كلية القانون - ماجستير
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Item ambiguity of the borders of insaity in criminal liability(Neelain University, 2003) John Gatwech LulABSTRACT This subject, the Ambiguity of the Borders of Insanity in determining the extent of criminal liability has ever since been a controversial and a thorny issue for courts and medical or psychiatric experts. This having been the case since 1843 and.even before that time, I thought it worthwhile making a thorough research to find out why should that controversy persist at all times despite the judicial and psychiatric advancements achieved over all these years, and hence this thesis wherein I also made suggestions to solve the riddle. It has never been within the capability of judges, lawyer and psychiatrists to draw a definite line separating the completely insane from\ the partially insane so as to be able to know exactly whether the former can be completely absolved from any criminal liability if the act complained of has been proved to have taken place at the time the accused was under that state of mind; while the latter be held only partially responsible for the acts committed in that half-insane state of mind. Even the sane may be mistaken for the half-insane when his behavior at the time of the act is suggestive of some extent of insanity or mental disorder and vise versa. Therefore, there were cases where half-insane persons had to be sentenced to death mistaking their state of mind for sound ones. A certain Barakia Wajo must have been one victim of such mistakes as a result of having no definite formula for knowing where the line lies. It is because of such possibility of mistaking one state of mind for another. That is what necessitated this work, hoping that I may be able to show the whole world how to be exact in drawing the line. This proved difficult although I believe I have added something positive towards a future possible solution as indicated in the two of the three points I made towards the conclusion of chapter five. I say two, because the third one is merely an admission that where the line lies is difficult to define as yet while the first and the second are suggestive of a solution for a uniformity of the decisions in similar circumstances. The first of these is that the principle of ‘the benefit of doubt’ should have full consideration in the defense of insanity. The second suggestion is that ‘partial insanity’ must not be taken in contrast with ‘complete insanity’ and it must be understood that temporary insanity is not is itself (per se) indicative of diminished responsibility since it may be unlike partial, so severe as to amount or reach the extent of complete insanity. . ' These conclusions were arrived at after considering what the definition of insanity is; and after taking into account the historical background of the legal tests as well as whether it is a medical or a legal concept. The confusion caused by the use of such words as ‘insanity’ and ‘mental disorder’ has a significant bearing to the confusion and lack of uniformity in specifying the extent of criminal responsibility; and likewise the question of neutrality of medical experts. It is undoubtedly true that one of the problems that causes the persistent controversy in the issue of insanity when the courts are to decide the extent of the responsibility of the insane or that the accused is not even insane at all is tl1e partial position taken in most cases by the psychiatrists. This unfortunately came to be known as the ‘battle of the experts’ where an expert frequently takes side with the one who retained him or called him as his witness. This artificially created situation whereby conflicting experts opinion is intentionally or otherwise given by the opposing psychiatrists confuse the courts more. Therefore, the courts having this in mind and considering the possibility of scientific errors came to believe that there could be no fair finding unless insanity for the purpose of criminal responsibility is considered as a legal concept. This caused a tug of war between the medical experts (psychiatrists) and the courts. The courts for the time being have won this tug of war. So, insanity is now considered as a legal concept and not a medical one although medical opinion is still to be sought by the court and given its due consideration or evidential value. In the Sudan, the battle of experts was experienced in the case of Awad ElKarim Mohamed Ali Bakkar in 1982 when each expert or each team on each side gave contradictory expert evidence in favour of either the defense or the prosecution —i.e. allying with the side which called them as their witnesses. The court as