance of this study also, lies in that it meant the protection of any right is a protection to every right, for instance the exercise of the right of voting as a political right means choosing a democratic, economic, political and social program with systematic culture, obligated with it towards them and this called the guiding principles. Which we started it with a preliminary chapter discussing the Constitutional development in Sudan since in dependence in January 1956 till now. It is divided into three parts, the first one is ،،The provisional constitutions, the second part is, The constitutions during military regimes, the third part is about, The bills of provisional constitutions, The research as a whole is also consists of three main chapters, the first under the title ،،The directory principles in Sudanese Constitutionsand other definitions, their relation with rights and freedoms, their relation with each other and their relation with democracy and their powers. The second main chapter deals with directory principles as derided by the bills of Sudanese constitutions into, political, economical, Social and cultural principles. Finally, the third main chapter is about protection of rights and freedoms, which deals with national and international protection of rights and freedoms. After all said above we reach the end of our research which includes the abstract of conclusions at the bottom of the research which constitute the essential part of the recommendations. At the bottom of the research also we mention the resources, text – books and former studies We use to assist. The study recommended that the coming Sudanese constitution should protect these guiding principles before judicial authority.Item الانحراف بالسلطة في القانونين الإداري والدستوري(جامعة النيلين, 1998) ادم ابكر صافي النورABSTRACT This reach study is the particular issue related to deviation ad obliquity of authority in the administrative and constitutional laws of the Sudan. The researcher yielded to the Arabic and foreign references; and the Arab and foreign judicial precedents, as sources of data on the unjust and oppressive use of authority ad power in judicial ad administrative practices. For the purpose of conducting the research, to reach the required results, it was divided into three chapters - an introductory chapter, and two further chapters. I The introductory chapter contained three sections and is about the deviation and obliquity of authority. It is divided into three sections: one defines the deviation ad obliquity of authority and power, the second exposes the significance of the study of deviation and obliquity of public officials; and the flaws associated with same. The third section delves into the method of the treatment of deviation and obliquity, through judicial control over the executive organ and the administrative work. Then chapter one discussed the general theory of the deviation and obliquity of authority in the administrative law. Thus, deviation and obliquity by the public official for his own interests or for vengence are reviewed, together with the relation between the administrative and the constitutional law. This chapter also contained five consolidated sections. Chapter two deliberated the deviation and obliquity of authority in the constitutional law. It covered the procedures of the representative organ and the use of authority, unconstitutionally, for achieving some political gains, or for the vested interests of some specific groups. The research findings proved the following: l- Public freedoms are the base of all freedoms. Therefore, the supremacy of the law is the guarantee for these freedoms. 2- The dangers of deviation and obliquity affect freedoms; especially in the case of deviation and obliquity by the government officials. 3- Deviation and obliquity cause corruption in presidential and the legislative organ elections, for the benefit of one party; or the other. 4- The transitional Acts passed by governments, for their mere survival, and at the expense of the country and nation, form a type of deviation and obliquity. _ 5- The practice of comprehensive democracy, on the pretext that it is liberal democracy, is another type of deviation and obliquity.Item الاطار الدستوري والقانوني للخدمة الوطنية(alneelain, 2005) الصادق علي سيد احمدAbstract The National Service with its different terminologies is a one humanterrain experience found in most countries, and it is said that it was the Ashorians in pre- historic IRAQ, who had invented it , taken by Europe in its subsequent wars. Military conditions normally are behind the introduction of National Service then gradually its umbrella expanded to include other national fields such as construction and development, keeping in the same time its basic phenomenon which is defense and military job. The National Service in Sudan has concealed some constitutional rights like the right to travel, work, study, movement and others, justified from its part that giving such rights is connected by finishing the National Service stated constitutionally. In this research the governmen'h-ii identified as an organization based on the existence of some population, a region and power that has control over those in the region. Recent governments, or better still, the "Aim" that has the powers to achieve some goals that go beyond this control . Matter of fact government goals differ as to time and place they depend on many factors among which stands the political philosophy. This philosophy is determined by many factors, like present status of civilization, economy and political forces that have its say over government. They are many rules that the National Service can play in different development programs eg; Social development, the National Service attempts to erect good moral values that lead community and individual to be feed from social calamities. Ancient Romans, Persian and old Arab tribes had known National Seryice, Islam has known it too. Islam has called for "JIHAD" with both money and soul and as being a stand by condition and throwing freight