مشروعية سلطات الضرورة في النظم الدستورية بالتركيز على النظام الدستوري السوداني

Abstract

This study tries to decipher one of the most important issues nowadays; Martial Laws or the "Authority of Emergency" from a constitutional point of view in one hand, comparing it to the other constitutions and the Sudanese previous constitutions on the other hand. Concentrating of Sudan's Constitution 1988 in order to figure out our position with regards to the other legal international constitutions. In addition to that, Martial Laws cause a lot of trouble whenever they are implemented, for example, the State, it's constitutional or economic corporations, or the national top priorities, may face obstacles or difficulties, which pushes the executive authority represented in the president of the republic, to declare Martial Las, to address the situation. Always, such laws come into question whether they are legal or not. Is a matter of legal controversy, whether the president act constitutionally under such circumstance ... etc. It worth mentioning that Martial Laws were in effect in Egypt for many years they were becoming day after day a fact condition. Continuous renewing of such laws normalizes their existence. Moreover, the situation in Sudan is similar since the president has declared Martial Law on the 4th of Ramadan 1420H or the 11 th of December 1999, and dissolved the parliament. It's universally accepted that certain conditions may arise where declaring Martial Laws become necessary. One would mention the French constitution, amended in 19568, article (16), also the Egyptian constitution for 1971 has stated in article (74) procedures for declaring martial laws, the Sudanese constitution for 1988 has mentioned in chapter two, article (131,132,133) and necessitates the implementation of the Martial Law. From what has been said, it is procedures to study what calls and necessitates the implementation of the Martial Laws. This study tries to trace back it's origins in Sharia Laws and so forth to decide the legitimacy of Ramadan's Laws. The study composed of three chapters, chapter one discusses the legitimacy of the Martial Laws, its justifications in Sharia and other constitutions, moreover how they are related to democratic regimes; and what are the penalties of violations if committed. Chapter two is concerned with the "Theory Necessity" in Islamic Law "Sharia" its definitions, and rules. Finally chapter three discusses the concept of necessity and difference between sovereignty acts and discretion power, how they addressed and in other constitutions dealt with how the Sudanese previous constitution addressed the issue through various chapters and articles.