Chapter 2, Part 1: His Law Books: Political Crime, Moroccan Criminal Procedure and Comparative Studies

In this chapter we try to survey the works Dr. Homad left behind him in the field of law, in autobiography, and in a number of the lectures he gave.

First: The Legal Field

He wrote a number of books in the field of law, among them "Political Crime," "A Concise Guide to Moroccan Criminal Procedure," "Advanced Studies in Comparative Criminal Jurisprudence," "Principles of Criminal Procedure," "A Detailed Commentary on the Penal Code: The General Part," "Political Crime in Comparative Legislation," and "Al-Wasit: A Commentary on Kuwaiti Penal Law." What follows describes the contents of each of these books.

1. Political Crime: Published by Dar al-Ma'arif, Lebanon, 1963

The book runs to 285 pages and is divided into four parts. The first, on political crime in history, has three chapters, covering historical times, the Middle Ages and modern times. The second part, titled "The Formation of the Theory of Political Crime and the Mitigation of Punishment," has four chapters: the first deals with the movement in legal doctrine ("the book of François Guizot"), the second with the legislative movement (the July Monarchy), the third with the punishment of political crime in the nineteenth century, in three sections (Italy, Germany, Russia), and the fourth with political asylum.

The third part is titled "The Breakdown of the System of Leniency" and has two chapters. The first, titled "A Period of Perplexity and Hesitation," falls into three sections (legislative reforms within the system of leniency, the positivist school and political crime, attacks on the liberal order); the second, titled "The Reaction against Political Crime," has four sections: Soviet Russia, Fascist Italy, Nazi Germany, and the democratic countries.

The fourth part is titled "Political Crime in Current Legislation" and has five chapters. They deal with the definition of political crime, terrorism and war criminals, and with the trial of political crime, in two sections, the first on departures from the general rules of criminal responsibility and the second on the trial of political offenses. The last chapter of this part is titled "The Political Criminal."

The book carries forewords by two of his professors at the University of Paris, Louis Hugueney and Henri Donnedieu de Vabres. In the conclusion of his book, the author, Dr. Homad, writes: "If the last word of any book expresses what is on its author's mind, then on the subject of political crime that word can be neither easy nor final. The reason is that the logic of this kind of crime raises complex problems closely bound up with the political and social conditions of the country in which it is committed. The more a country is in general ferment and violent upheaval, the more attitudes toward political crime vary, in harshness and severity or in sympathy and mercy, according to the personality of the offender or the character of the general climate in which he lives, and above all the kind of rulers who hold command there, and whether or not public opinion responds to them."

He goes on: "This may apply to the reality of the Arab countries more closely, and in a more complicated way, than anywhere else, for we live in a homeland pulled in different directions by strong, stubborn currents. Our generation was raised on the philosophy of Arab unity. It took it in with its mother's milk, grew up in the shade of its lofty tree, and savored its melodies, which it heard morning and evening. Then it settled in its thinking as a firm creed, open to neither discussion nor dispute, until it became a second religion to it, a principle that overrode every other.

Yet when it looks around, it finds this unity only on paper and in wishes. In the real world it meets every kind of resistance to establishing it, and a desperate struggle to keep the present borders as strong and impregnable as borders can be. All this at a time when every Arab leader says that these borders were drawn by the foreign colonizer, and on this the right and the left, the independent and the aligned, and everyone in between, are agreed...

For the record, we say: the union of Syria and Egypt in 1958 took the colonial powers by surprise and stunned them. They could not prevent it from coming into being, but they kept plotting against it, together with its enemies at home, until they managed to destroy it on 28 September 1961, exploiting certain mistakes that could only be expected in an event of such magnitude."

In the introduction to his book, the author says: "My particular 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."

2. A Concise Guide to Moroccan Criminal Procedure: Published by Maktabat al-Toumi, Rabat, 1968

The book runs to 390 pages and has eight parts. At its opening the author sets out to define the science of criminal procedure as the science concerned with organizing the criminal authorities and courts, defining the jurisdiction of each, and laying down the procedures to be followed before them. This science shows the paths that the bodies representing the interests of society are entitled to take, and the paths barred to them, so that their conduct leaves no room for improvisation or for violating the rights of individuals. Its subject, then, is the search for the crime, the arrest and examination of the offender, and his trial by the judges lawfully appointed for that purpose.

He explains that the task of the science of criminal procedure is to reconcile two opposing interests: the interest of society, which is intent on punishing every offender who has committed a punishable wrong, because in this way it achieves the aim of justice in punishment and deters the offender and others from daring to violate the laws of the state; and the interest of the individual, who hopes to be given the means to prove his innocence if he is innocent.

Criminal procedure must have three qualities:

1. Simplicity of wording and of rules

2. Speed, which is essential

3. Fairness

The first part of the book is titled "The Public Action" and has five chapters, in which the author deals with the judicial police, its officers and their work; the public prosecution, its organization and characteristics; the institution of the public action; the bars to instituting the public action; and the parties to the public action.

The second part is titled "The Civil Action" and has three chapters, in which the author deals with the purpose of the civil action (court costs, restitution, publication of the judgment, damages); the parties to the civil action (the party claiming damages and the party from whom damages are claimed); and the courts competent to hear the civil action (bringing it before the civil courts, bringing it before the criminal courts, and the choice between the two).