usual had to consider insanity in this case to be a legal and not a medical concept. This case is just an example about what is known as the battle of the experts. Generally speaking, the psychiatrists have not been accurately perfect in setting lines to divide or categorise insanity according to the degrees of severity, and since the difference between the degree of insanity or mental disorder is the formula by which it is decided who should be punished and how severe should that punishment be, it becomes imperative for the courts to step in and reach adecision in whatever way they think just by trying to pin point the indefinable line that separates different states of mind and punishment are decided accordingly. The less severe punishment is for the diminished responsibility asa result of a less severe insanity or mental disorder, definitely the reason for deciding that insanity is a medical concept is because judges and lawyers have their training based on the importance of justice, which is in turn based on necessity of impartiality. This kind of training makes most of thejudges unlike others never to depart from these ethics. But this is not to say that other professionals do not completely observe the ethics of their jobs but comparatively, I maintain that courts are more adhesive to the ethics and principles of law which prohibit partiality. Were courts to have the complete technical know~how to find out with a scientific precision the extent to which one is insane, there would have been no problem of deciding who is to be responsible criminally and to wl1at extent? In the course ' of discussing criminal responsibility with respect to acts of insane people, I immediately found that it is necessary to mention the psychiatric types of mental disorder. However, it is not the work of a judge to enumerate all types of such disorder, how many they are or what their characteristics are, since this is the work of a psychiatrist. At any rate, I had to identify which one is usually the cause of insanity or mental disorder, which affects criminal responsibility. I found that the best known among then are psychoses, neuroses, organic brain disorder and then the congenital intellectual deficiency. The most severe of these being mostly from psychoses —and that is the type known as schizophrenia. The other most controversial state of mind is the psychopathic personality, which develops from neuroses. This thesis is a comparative study based mainly on three jurisdictions which are (1) England (2) United States of America and (3) The Sudan. The law of insanity regarding these three countries has been discussed in this work with some kind of concentration and has been critically analyzed. It has to be noted that the known legal tests in this field originated, in England and United States of America. The Sudan and other countries copied them. However the Sharia law claims precedence in a general sense and the Sudanese courts after the application of the sharia law had to adjust themselves to the sharia concept which is not really very different from what the law used to be before 1983 or the secular law. I then compared and discussed the best known tests to see which one can solve the knotted problem facing us with respect to law of insanity. But I found that none of them offers a permanent solution free of errors; but it may be said that M’Nagten Rules have not failed to address the issue effectively. SItem Ambiguitynf the Borders of Insanity in Criminal Liability(Neelain University, 2003) John Gatwech LulABSTRACT This subject, the Ambiguity of the Borders of Insanity in determining the extent of criminal liability has ever since been a controversial and a thorny issue for courts and medical or psychiatric experts. This having been the case since 1843 and.even before that time, I thought it worthwhile making a thorough research to find out why should that controversy persist at all times despite the judicial and psychiatric advancements achieved over all these years, and hence this thesis wherein I also made suggestions to solve the riddle. It has never been within the capability of judges, lawyer and psychiatrists to draw a definite line separating the completely insane from\ the partially insane so as to be able to know exactly whether the former can be completely absolved from any criminal liability if the act complained of has been proved to have taken place at the time the accused was under that state of mind; while the latter be held only partially responsible for the acts committed in that half-insane state of mind. Even the sane may be mistaken for the half-insane when his behavior at the time of the act is suggestive of some extent of insanity