Plenary: Case Study: Governmental Accountability

  Anna D. Wuerth, University of Richmond, Richmond, Virginia

Mohammed H. Fadel, Sullivan & Cromwell, New York, New York

 

I.          Islamic Law and Holding Governmental Agents Accountable for Illegality  

A.     Revelatory foundation of the Islamic law of torts

 

B.     Muslim jurists did not distinguish between the intentional torts of private     

individuals and those of government agents.

 

1.Intentional torts and causation

 

(a) Intentional injury and Excuse

 

(i) Each person in the chain of command is liable, even if cause in fact of the injury is command of a superior;

(ii)        Only the actual person inflicting the injury is legally liable if he willingly carries out the injury;

(iii)       Only the actual person committing the injury is liable, if he is under a duty to disobey the unlawful command;

(iv)       Only the person commanding the injury is liable, if he threatened the actual person inflicting the injury with death if he did not carry out his command; and

(v)        Neither the actual person inflicting the injury nor the person giving the command is subject to retaliation, but the person giving the unlawful command is monetarily liable.

2. Negligent torts

 

(a) Government monetarily liable, not agent, if action undertaken in good faith; and,

(b) Judges are not liable for honest mistakes.

 

I. Holding Governmental Agents Accountable in Egypt and Yemen

 

1. Convention Against Torture

 

2. Constitutional provisions in Egypt

 

(a) Art. 42: prohibits torture of detainees and establishes an exclusionary rule

 

(b) Art. 57: declares that no statute of limitations applies to claims of torture

3. Constitutional Provisions in Yemen  

(a) Art. 47: prohibits torture and its use to obtain a confession; individual victims have right to compensation; establishes no statute of limitations for claims of torture

4. Penal provisions in Egyptian penal code

 

(a)  Art. 126

(i) Definition of torture: use of force with purpose of obtaining a confession;

(ii) If victim dies, perpetrator liable for premeditated murder

(iii) Art. 126 does not apply if torture applied to person other than a suspect or for a purpose other than to extract a confession

(b) Other relevant provisions

(i) Art. 129 (prohibition against cruelty)

(ii) Art. 236 (deadly assault)

(iii) Art. 280 (prohibition against illegal detention)

(iv) Art. 282 (illegal detention combined with forgery and infliction of bodily harm)

5.      Yemeni penal provisions

 

(i) Art. 166 (prohibition of using torture in the course of exercising public authority)

(ii) Art. 168 (prohibition against cruelty)

(iii) Art. 234 (prohibition against premeditated murder, with provision for deadly assault)

II. Remedial Mechanisms

A.  Prosecutorial discretion

1. complaints are filed with public prosecutor's office in both Egypt and Yemen

 

(a) state monopoly of forensic evidence in Egypt

(b) forensic evidence in Yemen can be provided by state or other physicians

B. Standing of victim or victim's next of kin

 

(a) Egyptian litigants have no private standing to pursue torture case

(b) Yemeni prosecutor has no discretion to decline a charge of penalty could entail capital punishment (Yemeni Code of Criminal Procedure, Art. 26)

( c) Victim and kin are parties to case

 

Quick Links

Workshop Materials

General Bibliography of Islamic Law

Glossary of Islamic Legal Terms

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