into enemy. Islam has considered failure to do so as unfulfilling a religious duty causing anger of "God" and leading to corruption, degradation and imbalance of Muslim Order. Jihad has been considered as mandatory on every Muslim mature free from sickness. National Service has not been made mandatory by Prophet "PBUH" nor by his, successor Abubaker ElsadeeQ. But in the regime of Omer Elfaroq he had made National Service obligatory because of the threat of the Persian Empire. Also at the time of"Sani Umia regime National Service was considered mandatory, till the army of Abdal Malik ibn Marwan was reached around 60,000 solders. In France, before and after the revolution, we can have some light on the history of Military Service in Europe. Micaville had issued a memorandum . upon which :.Law of year 1506 was erected, thus Law .had made National Service mandatory to people between 18-30 years for a duration of 5 years. This indicates that Europe has executed National Service system together, with Reserve system after the French revolution. In United State of America National Servf~ na§ saved for the human lactor as a human being and has give him his full rights, that there is equality for its execution. It has given the recruit his right as to academic activities. In a country like Sweden the care for National Service has reached highest limit, not even to be imagine, National Service has turned into the backbone for the country in both Peace or War . So Sweden National Service is considered the pioneer in keeping rights and freedom of recruits. . ...... .. "". In China National Service mandatory for every citizen who reached 18 years old, the goals are to train young people militarily, and connect people with politics. The China reserve figure is a round 250 million recruits. As in the research , the Israeli experience in National Service project has emerged from its understanding to its special and unique position that necessitates a constant military readiness so the Israeli military strategy has evolved depending upon National Service as a means to achieve many goals, amohg which stands the expand erection of . Zionist community and to enlarge the occupied lands. So they have arranged for National Service the processes of counting, calling, training, assigning and make necessary reserves. This researcher think that this huge care for National Service has not been followed by the recruit as in person, in muc!1 areas as salary, and in particular those recruit from eastern origin. Many recruits have refused to fight Palestine civilians, so they were presented to trails and jailed. According to this research the Egyptian experience has the upper hand over the Sudanese one, in such that it has invented a precise system for: - Designing plans to routine training of recruits in military units. - Making use of recruits in replacing the loss, and filling Salary gabs. - Developing new units when needed. - Emerging of special military colleges for reserve officers to train university graduates. :-'~;.I"' - Usage of recruits in civil and works, as it has introduced "Work Battalions", so doing its services in civil and social field. The Syrian National Service experience is a one that deserve study. It is an old and well founded service, and depends mainly on a precise civil record and a well organized call- for- Service System , this system enables Syrian National Service to avoid normal records problems, a true headache in Sudan. What worth mentioning is that the Syrians Service is a long one compared to Sudan and other Countries, this length of performing enables violations of recruits rights in all its forms. In this Paper it is clear that the ultimate goal that the government is seeking to achieve at present is to establish a whole civilization development that enables the country to proof it self and spread freedom for people, to enhance the way people live, and to reach unity and power that guard existence and values. What have been stated is that National Service has started in Sudan by the so called Compulsory Military Service in 1971, followed by the Law for 1983 and 1989, then finally the current National Service in 1992. If the function of such government is a security role then the political and legal form should follow suit to come into line with those necessities. The Researcher think that security is most vital element for the country to secure land and regime. The concept of National Security means defending the country and its capabilities in political, economical, militarily, socially , scientific and technological fields. Through the Paper it was visible that the problem of Southern Sudan is the biggest threat to the country's security and that because it has its external connections. Then comes the Tribal Conflicts, Armed Plunder, De-housing, Refuges, Identity Struggle and lately Darfour Issue. All of those have their negative impact on Sudan National Security. Through the Paper it is clear obvious that some inefficiencies and in competencies that characterized",the National Service in Sudan. Example are:- 1) Present status-quo of National Service that is composed of Military Pole and the General Co-ordination Pole that led to many managerial difficulties disabling the maximum benefit to be derived from the vast resources available. 2) Extreme difficulty in naming responsibilities and job description. 3) Problems of ranking priorities especially in exploiting resources or appraising expenditure. 4) The two Poles present in National Service led to several negative practices eg: intelligent recruits get some benefits from both, or some parties try to create clashes between those two Poles. 5) Duplication of work especially in recruits procedures. 6) Weak usage of the information network. 7) Absence of researches and studies led to the negative analysis of many problems. 8) Calling Cadets by way of streets campaigns has led to some social and economical negative impacts as a result of the absence of National Civilian Record. 9) Weakness in financial support for human development. 