or mental disorder and vise versa. Therefore, there were cases where half-insane persons had to be sentenced to death mistaking their state of mind for sound ones. A certain Barakia Wajo must have been one victim of such mistakes as a result of having no definite formula for knowing where the line lies. It is because of such possibility of mistaking one state of mind for another. That is what necessitated this work, hoping that I may be able to show the whole world how to be exact in drawing the line. This proved difficult although I believe I have added something positive towards a future possible solution as indicated in the two of the three points I made towards the conclusion of chapter five. I say two, because the third one is merely an admission that where the line lies is difficult to define as yet while the first and the second are suggestive of a solution for a uniformity of the decisions in similar circumstances. The first of these is that the principle of ‘the benefit of doubt’ should have full consideration in the defense of insanity. The second suggestion is that ‘partial insanity’ must not be taken in contrast with ‘complete insanity’ and it must be understood that temporary insanity is not is itself (per se) indicative of diminished responsibility since it may be unlike partial, so severe as to amount or reach the extent of complete insanity. . ' These conclusions were arrived at after considering what the definition of insanity is; and after taking into account the historical background of the legal tests as well as whether it is a medical or a legal concept. The confusion caused by the use of such words as ‘insanity’ and ‘mental disorder’ has a significant bearing to the confusion and lack of uniformity in specifying the extent of criminal responsibility; and likewise the question of neutrality of medical experts. It is undoubtedly true that one of the problems that causes the persistent controversy in the issue of insanity when the courts are to decide the extent of the responsibility of the insane or that the accused is not even insane at all is tlle partial position taken in most cases by the psychiatrists. This unfortunately came to be known as the ‘battle of the experts’ where an expert frequently takes side with the one who retained him or called him as his witness. This artificially created situation whereby conflicting experts opinion is intentionally or otherwise given by the opposing psychiatrists confuse the courts more. Therefore, the courts having this in mind and considering the possibility of scientific errors came to believe that there could be no fair finding unless insanity for the purpose of criminal responsibility is considered as a legal concept. This caused a tug of war between the medical experts (psychiatrists) and the courts. The courts for the time being have won this tug of war. So, insanity is now considered as a legal concept and not a medical one although medical opinion is still to be sought by the court and given its due consideration or evidential value. In the Sudan, the battle of experts was experienced in the case of Awad ElKarim Mohamed Ali Bakkar in 1982 when each expert or each team on each side gave contradictory expert evidence in favour of either the defense or the prosecution —i.e. allying with the side which called them as their witnesses. The court as usual had to consider insanity in this case to be a legal and not a medical concept. This case is just an example about what is known as the battle of the experts. Generally speaking, the psychiatrists have not been accurately perfect in setting lines to divide or categorise insanity according to the degrees of severity, and since the difference between the degree of insanity or mental disorder is the formula by which it is decided who should be punished and how severe should that punishment be, it becomes imperative for the courts to step in and reach adecision in whatever way they think just by trying to pin point the indefinable line that separates different states of mind and punishment are decided accordingly. The less severe punishment is for the diminished responsibility asa result of a less severe insanity or mental disorder, definitely the reason for deciding that insanity is a medical concept is because judges and lawyers have their training based on the importance of justice, which is in turn based on necessity of impartiality. This kind of training makes most of thejudges unlike others never to depart from these ethics. But this is not to say that other professionals do not completely observe the ethics of their jobs but comparatively, I maintain that courts are more adhesive to the ethics and principles of law which