“Measuring the Public Feelings without asking the public .. Are public feelings measurable?!
It’s egregious how many loopholes are in the law. The law which prosecutes those who ‘ annoy the public feelings’. If people’s feelings are annoyed, then how many people are required to be annoyed and to what extent must they be annoyed? How is a distinction in law made between irritation and annoyance The law does not have a mechanism for defining what’s hurtful to the public. The vague text is conjoined, however, with a specific enactment does not guarantee the sovereignty of justice and Rule of Law .
“ ….which causes annoyance to public feelings, shall be punished, with whipping, not exceeding forty lashes, or with fine, or with both”
Provision No. (2-152), Criminal Act 1991, Sudan’s Law
How many loopholes are in the law? The law, which prosecutes those who ‘hurt the public feelings’, but who measures the ‘Public Feeling’, who sees and measures to what extent and how many people are annoyed? And when does a group of people become ‘the public’?
The law which originally aimed to promote justice, stands in opposition to Human Rights declarations and conventions which Sudan is signatory to and has ratified to some (which are included in the Interim Constitution, and therefore should be a responsibility for the Government to enforce) . The law also emanated from a place blind towards the cultural, ethnic and religious diversity of Sudan, statics counts at least 570 tribes with various traditions and norms, and studies refers to several religious affiliation: Islam, Christianity, African and Local believes to non-religious, of which estimated as (approximately) 40% non-Muslims.
Current laws  operates in Sudan, and enforced equally in a way blind from the commitments of the Government towards the Human Right’ declarations and agreements, and respect to the citizens; the so-called “Public Order” laws which is reflected in fact in (Criminal Act provisions 152-156, Public Order Law in Khartoum State, Criminal Procedures’ Act).
Within the Criminal Act, provisions: 152-153 of the Criminal Act 1991,states:
Provision No.(152) entitled: ‘ indecent and immoral acts’
(1) Whoever commits, in a public place, an act, or conducts himself in an indecent manner, or a manner contrary to public morality, or wears an indecent, or immoral dress, which causes annoyance to public feelings, shall be punished, with whipping, not exceeding forty lashes, or with fine, or with both.
(2) The act shall be deemed contrary to public morality, if it is so considered in the religion of the doer, or the custom of the country where the act occurs
I don’t attempt to open a path for a discussion on the sources of the law in this Article, but I want to re-think loudly about the core/aim of the law (as a tool for a civilized and balanced “Social organization”), leading the organization of the responsibilities and rights within the society (without repression), and taking into considerations the social, cultural and natural elements of Sudan as a country.
The Criminal Act, was implemented in Sudan in 1991, -in the early years of the regime, after the military coup in 1989, when they were strongly fostering the so called ‘Islamisation of the political and social system’. The Regime at that time stopped the operation of the multi-party system and controlled the assets and both the human and material resources of political parties. also the parliament was locked, and thereafter, the new regime with a one party system, dominated all the arms of governance: the legislative, the executive and the judiciary authorities. This contradicts a basic democratic concept, the ‘Separation of Powers’ the requirement to separate the three authorities in a country to ensure the rule of law and democracy, and safeguard the implementation of transparency and accountability in governance, as well as taking into consideration a wide range of public participation that addresses people’s and groups’ interests.
In considering the above law and it’s enforcement, there are various factors to be considered:
(1) The process with which this Law had been passed in the Parliament, does it represent what people want? Was the process of drafting and passing this law democratic? Was it participatory? Was it inclusive? …Is it legitimate (according to the historical review above)?
(2) The vague text which mentions: ‘public morality’, ’immoral dress’, ‘annoyance to public feelings’, ‘the custom of the country where the act occurs’ which contains no specifications, gives a space for targeted and selective enforcement of the law, which can easily become a mechanism for political and/or personal subjugation.
(3) The law gives no means for measuring the ‘public’ mentioned, which makes the will of 40 millions citizens, imaginary and even more, gives authority to compulsory implement this image which have been envisioned in the minds of the law enforcers with no ceiling for implementation of those visions and assumptions.
