- Step 1. Interviewing the victim and collecting primary data
- Step 2. Intervening as representative of the victim
- Step 3. Procedural issues in this type of cases
- Step 4. Appealing decisions affecting the interests of the victim
This article aims to assist practicing lawyers who defend women rights to the best ways to defend women rights especially those who protect women from violations of privacy for religious reason such as special dress of hijab. The Sudanese legislature put certain standards for the so called decent dress, one of which is Islamic hijab. This article is an attempt to raise the awareness of practicing lawyers about the procedures to be followed from the arrest of a woman by police until the exhaustion of all stages of litigation.
The Sudanese Penal Code contained a rather loose text that it called “indecent acts’ which includes an obscure description that has for a long time been, and still remains, a true legal dilemma, and has led to gross violations of human rights. Women have received most of these violations since they are the most targeted category by police officers on the issue of “obscene outfit”.
The standards of the so called indecent dress are provided for under article 152 of the Criminal Act of 19911. The first paragraph of the article of the article specifies two acts that constitute the material and moral pillars of the crime of indecent acts that violate the public morals, the first of which is indecent behavior that violates the public moral, and the second is the obscene outfit which violates the public morality. By reading the text of the article, it is clear that it contradicts the Constitution and contradicts the principles recognized in the legislative drafting of penal laws, which require that the text be clear and precise so that it cannot be interpreted differently. The legislator, in his attempt to put society in a specific cultural mold, assigned the identification of dress in violation of public morals to a particular religious authority, and the custom of the country. This orientation is evident through the two criteria that the legislator set in the second clause of Article (152) to determine what is an outrageous act or dress, which are: religion and the custom of the country.
Step 1. Interviewing the victim and collecting primary data
Although the crime of indecent dress has a negative psychological effect on the victim, besides the intervention of personal affairs of the victim, the law classifies it as a simple crime where the accused person may be released on bail in the same day of arrest, and rarely that the accused spends more than one day in the police custody. On the other side, there is strong call within the community to abolish this article from the penal code. So, the lawyer when meets the victim at the police custody or after her release on bail, shall take the personal bio data of the victim and the facts of the case. Also, it is important to ask about the witnesses who have attended the arrest by police, their names and addresses.
The lawyer has to investigate about any allegation of sexual harassment by the police, because harassment is a common practice in this type of cases, and if it happened to be the lawyer has report this immediately.
Here we will focus on “obscene outfit” because it is the part which is used more frequently by policemen against women.
The criterion of religion, although it did not specify a particular religion, but considered by the legislator as the religion embraced by the person who commits the act, constitutes a complex problem in its understanding and interpretation by the courts of law. To begin with, the adherents of a specific religion are often in disagreement as to what should be regarded as an “obscene outfit” according to that religion. Islam, for example, has not provided an accurate description neither in the Holy Quran nor in the Sunna (prophetic tradition) of what should be worn by a Muslim. Besides, religious sects within the same religion disagree among themselves regarding the form/description of the outfit. Thus, the text of Article 152 is one of the major texts that discriminate between citizens on the grounds of religion.
As for the other side of the dilemma, it is embodied in the actual practice of court applications, as most judges see that religion is Islam and nothing else, basing their argument on the following verse: “The religion before Allah is Islam (submission to His Will)” (Al Imran, :19). In the case of the government of Sudan vs. F. A. A. (2015/2266) before the Bahri Criminal Court (Souk Bahri), the judge stated that he applies Islam only disregarding any other religion, even though the accused was Christian. There is another law that the judge relied on regarding what his decision and it is the Law of Judicial Provisions of 1983, which the judge, under article 32, a wide discretion to apply the well known principles of Islam Sharia. This law opened the door wide for the Sudanese courts to apply the Islamic sharia law in the absence of an explicit legal text, and this law had the primary role in the ruling of apostasy against Mr. Mahmoud Mohammed Taha, as apostasy was not a crime stipulated in Sudan's Penal Code of 1983. Although this law was amended to include civil rather than criminal matters as it did previously, the practice of the courts demonstrated that many judges still rely on it to fill the void in criminal texts as is the case in the interpretation of the text of Article 152 above to include even non-Muslims .
As for the second criterion – the custom of the country – which has been adopted by legislature as a means to determine what an “obscene outfit” is, we don’t have the slightest doubt that the custom of the country cannot be determined in one state in Sudan, not to mention Sudan as a whole – a country is known for its unique ethnic and religious diversity and whose people speak over a hundred languages. Therefore, we see that the text of this article contradicts with the golden rule that is recognized in all constitutions and laws of the world, viz: there is no crime and no punishment except with a text that criminalizes the act and states a punishment for it. Furthermore, it is contrary to the explicit text of the fourth paragraph of Article 51 of the Constitutional Declaration which reads as follows: “it is not permissible to charge any person with an act or abstention from doing an act unless that act or abstention from doing it constitutes a crime when committed.”
