Chapter 2, Part 2: His Law Books: Criminal Procedure, the Penal Code and Kuwaiti Penal Law

4. Principles of Criminal Procedure: Al-Matba'a al-Jadida, Damascus, 1987, 4th Edition

The book runs to 1,199 pages and has an introduction in two chapters and eight parts. In the first chapter of the introduction the author defines criminal procedure (the difference between civil and criminal procedure, the difference between the criminal and the civil action, the rules on which criminal procedure rests, and the essential characteristics of criminal procedure). In the second chapter of the introduction he traces the development of criminal procedure (systems of private complaint, criminal procedure among the Arabs before Islam, criminal procedure in Islam, and the principal criminal systems: the accusatorial system, the inquisitorial system, the social defense movement, and criminal procedure in the socialist countries).

The first part of the book covers the public action in six chapters: the first examines the judicial police, the second the public prosecution, the third the institution of the public action, the fourth the bars to instituting the public action, the fifth the defendant in the public action, and the sixth the intervention of third parties in the public action.

The second part, titled "The Civil Action," has four chapters: in the first the author deals with the purpose of the civil action, in the second with the parties to the civil action, in the third with the courts competent to hear the civil action, and in the fourth with the lapse of the civil action.

The third part of the book, titled "Criminal Jurisdiction," has five chapters, in which the author deals with the organization of the courts in the first, the jurisdiction of the criminal courts in the second, the extension of jurisdiction in the third, conflicts of jurisdiction in the fourth, and the transfer of cases in the fifth.

The fourth part, titled "The Theory of Proof in Criminal Matters," has seven chapters: the first deals with the theory of evidence, the second with confession, the third with testimony, the fourth with presumptions, the fifth with documentary evidence, the sixth with expert evidence, and the seventh with the judge's personal knowledge.

The fifth part is titled "The Preliminary Investigation" and has nine chapters: the first deals with general principles, the second with how the examining magistrate is seized of the public action, the third with the safeguards of the investigation, the fourth with the warrants the examining magistrate issues, the fifth with detention and release, the sixth with letters rogatory, the seventh with the examining magistrate's decisions once the investigation is over, the eighth with the sanctions attached to the rules of investigation, and the ninth with the referral judge.

The sixth part is titled "The Final Investigation" and has six chapters. The first deals with the features of the final investigation (publicity, orality, and the presence of both parties), the second with procedure before the court of first instance, the third with procedure in the magistrate's court, the fourth with the trial of juveniles, the fifth with the trial of felonies, and the sixth with the pronouncement of judgments.

The seventh part examines the means of challenging judgments and has five chapters: the first deals with opposition, the second with appeal, the third with appeal in cassation, the fourth with cassation on a written order, and the fifth with retrial.

The eighth part has five chapters, and its title is "Res Judicata." In the first chapter the author deals with the conditions for pleading res judicata, in the second with the effect of criminal judgments on the public action, in the third with the effect of civil judgments on the public action, in the fourth with the effect of criminal judgments on the civil action, and in the fifth with the enforcement of criminal judgments.

In the introduction to this fourth edition the author says that, under the influence of experience and with the passing of the years, he abandoned some of the views he had held in earlier editions, developed others, and adopted new ones that had convinced him they did more to achieve justice.

He adds that this edition answers a pressing personal wish of his: to develop criminal jurisprudence in the country and to provide a detailed study of a fundamental law, one with a distinctive role in establishing justice, achieving equality among citizens, safeguarding rights and dignity, and drawing the clearest possible line between the right of society and the right of the individual. This requires strengthening the independence of the judge and doing away with every piece of legislation that departs from legal legitimacy.

5. A Detailed Commentary on the Penal Code: The General Part, published by Al-Matba'a al-Jadida, Damascus, in 1990, in 1,152 pages. The book opens with an eight-page introduction, followed by an introduction to the study of criminal law in two sections. The first has three chapters, titled "Law in General," "The Nature of Criminal Law" and "The Auxiliary Sciences of Criminal Law." The second section has four chapters: the first on the primitive stage of criminal law, the second on the religious stage, the third on the political stage, and the fourth on the philosophical stage.