prohibit partiality. Were courts to have the complete technical know~how to find out with a scientific precision the extent to which one is insane, there would have been no problem of deciding who is to be responsible criminally and to wl1at extent? In the course ' of discussing criminal responsibility with respect to acts of insane people, I immediately found that it is necessary to mention the psychiatric types of mental disorder. However, it is not the work of a judge to enumerate all types of such disorder, how many they are or what their characteristics are, since this is the work of a psychiatrist. At any rate, I had to identify which one is usually the cause of insanity or mental disorder, which affects criminal responsibility. I found that the best known among then are psychoses, neuroses, organic brain disorder and then the congenital intellectual deficiency. The most severe of these being mostly from psychoses —and that is the type known as schizophrenia. The other most controversial state of mind is the psychopathic personality, which develops from neuroses. This thesis is a comparative study based mainly on three jurisdictions which are (1) England (2) United States of America and (3) The Sudan. The law of insanity regarding these three countries has been discussed in this work with some kind of concentration and has been critically analyzed. It has to be noted that the known legal tests in this field originated, in England and United States of America. The Sudan and other countries copied them. However the Sharia law claims precedence in a general sense and the Sudanese courts after the application of the sharia law had to adjust themselves to the sharia concept which is not really very different from what the law used to be before 1983 or the secular law. I then compared and discussed the best known tests to see which one can solve the knotted problem facing us with respect to law of insanity. But I found that none of them offers a permanent solution free of errors; but it may be said that M’Nagten Rules have not failed to address the issue effectively.Item The Experience of The Sudan Constitutional Court In the Field of Criminal Law(Neelain University, 2019-09) John Gatwech LulABSTRACT This abstract is from the Experience of the Sudan Constitutional Court in the Field of Criminal Law which is the research for my Doctoral Thesis presented to the University of Al Neelain. This topic came into my mind as a result of frequent discussion over it between me and my supervisor. From that discussion, it became apparent to me that he was interested in that research and hence my decision to do it although there was an apparent lack of references. I then started to try and find out whether there had been any constitutional issues as far back as from 1821 which is considered as the beginning of the Sudan Modern History. I tried to trace such constitutional issues mentioned until the year 2011 but I could not find any constitutional issues decided during the Turkish rule because at that time, the Turks were mere invaders who cared very little about administration of justice but were contended with the local or customary courts. As for the Mahdia period, from 1885-1898, that administration was more concerned about execution of Sharia law. The Condominium came after that to introduce the British legal system which had no recognition for constitutional courts because its system was based on the supremacy of Parliament. It had no judicial review except at the level of delegated legislation, inferior or subordinate legislation, prerogative writs and administrative decisions. However, in 1953 the British prepared the first constitution for the would be independent Sudan. That constitution was known as the Stanley Baker’s Constitution. It was also known as the Self Government Statute 1953. In that Pre-independent Constitution, Article 10 for the first time in the Sudan legal system set up the Supreme Court to be the custodian of the constitution and all people who may be aggrieved were to go to that High Court (Supreme) for protection or enforcement of any such right as conferred by the constitution. The first military government of 1958 formed military courts which also tried even the civilians, meaning that constitutional rights were not respected. In fact the provisional constitution of 1956 amended 1964 was abolished on 17th November, 1958 which was the day of military coup de`tat. It repeated itself with the military government of 1969 (May Revolution), and this time its leadership enacted laws to immunize themselves against prosecution. This was declared as unconstitutional by the Supreme Court after they lost power in 1985. Another problem