The existence of the modern country and its control over the judiciary arena resulted in the existence of many principles to ensure that the authorities will not take over the rights of the individuals and to ensure the legitimacy and justice. One of these principles is the principle of the legitimacy of the penalties and crimes i.e. there is no crime or penalty without a text which defines the doing which is considered a crime in the eye of the law and which defines the prescribed penalties on the wrongdoer of that doing. All the constitutions were interested to mention that principle.
Meaning that the law will be the source of the illegal capacity of the doing and it includes of Penal Code and its supplementary laws and the special penal laws in addition to the prescribed penalty of this doing.
The wisdom of this principle is that the doings which constitute a crime shall be known to everyone and shall be set out in the law so as the punishment may not be applied on any doing whatsoever as long as there is no text that states that such doing constitutes a crime and there is no text that states the prescribed penalties for each doing so as the judge may not consider a specific doing as a crime even if he is convinced that such doing contradicts the justice, morals or religion.
Moreover, the judge may only impose the penalty which is set out in the law, and all of this shall be done taking into consideration the mitigating and aggravating circumstances which are set out in the law as well.
What has been shown requires that the law shall be known to everyone so they can be prompted to comply with it and to avoid the doings which are considered a crime so that it can be applied on them. Therefore, all the laws shall be spread once they are issued in the official newspaper and the effective date of the law shall be mentioned in it.
If the law has issued and has been spread and its effective date has come into effect, then it shall be applied on all people who are subject to its provisions without exception even if they do not know about it or did not take a look at its provisions and texts. And, it is unaccepted from anyone to claim that he do not know about the law or do not understand its provisions or claim that he understood the law in such a way which is different from the correct understanding of the law, and this is what so-called “Unacceptability of Apologizing for the ignorance of law”.
This principle is valid for all people and no one is excused for the ignorance of law whatever his surrounding circumstances, as any person is not permitted to argue that he does not know the provisions of the law because of his sickness or absence by being outside the country during the issuance of the law or the complete formation of the legal rule. Also, he is not permitted to argue that he does not know due to his illiteracy or something, as the legal awareness is a supposed presumption that does not accept the other way around.
Some people may think that this principle constitutes an aggression or injustice for applying the law without taking this excuse (ignorance of law) into consideration. But in fact and because the justice considerations are in line and in balance with the considerations of the general system regarding applying the principle of the “Unacceptability of apologizing for the ignorance of law”, because if people will be excused for their ignorance of law, the chaos will prevail everywhere because everyone will be excused for their ignorance of the law and will claim that they do not know about it, therefore it is applied on all and that does not contradict with the justice principle by any way.
Also, this principle achieves the equality among all people as the law is applied on either who knows it or who does not. That because, if some people will be permitted to excuse the ignorance of law, this will constitute a disruption of the equality principle, for applying the law on a specific category and not the other. Also, the justice behooves not to reward who is unaware of the legal rule and to impose a fine on who knows it.
Furthermore, applying this principle emphasizes the obligation element that exists in the legal rule which is originated from the rule itself and no other thing as a necessity to confirm the awareness of it or otherwise.
But, is this principle applied on the law in the general meaning i.e. on all the legal rules or is restricted only on the legislation and nothing else, is it applied on all the branches of law or on a specific branch of the law, is misunderstanding the applicable law an accepted excuse or not, are there any exceptions on this principle and what are these exceptions (if any)?
As for the scope of applying this principle, there is no dispute that the principle is applied on all the legal rules whatever the source of the legal rules whether it is legislation, religion, tradition or the principles of Islamic sharia, also the principle is applied regarding all the rules whether these rules are imperative, supplementary or explanatory. But the dispute arose about applying it regarding the supplementary rules, because some people thought that it is permissible to apologize for the ignorance of these rules. What prompted them to say this opinion is that they are mixing between the idea of “Apologizing for the ignorance of law” in this regard and the idea of the possibility of annulling the contracts as a result of what occurs to one of the contract’s party when misunderstanding the law. Therefore, the supporters of this view thought that doing so is a departure from the principle (prohibiting the apologizing for the ignorance of law) and this apology is accepted in case of misunderstanding the law, but we should differentiate between the idea of apologizing for the ignorance of law and the idea of misunderstanding the law in this regard.
