Be Aware, else Beware
Part II of II
Pronounced political philosopher, Thomas Hobbes once stated that ignorance of the law was not a good excuse since everyone is bound to take notice of the laws so subjected. If ignorance of law is no excuse, then is every person supposed to graduate out of law schools? No, the acuity of the principle "ignorantia juris nonexcusat "lies in the fact that the acts which constitute a crime should be known to everyone alike and should be profoundly set out in the law. Therefore, if there is no text stating a prescribed penalty for a particular act, the judge cannot consider that act as a crime.
Let's discuss the adventurous journey of the unaware Mr. X: He was traveling from Delhi to Dubai with certain medicinal products that were permitted in India but illegal in Dubai. However, Mr. X was unaware of the legal implications of traveling with those medicines into the UAE. Would he be criminally liable for sneaking banned products into the country? Hopefully, the criminal consequences on Mr. X would be lucid by the end of this article. The judiciary has established that the principle of the unacceptability of apologizing for the ignorance of law is applicable only to the punitive laws due to the widespread chaos that would be created in the society if the courts would excuse ignorance of penal laws. Ignorance of non-punitive laws such as the civil law is in general an ignorance of reality. Hence, the criminal liability of the 'doer' would nullify due to the absence of men's rea or criminal intention. Some people have perceived that this notion has substantially departed from the principle of the unacceptability of apologizing for the ignorance of law since the idea fundamentally is based on the criminal intent of the parties and not the existence of non-punitive legislations. In this scenario, criminal intent cannot get determined without comprehending the judgment of a non-criminal legal rule. In this regard, the Supreme Federal Court of Abu Dhabi has laid down a legal principal in which it emphasized on the presence of criminal intent for the ignorance of a non-punitive rule. The court cited the principle and acquitted the defendants in a forgery case since their ignorance was not towards judgments of the penal code, but rather towards their personal law about divorce. The court had observed that a husband had divorced his wife with the triple talaq. However, the parties were unaware that this mode of divorce was irrevocable. Therefore, the husband had obtained a visa and subsequently brought her back to the country after confirming to the authorities that she was still his wife. Consecutively, the parties were made liable and accused of counterfeiting an official document due to their statement to the authorities regarding the validity of their marriage. However, the court held that the couple did not have any criminal intent in their actions as they were unaware of the principles of Sharia regarding the matter of divorce. The court further observed that the parties were unaware of the personal laws of the country and had not ignored the provisions of the penal code. Therefore, the court acquitted the parties since they lacked the criminal intent which is the necessary legal element that subsists in the commission of a crime.
However, what would be the legal implications on the parties if they had ignored a new law that was not effectively communicated to the public by the legislators? The lawmakers are obligated to announce and deliver the provisions and the ambit of all new legislations so that the public can consecutively be informed to alter their actions regarding the new legislation. Therefore, the application of the maxim ignorance of the law is no excuse would only be applicable after a new law has been informed to the public through a certified means of communication as an official newspaper due to the prevalence of a crucial link between the involvement of the statute and the likelihood of knowing about it. The validity of the excuse of ignorance of the law by the accused could be comprehended when a new legislation does not get communicated effectively or when the official newspaper does not get circulated to a particular place. This exception is relevant in circumstances where an accused was not informed about the implementation of a new law due to the occurrence of force majeure events such as floods, war and the like. Hence, the excuse of ignorance of the law would be valid when an individual gets restrained from attaining knowledge about the provisions of a new legislation due to the non-communication of the same by the legislators. The wisdom of acknowledging this exception lies in the fact that an individual should get the opportunity to attain knowledge about a new legislation before he bound by the same. The public is provided with the access to a new regulation when a newspaper elucidating the implementation of the same reaches out. Hence, the courts would not accept an apology for the public’s ignorance of legal provisions. In line with this principle, one thing is clear that the exception applies only to rules where key legislation is the source. Therefore, it could conclude that precedents (in common law countries) and decisions of regulatory authorities are not subject to this notion.
However, the US Supreme Court had considered ignorance of the law as a substantial excuse in the most fabled case of Lambert V California[i]. In this case, the appellant who got convicted of a felony in the California state. However, she was unaware that she had to register herself by the provisions of a Los Angeles city ordinance when she remains in the city for more than five (5) days. The ordinance had stipulated that she would be imposed with a fine of five hundred dollars and would be imprisoned for up to six months if she had continued her stay in the city for more than the prescribed limit. Subsequently, the state authorities convicted her with the failure to register by the ordinance. However, Lambert appealed her case and pleaded that she had no knowledge that she had to register herself and that convicting her would deprive her of due process under the Fourteenth Amendment to the US Constitution. Consecutively, the US Supreme Court held that the probability of knowledge of a statute was required to convict a person of a notice offense.
The penal law of some nations has provided for substantial exceptions to the principle of ignorance of the law. Moreover, some laws exert temporary exceptions related to the time of issuance of the law and may concern the foreigner who recently entered the country. The Lebanese Penal Code has stated the principle in the Article 223 and provided that no person can be excused under the pretext that he/she does not know the penal sharia or for that matter - interpreting it mistakenly. Further, it has also provided for the following exceptions to the principle:
- Lebanese Penal Ignorance in a civil Sharia whereupon the imposition and infliction of the penalty is applied.
- The ignorance of a new Sharia by any person in cases where the crime is committed within the three days following its spread.
- Foreigner’s ignorance who came to Lebanon and engaged a crime within a maximum of three days beginning from the date of his arrival and in which the applicable laws of his home country (where he resides or is a citizen of), do no punish.
Similarly, Iraqi law provides for the acceptability of the excuse of the foreigner who came to the country for seven days. Article 37(2) of the Penal Code of State of Iraq, for instance, has conferred the court with authority to exempt a foreigner from the penalty for a crime which he/she committed within seven (7) days from the date of his/her arrival in the country. The exemption applies as long as his ignorance of the law is confirmed and the law of his domicile does not provide for punishment for the same crime.
Therefore, the principle of the unacceptability of apologizing for the ignorance of the law can be seen to achieve the benefit of equality among mankind, as it is to be applied to everyone, with no distinction between who may know or not know of it. Justice behooves not to reward who is unaware of the legal rule and to impose a fine on who is aware of it. Hence, it can be comprehended that this legal principle is decided in the favor of the justice system as a whole as it stems from the supposed presumption of all people alike.
This concludes the two-part series on forgery law of UAE and the broader Middle East. STA’s team of expert criminal lawyers in Abu Dhabi, Dubai, and other offices will continue to deliver engaging and relevant legal information. Court Uncourt is also available on iTunes and Android Google Play. Thankfully, Apps cannot be forged at least as of now!
[i] 355 U.S. 225 (1957)
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