Here comes to mind what Montesquieu wrote in his book ‘The Soul of Laws’ explaining the role of law as one of the social organization means that ‘Every society has it’s law which goes in harmony with it’s social and natural environment’, in other words, the Rule of Law should sovereign, the law mentioned here is the law which comes from the people; taking into considerations the diversity and ensures the respect for all the components of the society in an equal manner (and this expresses the need for a free and democratic sphere in which the laws should be discussed. A democratic process guarantees the participation of people and reflects their opinions and will, and reaches a result, that represents the majority while respecting minorities). The fear of merging the three authorities and melding them together, is a reality in this case, and this ‘domination of authorities’ provides the freedom and power to the regime. Which in this act resulted in defining, for example : for the Muslim in Shaygyia tribe, the same as for the Tabusa Tribe member (equally) what should be ‘Public’ for them and enforcing that by a law, defining what they should dress, and how they should act in public arenas, as well as what they want, what annoys them, what is hurtful and what is not, as mentioned in the provision above.
Despite the fact, which is found in many cultures in Sudan, that the part of the Tabusa tribes tradition is that nobody is to wear clothes in the tribal area. If you wear clothes, they may think you disrespectful to the Tabusanorms, traditions and unwritten laws. Imagine now, if the Tabusa, rather than the Jalia and Shagia, were in power (and that power were as all-imposing as that of the current regime), and they are the legislatives, the executive and the judiciary authority, the selling of clothes would have been a prohibited act- according to Provision (152) in the Criminal Act 1991.
The above example of the variety and deviation of norms and traditions within the society, applies to most of the Sudanese cities and societies. Immigration, war and displacement, working and economic conditions, marriage, etc. are some of the factors which are making Sudan’s geographical locations increasingly ethnically and traditionally diverse, the Sudanese cities and areas are no longer closed on one ethnic, religious or cultural group (we could find members of Tabusa and Shygia tribe as neighbors in Khartoum or in South Kordufan), which makes defining and measuring a dynamic and relativity -factor as ‘morals’, a very tough if not an impossible job. So how does the law overcome this problem ???
In the case of this law, the people of Sudan has never been consulted as to the definition of what ‘annoys’ them, the text was written by the philosophers of the regime and has been enforced by the ‘executive arm’ of the same School of thought. The people have neither been involved in a referendum or opinion poll or any mean of public opinion measurement. The law was not agreed upon in a free and fair process; in a parliament representing the diversity of the Sudanese society.
The fact that this law has not been passed through a democratic, fair and participatory –not even inclusive- process, questions the aims behind the law as a mean for social organization. The exclusivity of the process–and eventually the result- not only excluded citizens on cultural, ethnic, tribal, religious basis, but it was more of a power oriented approach to participation, as this segregation hasn’t been only imposed on non-Muslims, but the law actually fostered only one Islamic school of thought ‘Radical Islam’ and has thus alienated Muslims those who belong to modern schools or other Islamic schools of thought.
The laws as a tool for social organization -and not repression-, should allow the government and the whole society to reach it’s over goal, which is bringing welfare to its members ; a goal can never be reached without respect for human’s dignity and ensuring social justice.
The stories about the implementation of the ‘Public order’, ring a loud and noisy bell of suppression, discrimination and disrespect for diversity within the society. The Law, which continues to operate, despite the critical political situation of today, and the implications which can lead the country -in association with several similar factors- to disorder, may not wait for Public order law to put it in order again.(See a debatable Video created an outrage in Khartoum upon its appearance- on a girl being flogged by the police)
This situation urgently calls for a pause to assess the impact of the existence of this provision and its enforcement, assess the exclusion and marginalization of people from the law making processes. And this must be included at the Constitutional Review and should be included to assure a wide inclusive, participatory and consultative Constitution-making process which should be agreed upon prior to the end of the Interim Period.
Thus, before this diversity becomes an even greater cause for more violent conflicts. This brings to mind two quotes from people who had endured similar experiences in their communities. One is Saint Augustine’s, ‘An unjust law is no law at all’, and another is Lisa Macdonald’s, ‘when injustice becomes law, resistance becomes duty’. The duty which can be carried out in a violent manner, and then, neither the Islamic- radicals nor the existing ‘government’ will shoulder the blame for the crucial results, consequences, and the historical responsibilities of such events.
تم النشر قبل 14th November 2011 بواسطة Asma Ismail
Originally published on http://asmabridge.blogspot.ca/2011/11/out-to-save-public-disorder-of-public.html