As the idea of misunderstanding the law is different than the idea of the ignorance of the judgment of the law because to undertake it, we should exclude the judgment of the law and put it aside. So if a person claims that he does not know the judgment of the law then the result that he would like to reach is that he wants to dispose the application of the judgment of the law on himself. And it is the contrary of this in case of misunderstanding the law because if the contractor misunderstood and adhered to this misunderstanding, this does not mean that he does not adhere to the legal rule in which the misunderstanding occurred and subsequently he does not want it to be applied on himself. On the contrary, he adheres to apply the rule in which the mistake occurred; also the rule will remain valid for him despite his ignorance of it. Such as in case when a heir sold his share in the estate thinking that is inheriting the quarter although the law decides that his share is the half, in this case it is considered that the heir misunderstood the law which allows his to cancel the sale. Therefore, if the seller adheres to cancel the sale based on his misunderstanding of the law, then he adheres to apply the legal rule which he didn’t know about and the exclusion of its judgment on him will not be required just as the case regarding the principle of apologizing for the ignorance of law.
As for the scope of applying the principle, is it applied on all the branches of the law or on a specific branch of it which is the penal law?
The judiciary has settled that the principle is applied on the punitive laws which it is not permissible to excuse the ignorance of them, but if the excuse of the ignorance of the law is related with a non-punitive law, the excuse will be accepted and the penalty may be withheld if a crime occurred as a result of this.
Ignorance of the other non-punitive laws such as the civil law is considered as an ignorance of the reality which leads to the denial of the criminal intent and cancellation of the criminal responsibility of the doer who thought that he was doing a legal doing and this means that the application of the principle of unacceptability of apologizing for the ignorance of law does not extend to the ignorance of the non-criminal legislations, as the ignorance of these latter legislations can be an excuse which inhibits the penalty due to the absence of his criminal intent. Some people thought that this does not represent a departure from the principle of unacceptability of apologizing for the ignorance of law, because exempting any person from the criminal responsibility is not based upon the ignorance of the civil rule but rather it is a result from the absence of his criminal intent. As the criminal intent will not be fulfilled in this case without knowing the judgment of a non-criminal legal rule.
As long as the accused does not know the judgment of this, then he has no criminal intent which it is one of the pillars of crime emergence therefore, the criminal responsibility withdrawn from him accordingly.
The Supreme Federal Court to apply this has finally laid a legal principal in which it emphasized the absence of the criminal intent for the ignorance of legal non-punitive rule, and acquitted defendants in a forgery crime in an official instrument illustrating that their ignorance was not because they did not know on of the judgments of the penal code which the ignorance of it does not considered an excuse, but rather an ignorance of a decided rule in another law which is the law of Personal Status Law regarding the divorce and its occurrence triggers.
The details of the case go back that a divorce occurred between a couple which was confirmed before the court with three divorces as a irrevocable divorce, then he retrieved her after they enquired about the possibility of retrieving. According to this he extracted an entry visa for the second defendant i.e. his ex-wife to enter the country upon a request in which he confirmed that she is his wife unlike the truth, and then she entered the country and as such she stayed in it. So the general prosecution accused them for counterfeiting an official instrument, but the court jury saw that their doing was accompanied by the good intent because they thought that they are still a couple after the divorce has occurred and extracting an advisory opinion of permissibility of recovery, notably they do not know the judgment of the Sharia regarding the matter of divorce and the triggers which arise it. The judgment of acquittal was based on that the defendants was unaware whether they are divorced or not regarding the number of divorces and place and time in which they occurred. Their ignorance was not because they did not know a judgment of the penal law’s provisions, but rather an ignorance of a decided rule in another law which is the Personal Status Law by which the criminal intent is denied and the criminal intent is a legal element which must be available in the intentional crime and that what was not fulfilled regarding the defendants and the court acquitted them from what has been attached to them.
