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After the release of the Minister of Justice, following the decision of the High Court of Justice of ECOWAS, the Associate Professor of Law Faculties, lecturer at the Faculty of Juridical and Political Sciences of Cheikh Anta University Diop of Dakar looked at the words of Ismaïla Madior Fall.
Thus, in a succession "declaration of the minister – his point of view", the intellectual corrects on five points the copy made by professor emeritus. First, when the Minister of Justice says, "Those who are familiar with his case law are surprised or perplexed. In the line of its jurisprudence, the Court has always refused to pronounce on the internal judicial procedures or the interpretation of a decision of national jurisdictions ", Sheikh Abdou Wahab Ndiaye answers:" Okay. But as case law is not the law, reversals of jurisprudence are commonplace in law. Better, they reflect a willingness of the judge to adapt the law (by its interpretation) to the reality. "
On the arbitrary detention Minister Ismaïla Madior Fall said that" we respect this position which does not call into question the current detention ". Answer by Sheikh Abdou Wahab Ndiaye: "Sorry, professor. Why fictitiously split the detention? How can an arbitrary detention at the beginning that continues to end up regularizing the simple fact of the disappearance of a vice (lifting of parliamentary immunity)? If it's possible in other areas, it does not work that way in law. But this is not the most important. "
Then, where Ismaïla Madior Fall indicates that" in Senegal, the detention of the persons concerned by this affair results from a judicial inquiry and an instruction punctuated by numerous appeals before the intervention of a public trial where all the parties were able to express themselves freely concluded by a decision having the authority of the res judicata ", his / her / its counterpart is again sorry with these terms:» the regulation 05 of the UEMOA on the right to the presence of a lawyer not being respected, it can not be said that '' the parties were able to express themselves freely ''. And on the settlement, watch out. Being of direct application, he did not need a circular. Thus, to your question '' Where does the Court derive the alleged arbitrariness and breaches of fair trial? '', The violation of Article 5 of Regulation 05 must suffice for answer. "
And when the author of "Constitutional Evolution of Senegal" says that "the philosophy of the relationship between the ECOWAS Court of Justice and the national courts must be recalled: it is not a hierarchical relationship, but rather of a collaborative relationship necessary for the penetration of Community law into the legal orders of the Member States ", Pr Ndiaye recalls that the ECOWAS Treaty, the judgments of the Court are binding on States and judges.
And finally, where the Minister of Justice maintains that "if one is satisfied with the device that alone is available for the moment, it is necessary to distinguish the questions contained in the judgment. The lawyers for Khalifa Sall and others had generally made two types of requests to the Court: on the one hand, procedural issues of having the Court find the violation of a number of rights (arbitrary detention , assistance of a lawyer upon arrest, fair trial), secondly, have the Court say that it is repairing the harm suffered, order other measures, including the discontinuation of the proceedings and the release of Khalifa Sall and others, "he recalled that on the first aspect, the Court had ruled on procedural questions and asked the State to pay compensation of 35 million Fcfa to the applicants. Before closing the loop by: "Excellent. The right being first formed, the debate is closed ", reports Les Echos
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