10) Absence of clear visibility concerning projects eg: Planning, Executing and Co-ordination. 11) Optimum usage of re'sr.uits after graduation is not present, and the better allocation to the different military units is absent. 12) Media is not playing its normal role to invite young people to do their National Duty and activate the National Service programs. The researcher recommended that, due to the vital role of women in society, it is important to pay attention and care for the female training in National Service regarding family and religious matters. It is important to note here that Islam doesn't impose any specific system to govern Muslims lives, and has left the door open to Muslims to make "Igthad" to meet and solve their daily problems. Stagnancy is not the nature of Islamic Laws, but Elasticity is always the feature of it especially in constitutional affairs, army formulation ... etc. The present global situation necessitates invitation for power and National Service to Jace this challenge. National Service is not a lien system to Islamic states that preserv~Jiyes, resources and keep rights. This Religion is based on such principles like God Loves Strong Believes better the Weak Ones. National Services according to the Paper should be taken seriously especially in our area, that every subject in our society should bear his own obligation and then be strong and jubilant in body and soul. Also the Paper called for preserving the constitutional rights of recruits as to their medical and social care found in international treaties. This is because cc!dets suffer in combat action areas for the said reasons of their supervision of managerial body. In addition to that it is vital to keep the recruits right to sue and be persuade, innocent presumption should be protected, they have the right to affair trail. Here the Paper made it clear that the crime of avoiding the duty of performing National Service, has four elements to happen:- (1 )Reaching the necessary age. (2)Subject is obliged to do National Service. (3)Material element. (4)Announcement to reach the proposed cadet. Consequently it is conditioned for crime to be there that the subject will fully intends to escape from doing his National service duty. He can not alleged his ignorance by National Service Law. If the accused intention is not proved then there is no case and the file should be closed. Escaping from the duty of National Service is a crime as mentioned before but this commitment will be : ... '- . no longer if the accused reached the age of 50 years according to the effective National Service Code. In practice the overall National Service pOlices in Sudan are directed to "chain" all civil rights for subjects entitled to do the Service eg; such rights as work, travel, education specially post graduate studies, receiving certificates ... etc. Such rights are secured by International Agreements and even by Sudan Constitution Law of 1998. According to this Paper, these ensure a problem of the authority given to the National Service to suspend salaries f those escaping their Duty, and that is according to the phrase" and it is prohibited to leave him/ her in his job" that comes in section (24) in the Law of 1992. Then comes the act prohibiting him/her from entering the place of work, then finally to authorize his/her employer to fire him and transfer his file to the Legal Affairs in the National Service to carry with the case. What characterized Act of 1992 is the cancellation of the right given the Defense Minister to male some exceptions as to the National Service Duty and to main justice. We think that no matter what the ministers transparency such behavior creates gabs. One of the important precedent in Egypt mentioned in the Paper, that the constitution court has issued lately a decision to "make void the membership of any member'to any public posts", and this covers Parliament members, Local Councils .. etc. It considers escaping National Service Duty as a breach of trust to serve his community. The Paper has explained that recruits in some experience have the right to refuse the order of calling for the Military National Service especially by reason of conscience motive, and they have the right to choose a substitute Service. The 'Paper has called for the re-consideration to banning travel to those obliged to do Natiorial Service Duty, this is because National Service in Sudan is considered new, using recruits after training has not yet received its proper attention and there is w,id,e span between periods of calling cadets to do their Duty. ' ~. '.- The Paper has made a point concerning secondary schools cadets, that even if we accept National Service reasoning of training then both body and mind, it is important under the peace process going on now-days to review their Age effects. It is better to postpone their training till they graduate from universities. This Paper has explained that the basic guard that protects subjects from any managerial un-justice is the adherence to the law. This basic guard depends on legitimacy as a characteristic of now-days estates. This Paper finally gives its vision to the future of National Service in the light of Peace Agreement signed between the government and Sudanese People Liberal Movement. The targets of National Service can be reached by creating a civil administration under the supervision of Defense Ministry. Such administr~tion to be composed of civilians and military officers. ' The issue of Peace in Southern Sudan requires a governmental re-allocation of priorities as to the strategic planning and better co-ordination of different bodies to achieve effectiveness and efficiency to the government plans and programs. National Service unique characteristics represent an addition to such plans and programs by the unlimited source of human hands and effective lawful framework. At the end of the Paper some, practical recommendations are suggested to enhance the image of Nationai Service in Sudan to come in line with International Agreements that call for human rights and freedom.