السياسة العقابية في التشريعين السوداني واليمني

Abstract

ABSTRACT The research is dealing with the study of policies for both legislators, the Yemeni· and the Sudanese through comparison, analysis, and evaluation of the general trend of both regarding the infliction of punishment in terms of suitability and legality away from the mode of system and the descriptive handling of statutoI)' laws observed or adhered to by several legal sectors which restrict themslves merely on clarification of statutoI)' laws. Beside s the search for the legistIatoe's adminstration irrespective of its sutability and legality or the humanitarian extent. Hence the one who handled this research must follow the proper legitimate concept of punishment or penalty based on the following criteria. 1. Based on the general penal trend in Islamic sharia and Bearing in mind the Islamic statutory laws related to penalty. and penal testimony beside. other related statutory laws in constant relation for completion of its entire parts to form its origins as the base for the branches. ii. The fundamental dependency on the punitive aim which is requested by the penalty, considering the penalty in sharia is for realizing certain aims and destinations, and at the end all lead to combating the crime. iii. To follow the manner being followed at the era of the orthodox caliphs and their honourable companions and to ignore the statements made by the experts in (fiqh) in the Islamic sharia beacause these statements express their understanding or comprehension for sharia, but not the sharia itself THIS RESEARCH CONTAINS FOR CHAPTERS:- Chaprer one: Tackled the crimnal punishment considering it as social excretion and social mecessity that must be taken as exceptional but expressing the needs of the society besides it handled ideative bases and the reality of ciiminal punishment. But the Islamic. Sharia evaluate this on the bases of free will hence it set goals and destination for the punishment. The most important oned are:- The general deterrence, special deterrence, realization of justice, corrections of the offender and as a consequence these punishments resulted in that, they have no religIous impact or impression contraty to what is claimed by some of the experts (fuqaha) in Islamic sharia. Also it tackled the most important qualities and charactaristics of the criminal punishment (principle of legality )and this includes lack of legality for infliction of punishment unless it is already among the current statutory laws. Chapter two: Handled the concept of punishments such as (hudud)cutting edge (qisas) reprisal,(taazir) censure and judgements related to these punishments and cases of waiving by full pardon and prescription. This shows that each punishment is chatacterized by particular judgements. The most important is the (hudud)cutting edge punishment which aims at realizing justice of deterrence or both. At the same time these punishments have one thing in common which is the destination for realizing the aims of the punishment. These several punishments can be taken as a base whenever justice is desired but not in the case of deterrence. In addition to that these punishments can be waived by full pardon or by expiration of the stipulated period. Chapter three:- Tackled th~ policy of both legistlators, the yemeni and the Sudanese from the point of abstention (withholding) or lightening the punishment . It appears that both depended on lack of two elements: the awareness and the free will and their decrease as a criterion for abstention (withholding) the punishment or lessening it. Both legistlators made some cases where punishment is waived because of responsibility and these cases are:- 1. Young person, madness, sleeping, fainting, compulsion and nesessity. ii. Murder is one of the cases where by punishment is lightened in the sudanese legislation if it happened as a result of unsound of mind; nervous, disturbance or psychological diseases, strong provocation, compulsion, necessity ,sudden fight. But in case of yemeni legislation, the punishment is lessened regarding the case of incest , if it happened because of strong provocation as a result of surprise from the wife or the daughter being caught practicing adultry. Chapter four: Is handling the punishments which both legislatorS, the yemeni and the sudanese agreed upon and these are the physical punishments. The most important one is the capital punshment by (hudud) cutting edge, strokes with a whip· . This indicates that Islamic sharia had really managed to keep the punishment of capital punishment at minimun, if it is proven beyond doubt and being decided as capital punishment as (qisas) reprisal or (hudud) cutting edge, according to the Holy Quran and also in case of armed roberry . Besides both legislators differ in two capital punishments by stoning in case of adultry and the crime of apostasy (Riddah)from Islam but in case of mutiny against the government, it has been proven to be political crime and deserves no criminal punishment and its judgements are related to the nation's right or the society in facing and combating those who wage war against the govemment (mutiny) which can be done parallel to the time the crime is happening and not after it in accordance with the constitutional law in the sphere of the state or the international law in the arabic or Islamic sphere. Also the punishment of cutting edge (hudud) had been decided just for the sake of (qisas) reprisal with the aim of realizing justice. But in case of armed robbery and capital theft (hudud) cutting edge is implemented due to the bad need of deterrence. On the other hand the punishments of strokes with whip had been decided and allocated for three crimes only and these are:- adultry, libel(false accusation of unchastity) and aicohlic drinks. Otherwise any issue that exceeds the Islamic legislation in any way is considered as mere means and can be valuated by looking into the efficacy and suitability according to the place and the time. Also this research tackled the punishment that affect liberty which is the imprisonment with its substitutes such as waiving capital punishment (death penalty),lack of pronouncing the punishment and the punishment of obligatory work ( obligation to do) . Add to it the setting up of the security measures for adult, young person and those suffering from unsound of mind and psychological diseases. The research ended by handling the most important financial punishments such as ( diya) blood money and fines also in terms of money. Summary The research contained a number of results and important recommendations.