After the two-section introduction come the three books that make up the work: the first book deals with crime, the second with punishment, and the third with international criminal relations.

The first book ("Crime") has four parts. The first is titled "The Definition of Crime, Its Elements and Its Classification," and has five chapters (the definition of crime, the material element of the crime, the mental element, the legal element, the classification of crimes). The second part is titled "The Commission of the Crime," and has two chapters, the first on the theory of attempt and the second on the impossible crime. The third part is titled "Plurality of Offenders and Plurality of Offenses," in three chapters (spontaneous offenses and criminal conspiracies, criminal complicity, concurrence of offenses). The fourth part is titled "Criminal Responsibility," in two sections: the first on justifications, in three chapters (the exercise of a right, the performance of a duty, permission of the law), and the second on impediments to punishment, in three chapters (force majeure, insanity, juvenile delinquency).[1]

The second book ("Punishment") has two parts. The first is titled "The System of Punishment," and has five chapters (the philosophy of punishment, the characteristics of punishment, the classification of penalties, studies of current penalties, precautionary measures); the second is titled "Factors Affecting Punishment," and has four chapters (grounds for exemption, mitigation and aggravation; grounds for suspension; grounds that bar enforcement; grounds that extinguish the penalty).

The third book, titled "International Criminal Relations," has three chapters (international criminal jurisdiction, the effect of foreign criminal law and foreign judgments in Syria, extradition).

In the introduction to his book, the author says: "I preferred to give the work the name that suits its form and subject, 'A Detailed Commentary on the Penal Code,' and I was also careful to keep pace with the trend that has spread among the states of the Arab League of calling their criminal laws penal codes.

I took care to study the subjects of crime and punishment at length, so as to meet the expectations of the legal practitioner, and I supported them with rulings I chose from the judgments of our courts and from comparative Arab and foreign case law. I gave ample room to foreign legal doctrine, so that we may keep up with the development of criminal thought at the international level.

From the start of my teaching at the Syrian University I held myself to a firm rule: knowledge is the common property of all mankind, and truth stands higher than feelings. So I have never shut the door of reason against it merely because it is not of our making, especially as we need to develop our minds and our sciences so that we can march with dignity in the advancing procession of humanity.

I ask God that this effort may help build the edifice of criminal law on sound, modern, logical foundations, and help men of the law to uphold right on firm ground."

6. Political Crime in Comparative Legislation: The Second Edition, Revised and Enlarged, Published in 2001

In the introduction the author notes that the first edition of this book appeared in 1963 from Dar al-Ma'arif in Lebanon. After it appeared, a cold war broke out between the two rival camps, the capitalist and the communist, and each camp tried to draw as many states as it could to its side. Then the Soviet Union collapsed in 1989 and broke apart, and a number of states became independent of it, six of them Islamic states. These developments left deep marks on the concept of political crime.

The author explains the aim that led him to publish his study again: "My sincere wish for this study is that it be a useful contribution toward filling what I believe is a large gap in the Arabic legal library, because Arab legal scholars, as far as I know, have not studied this subject at any length, important as it is in both law and politics."

The book has four parts. The first is titled "Political Crime in History" and has three chapters (ancient times, the Middle Ages, modern times). The second is titled "The Formation of the Theory of Political Crime," and has five chapters (the movement in legal doctrine; the legislative movement; the influence of the liberal trend on the European states: Italy, Germany, Russia, England; political asylum: the development of the concept, asylum abroad, the justification of the right of asylum; the positivist school and political crime).

The third part is titled "The Backlash against Political Crime," and has four chapters (the punishment of political crime in the Soviet Union, Fascist Italy, National Socialist Germany, the backlash in the democratic countries). The fourth part, titled "Political Crime in Comparative Legislation," also has four chapters (the definition of political crime, crimes that have lost their political character, the trial of political crimes, the contemporary political criminal).

The author closes his work with these words: "In our age, when the means of political crime have become extremely dangerous, such as deadly weapons, satellite channels and mass-circulation newspapers, the best way to strangle political crime in its cradle is democratic government, power that changes hands through free elections, a justice that gives every citizen a share of his country's wealth sufficient to his needs, and finally his enjoyment of freedom of speech and of writing, and his sense of equality, with no discrimination among citizens.