which confronted the constitutional court was misunderstanding of constitutional matters by Sharia Judges who were included in the formation of the constitutional court. Among the problematic issues was the determination of the time from which criminal responsibility begins when considering the age of the culprit at the time of commission of offence. The Sharia Judges had their own interpretation in that respect believing that criminal responsibility may not be determined by a set age but should be on a case by case basis considering only signs showing puberty such as may be seen from the arm-pits, pelvic area, menstruation and the like. Therefore, with this concept, children below eighteen (18) years of age were sentenced to death and got executed. This was against the opinion of the civil Judges whose opinion was consistently that the age of majority is legally eighteen (18) years which is the internationally recognized age from which criminal responsibility begins and that is the age recognized by our Interim National Constitution, 2005 as provided for by Article 36(2) of this Constitution which must be read in conjunction with Article 27(3) of the same Constitution in the Bill of Rights. For further clarification, Article 36(2) above provides: Death penalty shall not be imposed on a person under the age of eighteen……This is because such a person of that age is considered a child. As for Article 27(3) in the Bill of Rights, it provides: All rights and freedoms enshrined in international human rights treaties, covenants and instruments ratified by the Republic of the Sudan shall be an integral part of this Bill. Article 36(2) is exactly like Article 33(2) in the Constitution of 1998 in that it prohibits death sentence against those who have not yet attained the age of eighteen. The Sharia Judges in this issue of the age of criminal liability did not have constant but jumpy opinions. Some of the most fanatic of them were of the opinion that Article 5 of the Interim National Constitution of 2005 should be the basis of interpreting all Articles of this Constitution and that none should be bound by what is provided in Article 27(3). But the fact is that Article 5 is only a directive for legislators in Northern States of the Sudan to consider Islamic Sharia and the consensus of the people as the source of legislation. It is to be born in mind that Constitutional Courts do not have the jurisdiction to annul any Article of a Constitution for any reason but it has jurisdiction to declare unconstitutional the provision of any law which is contrary to the constitution. Coming to the conclusion of this abstract, I have got four findings and only two recommendations. They are as follows:- Findings a) Constitutional court in the Sudan came into existence only from 1953 in form of a panel within the Supreme Court. b) Not many people were aware of their constitutional rights until the time of the first Independent Constitutional Court from 1998. c) Amalgamation of Civil and Sharia Judges to constitute one Constitutional Court had its own negative experiences in that they differ in the way of looking at Constitutional issues. The Sharia Judges look at Constitutional issues from the sharia prospective while the civil Judges see the same from the prospective of what the Constitution means and putting into consideration the set international standards. d) Private international Human Rights organizations have began interfering in our court proceedings, saying that our courts do not observe human rights. Recommendations a) The Sharia Judges must be trained to be at the same page with the Civil Judges in understanding Constitutional matters. b) Judges should stick to judicial ethics and principles of fair trial and should never allow any influence whether from international bodies or national institutions. المستخلص هذا المستخلص هو من تجربة المحكمة الدستورية في المجال المذكور في العنوان وهو الموضوع الذى قدمته لنيل درجة الدكتوراه بجامعة النيلين. انه لم يخطر ببالي من قبل ان اختار البحث بهذا العنوان إلا بسبب مناقشتي عنه بالتكرار مع المشرف ومن خلال ذلك اتضح لي انه يرغب في هذا النوع من البحث ومن ثم كان قراري ان اتناوله رغم علمي بقلة المراجع في هذا المجال. من هنا بدأت بالبحث اعتباراً من عام 1821 وهو ما يعتبر ببداية تاريخ السودان الحديث وواصلت في البحث حتى عام 2011م. إنني لم اجد أي مواضيع دستورية في فترة الحكم التركي وذلك لان الاتراك كانوا مجرد غزاة لم يهمهم كثيراً الامور الادارية والعدلية آنذاك وانما كانوا مقتنعين بما كانت عليه الاوضاع بالنسبة الادارية الاهلية في شكل المحاكم العرفية. اما في فترة المهدية من 1885م الى 1898م فان المهام الادارية والعدلية فيها كانت تتركز في تنفيذ الشريعة الاسلامية بينما كان الحكم الثنائي (الإنجليزي – المصري) من 1898م – 1956م يصير على