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Legal Reform Initiative & Judiciary Restructuring.The Fundamental Constitutional Rights by Amin Mohammad Ibrahim Mohammad -Sultanate of Oman & KSA

5/24/2005 10:48 am

Legal Reform Initiative & Judiciary Restructuring.
The Fundamental Constitutional Rights

Dear Colleagues,

Finally when I made up my mind to write this paper, though I can express my opinions more fluently in Arabic, reluctantly I decided to prepare it in English language, in view of the fact that its purpose is to address you along with all Sudanese people amongst whom there are considerable ethnical groups who do communicate more easily, satisfactorily and conveniently in English language, and with whom particularly we need to share not only the opinions contained herein or any other paper, but also the homeland to which we belong, and in which our ancestors had co-existed peacefully since time immemorial, and for its welfare we should be devotedly struggling and exerting all and every efforts .
So if you see this reasoning agreeable but find, and I am sure you will, some flawed English here and there, please excuse me because I could not help being a Nubian to whom neither English nor Arabic is a mother tongue.
The subject matter of this contribution being the basic and well established constitutional principles connected to such rights, whether public or private, communal or individual, derived from the constitutional theories and doctrines developed and declared in the writings of the Philosophers and Jurists, It is therefore preferable to call them collectively the Fundamental Constitutional Rights as defined in the relevant references.
I would prefer further to make extra emphasis here on the fact that the cornerstone of the said rights is the well known Doctrine of Rule of Law, which provides a pair of inter-related principles, namely:
1/Subjectivity to the law, that is to say all persons whether natural or juristic (including Government) are subject to law without exception.
2/Equality before the law that is to say all persons whether natural or juristic (including government) should be on equal footings without any immunity or protection (except that justifiably declared by law) and without any discrimination of whatsoever nature, cause, origin or justification.
These fundamental Constitutional Rights are the very subject of our concern when dealing with the current debate on issues regarding Legal Reform and Judiciary Restructure in the Sudan supposedly started following the signing of the maschowse Accord, on Jan 2005.
As lawyers in the first place and citizens we are very much concerned about the supposedly ongoing legal Reform in our country following the progress of the peace process resulted in" Maschowse Accord" signed on Jan-2005.
So as result of this acute turn brought about , in the political level and socio-cultural atmosphere Sudanese people have witnessed some signals of regaining the deeply rooted democratic values of our people represented in organized activities initiated by active forces of the civil society both at home and abroad. The best example of these signals was the Memorandum of legal Reform and Judiciary restructuring submitted by a group of ex-judges to the President of the Republic of the Sudan and the Leader of SPLA/SPLM and other concerned authorities with a copy to the Head of the Judiciary if my memory fails not me.
In response to that initiative a Sudanese lawyers Forum was established in Muscat, Sultanate of Oman a few months before my departure, where I have participated in the discussion and prepared and presented a paper arguing some of the ideas contained herein, in an attempt to highlight the issues of the said memorandum. In consequence a supporting Memorandum was prepared and submitted by Muscat forum to the same authorities.
Here in KSA (and probably elsewhere) in addition to this gathering of yours I have come across a very compact and excellent paper on the same topic sent from Al Riyadh (Hussein fagiri) suggesting further how to establish the Forum and the operational mechanisms of its organs, branches,…etc.
To conclude what we need now is to covert these gatherings at home and abroad, into a unified Sudanese Lawyers Forum lobbying to achieve the objectives argued and agreed upon by the lawyers with the aim of ensuring their participation in Legal Reform & Judiciary Restructuring using the appropriate tools and mechanism to that effect.

So one of the purpose of this contribution is to invite the attention of all Sudanese lawyers, at home and abroad to the utmost significance of the active and decisive participation in the ongoing legal and Judiciary Reform, in view of the fact that they are the most competent and qualified experts to decide in the matters related to the Legal Reform and Judiciary Restructure from a jurisprudential point of view , as far as taking part in such a task requires in addition to theoretical and practical knowledge of law, certain degree of jurisprudential knowledge and awareness. By jurisprudence jurists mean the science and philosophy of law.

This is not to preclude others or deprive them from exercising their rights in participating, since we have neither reason nor justification to do so l. Not only that but we strongly believe that both the concept of exclusion of others and the rationale behind it should be severely eradicated from our lives because simply they are altogether unjustifiable and unfair, specially when dealing with national issues, whether being in the size of the currently discussed issues or otherwise . So in our opinion nobody has the right whatsoever, to deprive others whomsoever they may be, from their right to participate in making the laws of their land.
Actually I know that a considerable number of the learned lawyers (honorable Judges and legal Advisors in the Attorney General chamber) will find it rather difficult to share with me the opinion of fighting to resume and protect the right of participation ( equivalent in my view to the right of being heard according to the rules of Natural justice). In fact and with due respect and appreciation to their reluctance to response to such an invitation probably lest of being prejudiced or influenced in the performance of their duties by reason of their taking such a part in matters tending to get them involved into socio-political conflicts in which they are absolutely unwilling to participate justifiably. But with due respect to the learned lawyers, we must distinguish and differentiate clearly between indulgence into ideological and political a activities and conflicts, and the mere task of participation in making the laws of their land and deciding on how justice should be administered in our country, because these are obviously two different matters .
In my books it is high time to call all these gatherings at home and abroad to establish a united forum of Sudanese lawyers who believe in a united Sudan of multi-ethnic, religious, culture….etc groups, who can only co-exist peacefully in a country governed by rules recognizing such factors of various diversities and reflecting them under laws of a democratic nature.

No need to state or remind you that the continuous infringements of the aforesaid rights followed by or coupled with violations of laws, that we had experienced under the different military/civilian regimes, since the independence have learnt us much more about the importance and necessity of such rights in all the countries nowadays all over the world, let alone a country like the Sudan, and have added at the same time to our moderate theoretical opinions regarding the same considerable practical knowledge's, that may assist us to use perfectly and properly the appropriate measures to protect and safeguard these fundamental constitutional Rights and these measures are as follows :-

Firstly: Embodying these Fundamental Constitutional Rights in the transitional/permanent constitution in addition to the principles of the international Declaration of Human Rights and all other relevant conventions. Such constitution shall contain an article declaring that all laws, rules and administrative orders which contravene those rights as unconstitutional and therefore null and void. The provision of the said Rights should be in a separate chapter immune from amendments unless such amendments were sought to add more (newly recognized and acquired) rights and entitlements.
Secondly: Forming and structuring of a truly independent Judiciary capable of defending its independence in the first place as a criteria and proof of its ability to safeguard and protect the constitution and the constitutional right of the citizen's covered by its rules and principles.

So the real reason for inviting the learned lawyers without exception in taking part in the legal reform and restructuring the Judicial organs professionally is that we consider it not only as a national and legal duty but also as amoral duty of a first degree. So by inviting them to gather and convene to participate in all and every efforts tending to make and pass the Constitution and laws, along with deciding the way justice should be administered in our country, we are actually encouraging nobody to get involved in political struggling and conflicts.

Reliance being made on your broadmindedness and integrity, then your valuable and necessarily criticizing comments are of utmost significance to enrich and increase the benefits of this contribution, but let me appeal that in dealing with this serious matter our approach should be rather practical if the adoption of (mere) theoretical or academic ones is not expected to produce and bring about the crutially required consequences shown in this contribution.
Thanks and best regards,

Amin Mohammad Ibrahim Mohammad
Legal Consultant
Member of Sudanese Lawyers Forum
(Sultanate of Oman & KSA)

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