Sources On Arab Judiciaries
United Arab Emirates
Constitutional Provisions On The Judiciary
Structure Of Court System
Personal Status Issues
Appointing/ Assigning/ Evaluation Of Judges
Administration And Relationship With The Ministry Of Justice
Specialized Courts And Their Jurisdictions
Arab Judicial Structures
A Study Presented To The United Nations Development Program
by Nathan J. Brown
The current Sudanese judicial system is the product of several diverse sources of influence. First, Sudan is predominantly an Islamic society as well as a member of the Arab League. Thus, there is strong influence of the shari`a on Sudanese law, as well as influence from the civil law systems adopted in many Arab countries. Second, Sudan also has a federal system giving it a degree of internal legal diversity matched only by the (far smaller) UAE in the Arab world. Finally, during the colonial period, Anglo-Saxon common law influenced Sudanese legal development more than other countries that were controlled by Britain. The result today is an amalgamation of these different traditions. Indeed, much political debate in Sudan since independence has focused on the proper legal and judicial system for the country.
- Constitutional provisions for the judiciary
Since independence, Sudan has experienced several dramatic political changes. After each change, a new constitutional order, with new provisions for the judiciary, was enacted. Sudan received its current constitution in 1998.
Article 99 Judicial competence in the Republic of the Sudan shall vested in an independent authority to be known as the " judiciary" to assume the judicial power in adjudication of disputes and judgments on the same in accordance with the Constitution and the law.
Article 100 The judiciary shall be responsible for the performance of its work before the president of the republic.
Article 101 (1) Judges are independent in the performance of their duties and have full judicial competence with respect to their functions; and they shall not be influenced in their judgments. (2) A judge shall be guided by the principle of the supremacy of the Constitution and the law and he shall protect this principle, giving due regard to the establishment of justice in thoroughness and impartiality without fear or favor. (3) State organs shall execute judicial judgments.
Article 102 (1) The judiciary shall have a president to be known as the "Chief Justice" who shall be the president of the Supreme Court and the Supreme Council of the Judiciary and be responsible for the administration of the judiciary before Supreme Council of the Judiciary. (2) The judiciary shall have a council to be known as the "Supreme Judicial Council." Its composition and functions shall be prescribed by law. Its functions shall include planning and general supervision over the judiciary and presenting recommendations to the president of the republic for the appointment, promotion, and termination of service of the judges, as well as the preparation of the budget of the judiciary and expressing opinion on legislative bills relating to the judiciary.
Article 103 The judicial structure shall consist of a supreme court, appeals courts and courts of first instance. The structure shall be organized by a law that specifies divisions, jurisdiction and any other matters relating to the judiciary.
Article 104 (1) The president of the republic shall appoint the chief justice and his deputies according to law. (2) The president of the republic shall appoint other judges upon the recommendation of the Supreme Judicial Council. (3) The law shall determine the terms of service, discipline and immunities of judges. (4) No judge shall be removed save under disciplinary measures and upon a recommendation from the Supreme Judicial Council.
Article 105 (1) There shall be established an independent Constitutional Court. The president of the republic shall appoint its president and members from persons of high experience in matters of justice, with the approval of the National Assembly. (2) The Constitutional Court shall be the custodian of the constitution and shall have the jurisdiction to consider and adjudicate any matter relating to the following: (a) interpreting constitutional and legal provisions submitted by the president of the republic, the National Assembly, half the number of governors or half the States' Assemblies; (b) claims by the aggrieved for the protection of freedoms, sanctities or rights guaranteed by the constitution; (c) claims of conflict of competence between federal and state organs; and (d) any other matters referred thereto by virtue of the constitution or the law. (3) The law shall determine the number, emoluments of the judges, and the procedure of the court.
Article 106 Legal counsels working in the public service and attorneys shall strive to express the values of justice, truth, legality, protection of public and private rights, tender advice and render legal services to the state and citizens, and shall perform their functions truthfully and impartially in accordance with the constitution and the law.
Article 107 (1) The profession of advocacy shall be established to express the values of justice, the righteousness and legality, fend off injustice and seek conciliation between adversaries, observe neutrality in the just proof of right, impartiality in pursuit of the truth and facilitate legal aid for the needy in accordance with the provisions of the law. (2) The law shall regulate the conditions for the practice of the profession.
Article 127 (1) There shall be established by federal or State law an Employees Justice Chamber for employees in public service, having competence to consider and determine the grievances of employees; and the law shall specify its functions and powers. The supervision and appointment of the president of the Chamber shall be by the president of the republic or the governor as the case may be. (2) Decisions of the Employees Justice Chamber shall be final, not to be reviewed by courts.
- Structure of court system
Sudan's 1998 constitution is unusual in prescribing the various levels of courts. Like most of the Arab world, Sudan's courts of general jurisdiction have three levels. The courts of first instance are either general (`amm) or summary (juz'i). The second level consists of appeals courts (isti'naf); the Supreme Court (al-mahkama al-`ulya) stands at the apex of the order.
- Personal status issues
Until 1983, Sudan had separate personal status courts. At that time, the civil court system and the personal status courts were unified. At a later date, a new code was issued for personal status law. The 1998 constitution implies a unified system, though it does not explicitly require it.
- Prosecution system
Sudan has not completely adopted the niyaba system and prosecution remains an executive-branch function under the Ministry of Justice. In recent years, the minister of justice has simultaneously served as attorney general. There is a separate prosecutor general who is quasi-judicial but serves in the Ministry of Justice.
- Appointing/assigning/evaluation of judges
According to the 1998 constitution, the chief justice and the senior judges are appointed directly by the president of the republic. Other positions fall under the Supreme Judicial Council, which consists of the chief justice, his deputies, the directors of judicial agencies, the prosecutor general, the head of the Bar Association, and the dean of the College of Law at the University of Khartoum. Sudan is unusual in including public figures who belong neither to the judiciary nor the executive branch in its judicial council. Most of the evaluation and administration of the judiciary falls to the chief justice, sometimes working with the Supreme Judicial Council.
- Administration and Relationship with Ministry of Justice
Both the constitution of 1998 and the 1986 Law of the Judicial Authority require that the Supreme Judicial Council prepare the judicial budget. Much of the oversight and implementation falls to the chief justice along with the Supreme Judicial Council.
The position of chief justice is far stronger in Sudan than it is in most of the Arab world. Some of the supervisory and administrative functions shared between the Ministry of Justice and the judicial council in many Arab countries are assigned instead to the chief justice in Sudan. While this gives the judiciary more autonomy from the Ministry of Justice, the fact that the chief justice is a presidential appointment is of greater significance.
- Specialized courts
The 1998 constitution provides for two specialized courts. First, a constitutional court was constructed (and shortly after the constitution was adopted, the new court was created). The court is authorized to issue binding interpretations of the constitution and entertain constitutional challenges (including from individuals, provided that all other remedies have been exhausted). The members of the court are appointed by the president with the concurrence of the National Assembly.
Second, a special "Employees Justice Chamber" exists for grievances of those in public service. Its decisions may not be appealed to the regular courts.
In addition, in some southern areas, tribunals exist to settle disputes within local communities.
Finally, Special Courts can be created under a 1989 law. These combine military and civilian judges in a variety of cases. They are probably most prominent in security cases, but the government has also called upon them to deal with the backlog of criminal cases. No appeal to the regular courts is possible, though they are supposed to follow the same procedures as the regular criminal courts. Those convicted may appeal to the chief justice.
- Judicial education
Sudanese judges are expected to undergo a year of specialized judicial training and a year of practical training after receiving a law degree.