Commercial Litigation & Arbitration in Yemen [Archives:1998/21/Law & Diplomacy]
By: Hussain Al-Hubaishi*
1- The Pre 1962 Period:
(a) The North : Dual system Sharia with no Codification and Tribal Customs.
In that era the level of Sharia applicability was high. Advance studies rotates around Sharia and Sharia was regarded as a mean of state craft. Consequently Sharia courts had the exclusive jurisdiction of all disputes concerning all walks of life. “At that time the era was characterized by strongly centralized rule over-shadowed by the personality of the Imam: The Imam himself would review and go over approximately three hundred cases a day. In judicial matters the Civil law was administered by Al-Amil, the district commissioner, and the Sharia was administered by Al-Hakim, the district judge and then by the court of appeal, but both channels would lead to the Imam and his Advisory board (Al-Hiah Alshariah), if the parties chose to.
It may be argued as Messick did that Sharia uncodified is characterized by “Flexibility and interpret ability of its principles and open structure of its texts.” But the price for not codifying its principles was high. There were divergent legal opinions on the same issue, uncertainty of the legal position of the parties to the dispute and an indefinite recourse to appeal.
As far as procedures are concerned, jurisdiction of the courts was unknown specifically and a party to a case would take the matter of dispute to any court anywhere in Yemen. Also virtually no system of recording or achievements were kept in order.
On the other hand, tribes apply their own rules of customs (Ahkam Al-Aslaf), where it suits them rather than abide by the state legal structure, rules and law and order.
There were certain norms of customs outlawed by official Sharia since the Imam realized that for the tribes to have their own law, it meant minimal government and in some cases the sovereignty was at stake.
(b) The South: Triple Judicial System.
During the British rule the south of Yemen judiciary exercised a triple system in the colony of Aden. The judiciary consisted of civil and criminal courts, dealing with the commercial, criminal and British admiralty matters. Sharia courts were dealing with personal status matters but other religious norms apply to non-Muslims. Within tribunal communities local disputes were arbitrated by tribal or religious personalities who heard cases according to the prevailing rules of customs and sometimes Sharia.
The colonial courts included a supreme court and a number of subordinate magistrate courts. The high court of judicature in Bombay, and later in East Africa, acted as an appeal court for Aden’s supreme court and from the latter to the judicial committee of the Privy council in London. Those courts apply various laws of British India, common law Equity. Sharia courts are headed by the Sharia, (Qadhi) judge in the district and the tribal customs tribunal is presided by the local sultan, sheikh or Qadhi.
2. The Period Until 1990
(a) The North: Attempts to Update the Judiciary.
After 1962, the upheaval of the social order led to urbanization, new socio-economic class and a degree of social mobility, those factors participated in the transformation of the individual interpretation of commentary jurisprudence to mandate recording of Administrative acts and laws and later, onto the incorporation within the country’s legal system of additional laws, decrees and regulations.
The compromise of the system struck in responding to the force of modernization, on the one hand, and avoiding a showdown with the traditionalists was exemplified by the codification of the principals of Sharia. To be fair, we can trace the beginning of this legal movement, apart from the Ottoman’s attempt (Al-Majallah Al-Sharia), to the few non-Zaidi principles of Sharia (Al-Khiyarat), incorporated into the legal system of Yemen at the time of Imams Yahia and Ahmed.
The other attempt was made by the ministry of justice and the court of cassation when they refrained from applying the dictates or principles of one sect of Sharia since 1971.
By 1976 it was realized that total codification of the Sharia laws was fundamental to the creation of a modern state. Since then the interpretive dynamics of Sharia were used to issue laws on personal status, commercial and judicial matters.
Since the constitution of 1970, the right of litigation and recourse to courts are guaranteed and regular courts follow a three tiered system composed of courts of first instance (primary courts), courts of appeal and the court of cassation (the high court). But not all was well as we will see in the following paragraphs.
(b) The South: Combining Two Legal Systems
After Independence, according to the constitution, the function of the judiciary is exercised through the courts which endeavor to promote respect for the constitution and the laws… Justice is administered by the Supreme court, Provisional courts and Divisional courts.
Sources of law are the constitution and then legislations at different levels by various bodies. Islamic law in practice remains a source of law, but evidence of the attempt to reach accommodation with a revolutionary version of Islamic beliefs is manifested in the constitution which stipulates that Islam is guaranteed protection so far as it is in consonant with other constitutional principles (sections 34 & 36).
The other side of the coin exhibits symptoms of another legal system manifested by certain provisions in the constitution. It is easily deducted that there is no separation of powers (Legislative, Judiciary and Executive), the “function of the judiciary… is to promote respect… and loyalty to the Revolution and Homeland.” There is only “one state power, vested in the sovereignty of the working people, and the judiciary is an organ of the state power”. Lastly, according to the constitution, the Presidium has the privilege of interpreting the laws (section 97 – item 4).
3. 1990-1997: The Revision
Unifying the Two Systems and the Quest for Reforms.
Both the draft constitution for unity completed in 1982 and the same constitution as amended provisionally in 1990 stipulated the unification of all laws of the North and South during the provisional period and consequently many unified laws were enacted. Nevertheless no detailed plan was envisaged and in one month, forty eight laws were passed as presidential decrees before they were submitted to the Council of Representatives. This expediency accompanied by the spirit of compromise to please parties from the Left and Right resulted in certain laws being in conflict with each other or inconsistent with the government pursuance of the course of Reform.
In the sphere of the Judiciary, the outcome was not availing, the duality of each legal system in the North and South surfaced and the temporary division of power according to the constitution gave room for political maneuver, in addition to the emerging of the Islam oriented party, Al-Islah, those elements combined together, distorted more efforts to unify and reform the Judiciary. There are other factors which participated in that want of success: they’re mainly the worsening of the financial and political situation and above all the reluctance to pursue judiciary reforms and their deferment. These last issues shall be tackled in the following chapter.
* Mr. Al-Hubaish is one of the architects of the legal system of Yemen. He has served as Minister of State for Legal Affairs, Advisor to the President and Prime Minister for Legal Affairs, and many other senior positions.