النهج الإنجليزي من حيث الادارة العامة والعمل القضائي الذى ما كان يعترف بالمحاكم الدستورية وذلك لان نظام القضاء الإنجليزي مؤسس على علو او سمو البرلمان حيث لا يعترف هذا النظام بالمراجعة لإلغاء القوانين واعلانها مخالفة للدستور. لا تلغى القوانين في هذا النظام إلا بواسطة البرلمان ولكن توجد المراجعة القضائية في حدود ضيق مثل القوانين الفرعية كلوائح والاوامر الادارية أو القضاء الإداري الخ... ولكن في عام 1953م اصدر الحكم الثاني اول دستور الذى اعده القاضي الإنجليزي استنلى بيكر ليكون الدستور الساري تمهيداً للاستقلال وكان يعرف كذلك بالقانون الأساسي للحكم الذاتي لسنة 1953م أو دستور استنلى بيكر وكانت المادة 10 منه ولأول مرة في نظام القضائي السوداني قد نصت على أن المحكمة العليا هي حارسة الدستور وليلجأ إليها كل من يعتقد ان حقه الدستوري قد سلب او من يسعى للحصول على حقه الدستوري. في عام 1958م اقامت الحكومة العسكرية الاولى محاكم عسكرية ليحاكم فيها حتى المواطنين غير العسكرين مما يعنى ان الحقوق الدستورية قد هضمت (وفعلا تم الغاء الدستور في يوم/17/ نوفمبر/ 1958 وهو تاريخ الانقلاب العسكري). وتكررت المحاكم العسكرية بعد الانقلاب الثاني في 25/مايو 1969م وقد قام الانقلابيون هذه المرة بتحصين انفسهم ضد أي محاكمة حيث اصدروا قوانين لتحقيق هذا الهدف. ولكن وبعد الاطاحة بهم عام 1985م اصدرت الدائرة الدستورية في المحكمة العليا احكاماً قضت بإلغاء تلك المواد او القوانين التي منحتهم الحصانة وأعلنت بانها غير دستورية. لقد ظهرت عقبة اخرى امام المحكمة الدستورية السودانية وهى عدم توافق الآراء في المحكمة الدستورية اذ كان للقضاة الشرعيين في ذات المحكمة رؤية مختلفة عما كان يراه القضاة المدنيين في كثير من المواضيع الدستورية. كان وقت تحديد المسئولية الجنائية من ضمن المواضيع الشائكة عندما تضع المحكمة عمر الجاني في الاعتبار عند وقت ارتكابه الجرم. كان للقضاة الشرعيين طريق او طروق مختلفة لتحديد وقت المسئولية الجنائية اذ يرون ان عمر المسئولية الجنائية لا يمكن تحديده بعمر معين وانه يكفى تحديده بظهور علامات تدل على البلوغ كظهور الشعر في الابط والعانة والاحتلام او الانزال حتى قبل السن الثامنة عشر ولذلك وبهذا الرأي تم الحكم بالإعدام على اطفال تحت السن الثامنة عشر وكان هذا مغاير لما ذهب إليه القضاة المدنيين الذين كان رايهم الثابت هو أن سن البلوغ قانوناً هو السن الثامنة عشر من العمر وهذا متفق عليه على النطاق العالمي بانه هو بداية المسئولية الجنائية وهذا ما يعترف به دستورنا الانتقالي القومي لسنة2005م وفقاً للمادة 36 (2) منه ولابد ان نقرأ هذه المادة بالتضامن مع المادة 27 (3) في وثيقة الحقوق من ذات الدستور وللمزيد من التوضيح فان المادة 36 (2) تقرأ كالاتي:- لا يوقع الحكم بالإعدام على من لم يبلغ السن الثامنة عشر........... ذلك لان الانسان في مثل هذا العمر يعتبر طفلاً. اما المادة 27 (3) من وثيقة الحقوق فهي تنص على الآتي:- تعتبر الحقوق والحريات المضمنة في الاتفاقيات والعهود والمواثيق الدولية لحقوق الانسان المصادق عليها من قبل جمهورية السودان (من بينها العهد الدولي الخاص بالحقوق المدنية والسياسية) جزءاً لا يتجزأ من وثيق الحقوق الواردة بالباب الثاني من الدستور. المادة 36 (2) المذكورة اعلاه منقولة نقلاً من المادة 33 (2) من دستور 1998م وهى تمنع الحكم بالإعدام على من لم يبلغ السن الثامنة عشر. لم يكن للقضاة الشرعيين راياً ثابتاً في موضوع تحديد سن المسئولية الجنائية. فبعضهم وخاصة المتشددين منهم يعتقدون ان المادة 5 من الدستور الانتقالي القومي لسنة 2005م. هي الاساس لتفسير كل مواد هذا الدستور وانه لا يلزم الاعتقاد والعمل بما جاء في المعاهدات والاتفاقيات والمواثق الدولية لحقوق الانسان كما هو منصوص عليه في المادة 27 (3) المذكورة اعلاه. لكن الحقيقة هي أن ما جاء بالمادة 5 من الدستور الانتقالي القومي لسنة 2005م هو مجرد توجيه للمشرعين في الولايات الشمالية من السودان للوضع في الاعتبار الشريعة الاسلامية واجماع الشعب كمصادر للتشريع. هذا مع العلم بان القضاة بصفه عامة ملزمون بالتقيد بنصوص الدستور وان المحكمة الدستورية لا تملك الاختصاص لإلغاء أي مادة من مواد الدستور لأى سبب من الاسباب وانما لها الاختصاص لإلغاء أي مادة من أي قانون متى ما جاءت مخالفةً للدستور. ختاماً لهذا المستخلص فقد توصلت الى اربعة نتائج وهى كالاتي:- لم يكن للمحاكم الدستورية وجود في السودان إلا ابتداءً من عام 1953م في شكل دائرة بالمحكمة العليا. لم يكن للناس او المواطنين الدراية الكافية بحقوقهم الدستورية حتى ظهور المحكمة الدستورية الاولى المستقلة عن المحكمة العليا في عام 1998م. 1- كانت لتجربة اندماج القضاة المدنيين مع القضاة الشرعيين في محكمة دستورية واحدة نتائج غير مرضية وعكسية اذ كانوا لا يتفقون في الرأي في تفسير المسائل الدستورية, ذلك لان القضاة الشرعيين يفسرونها من منظور الشريعة الاسلامية بينما ان القضاء المدنيين ينظرونها من زاوية فهم نصوص الدستور نفسه وواضعين في الاعتبار المعايير الدولية لحقوق الانسان. 2- اصبحت المنظمات الدولية الخاصة (NGOs)تتدخل في المحاكمات مدعين ان محاكمنا غير مهتمة بحقوق الانسان وهذا غير صحيح. التوصيات 1- يجب تدريب القضاة الشرعيين كيفية التعامل مع الدستور دون الخلط بينه وبين الشريعة الاسلامية حتى يواكبوا مستوى فهم نصوص الدستور الذى يتمتع به القضاة المدنيين وذلك تفادياً لعدم انسجام الاحكام. 2- على القضاة جميعهم التمسك بأحكام الدستور والقانون دون التفات لما تدعيه المنظمات الدولية والحفاظ على اخلاقيات المهنة مع تجويد اجراءات المحاكمة العادلة.