Practice in the courts of Public Order or Criminal courts has also demonstrated that a judge is often an adversary and a judge in the case. According to the procedures followed in many cases, the court does not listen to a complainant or witness an accusation, nor does it listen to defense witnesses, but rather establishes a judgment in the crime based on the judge’s prior doctrine and personal knowledge, not judicial his knowledge as stipulated in Article 14 of the Evidence Act of 1991. The Sudanese legislator considered the evidence that is based on the personal knowledge of the judge an invalid evidence, as stipulated in Article (9) of the Evidence Law of 1994 that: “subject to the conditions for accepting the evidence mentioned in this law, the evidence is considered to be refuted in any of the following cases: …(B) evidence based on the judge's personal knowledge”. The Court of Appeal ruled in a Shari'a case (Journal of Judicial Judgments of 1974 p. 8) that it is not permissible for the court to rule on the issue of the case before it with what it hears or concludes, nor with what it knows if this is not extracted from the statements of the opponents themselves or their witnesses, which is fixed in the record, as the opponent cannot be faced with evidence that does not allow him/her room for discussion.
Step 2. Intervening as representative of the victim
According to Advocacy Act 1983, the licensed lawyer is considered a public attorney and has the right to represent clients without any need to show a power of attorney or any other document to the court.
The lawyer needs to play his/her part in resisting the breach of procedures based on these grounds and supported by other texts in the Constitutional Declaration or international conventions of human rights, so as not to allow the court at liberty to proceed with the case without witnesses or in violation of sound legal procedures.
In these cases the Court usually hears the case summarily, without defense witnesses, but the lawyer has the right to ask the court to hear defense witnesses, and he/she is advised to hear the testimony of persons who have good knowledge about the customs and traditions of Sudanese people with regard to cloths and dress which reflect the cultural diversity in Sudan.
There is no way to condemn a person except by leaving the lines of the law and reading what is behind them, and here lies the conflict between the law and the constitution. If the legislator were to impose a specific costume on women such as that imposed on them in schools and some universities, the text would be correct in terms of legislative drafting of criminal texts. After that begins the journey to search for constitutional rights for those whose religion, custom or personal choices conflict with the uniform.
Another important aspect is the right of anybody to choose the dress that best suits them or their taste without the guardianship of anyone. This is what falls within the section of personal freedoms stipulated in the Constitutional Document and international human rights treaties ratified by Sudan. This leads us to talk directly about the unconstitutionality of Article 152 of Sudan’s Penal Code of 1991. This matter is very important because it is considered a strategic litigation that benefits the general members of society in declaring that this article is unconstitutional because it contradicts many constitutional principles.
Step 3. Procedural issues in this type of cases
The procedural way to claim lower courts to apply the constitution is the strong opinion which holds that ordinary courts, as opposed to Constitutional Courts, are obliged to apply the provisions of the Constitution, in some respects, and that the matter is not exclusive to the Constitutional Court. In the case of a petition to that effect any court other than the Constitutional Court, some clarification was needed that this petition does not demand the court to carry out the task of the Constitutional Court and thus declare Article 152 of the Criminal Code unconstitutional, but that the lawyer appeals to the court not to apply any text of a legal conflict with the provisions of the Constitutional Declaration in general and the Bill of Rights in particular. The guide in this view is the text of Article 6/2 of the Law of Interpretation of Laws of 1974 which reads as follows: “If any text in any law conflicts with any provision of the Constitution, the provisions of the Constitution prevail to the extent that removes that conflict). Paragraph 3 of the same article states that: “the provisions of the subsequent law shall prevail over the previous law in a measure that eliminates the conflict between them”. Thus it is clear that those concerned with the application of these provisions are ordinary courts (rather than the Constitutional Court), because the Constitutional Court, by virtue of its function specified by the Constitutional Declaration and its special law, does not comply with any other law when this law contradicts with the Constitution and the international conventions ratified by Sudan .In other words, the legislator, when he laid down the text of Article Six of the Law of the Interpretation of Laws of 1974intended to be applied by ordinary courts .
As the itself in Article 66 stipulates “none of the rights and freedoms set forth in the Constitutional Declaration may be compromised”, and that “this document shall be safeguarded, protected and applied by the Constitutional Court and the other competent courts, and its application shall be monitored by the Human Rights Commission. Simply put, we see that the the lower courts are obliged to apply the provisions of the Constitution when there is a conflict between the provisions of the law with those of the Constitution. In the precedent of the government of Sudan against M. R. M. (Journal of Judicial Judgments 2007, p. 141 that “the constitution is above the law and must be followed and that the text of Article 156 of the 2005 Interim Constitution must be applied and that the provisions of the Constitution are above the law support our opinion that we had on this point.
In general, these points can be summarized in the fact that the issue of outfit/clothing is a personal matter and that the state must not interfere with its police and judicial organs in determining it, as no one has the right to impose his religion on another or to impose his understanding of religion within a specific sect over others. Religious freedoms are safeguarded under the Constitutional Document and international human rights instruments.
Step 4. Appealing decisions affecting the interests of the victim
If the Court of first instant convicted the accused woman under article 152 of the Criminal Act and sentenced her to flogging, the lawyer shall request verbally the suspension of sentence immediately according to article () of the Criminal Procedures Act4, and then the lawyer has to appeal this decision to Court of Appeal within 15 day from the date of decision according to article () of the Civil Procedures Act of 19835. If the Court of Appeal supported the decision of the Court of first instance, its decision should be appealed to the Supreme Court. And if the same happened at the Supreme Court, then the appeal should be submitted the Review Circuit at the Supreme Court.
Finally, after the exhaustion of these stages of litigation, the lawyer shall submit a constitutional action before the Constitutional Court claiming the Court to declare unconstitutionality of articles 152 of the Criminal Act 1991 and to declare the accused innocent.