The third part is titled "Criminal Jurisdiction," and has three chapters: international jurisdiction; national jurisdiction (personal, subject-matter, territorial); and the extension of jurisdiction (cases of connexity, cases of joinder, offenses committed during court hearings).

The fourth part is titled "The Theory of Evidence in Criminal Cases" and has five chapters, in which the author deals with confession (how confessions are obtained, and their value as evidence), testimony, presumptions, documentary evidence, and expert evidence.

The fifth part, titled "The Preparatory Investigation," has eight chapters: the first deals with how the examining magistrate takes charge of the public action; the second with the course of the investigation (hearing witnesses, questioning the accused, letters rogatory); the third with judicial orders; the fourth with pretrial detention; the fifth with the judicial orders that close the investigation; the sixth with appeals against the examining magistrate's orders; the seventh with the indictment chamber; and the eighth with the nullity of investigative procedures.

The sixth part, titled "The Final Investigation," has three chapters: the first on the features of the final investigation, the second on how the court takes charge of the public action, and the third on the conduct of the trial.

The seventh part, titled "Means of Challenging Judgments," has four chapters: the first on opposition, the second on appeal, the third on appeal in cassation (the judgments open to it, its formal conditions, its effects, the grounds for cassation, the examination of cassation petitions and the rulings on them, and cassation in the interest of the law), and the fourth on review.

The eighth part is titled "Res Judicata" and has three chapters: the first on the effect of res judicata in a criminal judgment on another criminal judgment (decisions of the investigating courts and decisions of the trial courts); the second on the effect of res judicata in a criminal judgment on a civil judgment; and the third on the effect of res judicata in civil matters on criminal matters.

The author points out in his book that the code of civil procedure counts as the general law in relation to criminal procedure, and the view agreed among jurists generally is that where the code of criminal procedure regulates a matter but leaves that regulation incomplete or unclear, the court must turn to civil procedure to fill the gaps in criminal procedure.

In the introduction to his book, the author says: "After teaching criminal procedure at the Faculty of Law of Mohammed V University in Rabat for several consecutive years, I decided to write a concise book on the subject, within reach of law students and legal practitioners, as a reference in a sensitive area of law that demands great precision. I set myself the aim of illustrating legal principles with practical examples, chosen from legal doctrine and case law wherever I found them, because fundamental theories become fully clear only when well-settled and bold rulings reveal their scope and purpose. This work will not be a detailed one, because I wanted it to be easy for students in particular to take in, and to prepare them well for careers on the bench and at the bar. I also took care to cover the main topics on which this science, which is a practical art as well, is built."

3. Advanced Studies in Comparative Criminal Jurisprudence: Al-Matba'a al-Jadida, Damascus, 1987, 2nd Edition

The book runs to 832 pages and has three parts. The first is titled "The Phenomenon of Crime and Its Control," and has five chapters: the first on the growth of crime in contemporary societies; the second on social defense; the third on international cooperation against crime (crimes committed on an international scale, Arab regional agreements, international action, the work of the United Nations, the four international associations); the fourth on the death penalty, between retention and abolition (the arguments of the retentionists, the arguments of the abolitionists, and the position of legislation on it); and the fifth on the crisis of criminal justice.

The second part of the book, titled "Criminal Responsibility," has seven chapters. The first deals with the development of the concept of criminal responsibility (the classical school, the neoclassical school, the positivist school); the second with the theory of causation in criminal jurisprudence; the third with liability for the acts of others; the fourth with criminal medical liability; the fifth with professional secrecy; the sixth with liability for mercy killing; and the seventh and last chapter of this part with the errors of the justice system.

The third part, titled "The Application of Criminal Law," has five chapters: the first on the rules for interpreting criminal laws; the second on the criminal courts' review of the validity of legal texts; the third on grounds raised by the Court of Cassation of its own motion; the fourth on exceptional criminal courts; and the fifth and last chapter of this part on emergency legislation.

Scholars of criminal law have praised this book. They have pointed out that the studies it contains have enriched the Arabic library and filled a gap that sorely needed filling, since they are set out at length, by a scientific method worth following, with depth and richness. It is regarded as a reference whose like is rarely found in Arabic, its studies being unique in their subject in the Arabic language: remarkable studies, fully deserving of the praise bestowed on them.

In the introduction to his book, the author says: "It is a demanding task that I took upon myself, but what speaks for me in it is that, having spent thirty-seven years teaching the criminal sciences in three Arab universities (Damascus, Rabat, Kuwait), I feel I am doing a national duty in presenting these studies. May they spur scholars of criminal jurisprudence to carry them further along the path of good, in defense of the sanctity of right and law at a time when both face their harshest and fiercest test and are dragged through the mire of contempt and humiliation, and in the fight against crime through better means of combating it."

He goes on: "It will always remain my view that safeguarding human dignity is the most sacred duty that falls on the lawmaker and the man of government, and that no homeland can have dignity unless the dignity of every individual in it is protected. Criminal law is the mirror of a people's level of civilization, because through the penalties it imposes it embodies the values and concepts that society respects and defends. The task of judicial punishment is to keep vigil, as the worshipper keeps vigil in his prayer niche, over the triumph of right and the defeat of falsehood, without any distinction among those who hold rights, so that every person feels protected by honorable guardians who, for God and for the truth, fear no one's reproach."