The judgment of Dubai cassation court has settled on applying this principle on the criminal law and its other supplementary penal laws as it resolved that ((whereas the article 42 of penal code stated that “ignorance of the judgments of this law is not considered an excuse” which means that the repulsion of the ignorance of the criminal law is unacceptable and its supplementary other penal laws as a pretext to justify committing the crime or to deny the criminal intent because it is supposed that all people, who exist on the territory of the country, know about the Criminal Law. The law No. 6 of 1973, which was amended with the Federal Law No. 13 of 1996 and 7 of 2007 regarding the entry and residency of the foreigners, was such as the supplementary penal laws of the Penal code as apologizing for the ignorance of its provisions is not taken into consideration thus mourning the appellant in this regard is not in place.))
Furthermore, it resolved that ((what the appellant aroused regarding the denial of his criminal intent claiming the ignorance of the incident subject of the incrimination and its misunderstanding is merely a wrong believe of the legality of the incident and misunderstanding of the law and it is in fact a repulsion of the apology of the ignorance of the law which is unacceptable due to it is decided that the ignorance of the law or misunderstanding of its texts does not deny the criminal intent considering that knowing the punitive law and understanding it properly is a presumptive with all the people and if that presumption is often different from the reality, it is a presumption dictated by the practical motives to protect the interest of the of the group. The judgment of this court used to consider that knowing the criminal law and its supplementary punitive laws is a presumption in all people, therefore the repulsion of ignorance or its misunderstanding is unacceptable as a pretext to deny the criminal intent.))
But are there exceptions on applying this law?
It is decided that they must spread the legislation to become obligatory by its provisions to the addressee. What we mean by spreading herein is the announcement of the existence of the legislation to be able to know about it, and then the legislation becomes valid after its issuance, but it will become obligatory only after spreading it in the certified means for this “the official newspaper”, however, it comes into effect from its publication i.e. from the incident which makes it possible to be known as there is an imperative correlation between the commitment of the law and the possibility of knowing about it. Hence, if it is confirmed that it was not spread or that the newspaper did not reach somewhere, then the law will not applied and the excuse of ignorance will be accepted as in some circumstances if knowing about the law was impossible due to a force majeure such as a flood, war occurrence or otherwise, the law will not be obligatory for whom it was impossible to know about it.
The wisdom of acknowledging this exception is that when the newspaper reaches out, it gives the individuals the opportunity to know therefore it was normal to allow them to apologize for their ignorance of its provisions. According to this principle it is clear that the exception is applied only for the legal rules for which the legislation is the source. Also, this exception is tied with the circumstances which arouse it so if the circumstances vanished, the exception would vanish and the principle is applied.
Moreover, there are some laws which put temporary exceptions related to the time of issuance of the law and may relate to the foreigner who recently entered the country such as the Lebanese law which stated many exceptions on this principle. As after it stated the principle in the article 223 of Penal Code deciding that “No one can excuse of not knowing the penal sharia or interpret it mistakenly”, it stated that the following prohibit the punishment:
- Ignorance or misunderstanding in a civil or administrative Sharia upon which the imposition of the penalty is based.
- The ignorance of a new Sharia if the crime is committed within the three days following its spread.
- Foreigner’s ignorance who came to Lebanon three days maximum ago with a crime violates the statutory laws on which the legislations of his country or the legislations of the country in which he resides, do not punish.
Also, Iraqi law states the acceptability of the excuse of the foreigner who came to the country for seven days as it is stated in the article 37/2 of the Iraqi Penal Code that (The court may exempt the foreigner from the penalty who committed a crime within maximum seven days beginning from the date of his coming to Iraq if his ignorance of the law was confirmed and the law of his domicile does not punish for committing this crime).
According to the text it is stipulated to accept this excuse that the foreigner’s stay from the entry date does not reach seven days and the doing which he committed has no penalty according to the Penal Code of his country.
From what has been shown it turns out to us that the principle of the unacceptability of apologizing for the ignorance of law is decided for the favor of justice and the favor of law and not as some people might think, also it is a supposed presumption for all people and does not accept confirming the other way around by any way and the misunderstanding in another law other than the Penal Law or its supplementary laws may be accepted and may exempt the culprit from the penalty for the denial of his criminal intent and not because the law is not applicable on him.