What we know, finally, is that the Arabs are inclined to gather themselves into a single nation, at a time when there is no longer any place for individuals and small groups.

Before us today great economic and political blocs are rising, and it is not unlikely that young people will turn to violent means, such as revolutions, in every Arab country to achieve their unity. I except none of these countries, save those that wealth has spoiled and corruption in its many forms has disfigured."

7. Al-Wasit: A Commentary on Kuwaiti Penal Law: Kuwait University Publications, 3rd Edition, 1987

The book runs to 430 pages in two volumes, the first comprising seven parts and the second five. It has an introduction in two chapters: the first defines criminal law, and the second deals with the development of criminal law (the primitive stage, the religious stage, the political stage, and the philosophical stage: the classical school, the neoclassical school, the positivist school).

The first part of the first volume examines the definition of crime and its elements, setting out in detail the material element, the legal element and the mental element.

The second part, titled "The Classification of Crimes," has five chapters, in which the author deals with the classification adopted by the penal code, crimes of commission and crimes of omission, instantaneous crimes, continuing crimes, ordinary crimes, political crimes, flagrant crimes and non-flagrant crimes.

The third part is titled "Attempt" and has four chapters. In the first he explains the stages of the crime (contemplation, preparation, execution); in the second he examines voluntary withdrawal; in the third, the punishment of attempt; and in the fourth, the impossible crime.

In the fourth part the author deals with participation in crime, in three chapters: the first is confined to principal offenders, the second to accomplices (acts of complicity before and after the offense), and the third to the punishment of participation in crime.

In the fifth part he deals with plurality of offenses, in two chapters: the first is devoted to the material plurality of offenses (several independent offenses, and connected offenses), while the second is confined to the formal plurality of offenses.

The sixth part of this volume examines, in three chapters, the grounds of justification: the first chapter deals with legitimate self-defense (the act of aggression and the act of defense), the second with the exercise of authority and lawful orders, and the third with the consent of the victim.

The seventh part of this volume is titled "Impediments to Responsibility," and the author deals with them in four chapters. In the first he examines insanity, its definition and its consequences, conditions close to insanity, and intoxication and drugs. In the second chapter he examines necessity, in the third duress in both its physical and moral forms, and in the fourth juvenile delinquency.

The second volume of the book opens with a preface in which the author discusses punishment, preventive measures, the aims of punishment, and the place of such measures in legislation.

This volume has five parts. In the first part the author deals with the characteristics of punishment and current penalties, in two chapters: the first covers the characteristics of punishment (the legality of penalties, their personal nature, equality), and the second covers current penalties and their classification (principal penalties, namely death, imprisonment and fines; accessory penalties and supplementary penalties: deprivation of the right to practice a liberal profession, closure of public establishments, confiscation, deportation of foreigners, an undertaking of good conduct, and police supervision. A section at the end of the chapter deals with the classification of penalties).

In the second part the author deals with grounds for mitigation and grounds for aggravation, in two chapters: in the first he explains grounds for mitigation, exempting and mitigating excuses, and judicial mitigating circumstances, and in the second he explains grounds for aggravation.

In the third part he deals with grounds for suspending the execution of penalties, in three chapters: the first is confined to the suspended sentence, its conditions and effects; the second to probation, or the withholding of judgment; and the third to parole.

The fourth part, titled "Grounds for the Extinction of Penalties," has three chapters, examining in the first the death of the convicted person, in the second prescription, and in the third the special pardon.

The fifth part of this volume is titled "Grounds for Annulment" and has two chapters: in the first he deals with general amnesty, and in the second with judicial and legal rehabilitation.

The author holds that crime has spread and grown worse in recent years, especially in America, and that crime in Europe, regrettably, has begun to approach the American pattern. He then says: "Regrettably, the Arab countries too have not remained safe from this sweeping current. In my estimate the crime rate in them is rising markedly, but I am convinced that it is still appreciably lower than elsewhere."

What, one wonders, would he say if God had granted him a longer life and he could see what is happening in the Arab world today?

Endnotes:

[1] The Arabic word used here for delinquency, junah, means an inclination toward wrongdoing.