Courts With No Judicial Instruments [Archives:1998/24/Law & Diplomacy]
By Hussain Al-Hubaishi*
A. Every Judge’s Sharia
By the title above we mean every judge has his own interpretation of Sharia. That was the situation until 1978 and it still exists, where in certain fields of legislation the rules of law are blurred or not yet legislated.
In Islamic jurisprudence there are many jurists and commentators of different schools whose rich opinions differ markedly from one another, I knew of similar cases or of the same case which were judged in different manners according to the domicile of the court, whether it is Taiz, Sanaa or Sa’ada. In addition to that, there are “freelance” jurists who are prepared to annul or reverse any judgment based on Sharia by means of dexterity. From the time of the Kingdoms (Khalifats) of the Umayates, Sharia became a human embodiment depending on the jurists’ beliefs, thoughts and was sometimes used as a process literally leading to authority.
Hence, codification of Sharia was the compromising solution to be worked upon Sharia which was fundamental to the creation of a relatively modern state. Generally by codification, we mean the legal term usually employed to refer to the reduction of certain rules or principles of Sharia to a more or less certain organized and written forms through a comprehensive piece of legislation.
In Yemen since the issuance of law no.4 of 1975, codification continued unabated except for certain intervals because of political turmoil. Thus laws in the fields of civil, commercial or penal matters were enacted and composed in a manner which would be sufficiently clear not only to judges (qadhis) but also to lawyers, administrative officials and perhaps to citizens. It maybe interesting to quote the guiding principle for codification as stipulated in law 7 of 1975, which runs as follows:
The member (of the committee) shall make use of Al-Ijtihad (interpretation) of all schools that follow the soundest opinion depending on abstract and universal Islamic jurisprudence and the general principles which deals with new legal situations.”
In this respect, I am not saying that at this moment everybody is happy with the process of codification. Some qadhis, while not necessarily feeling constrained to pronounce matters of codified laws, are not unwilling to inform themselves of their provisions and to apply them when necessary. Other radical judges and lawyers are still pressing for well known certain progressive and simply drafted legal rules. There are other reasons for dissatisfaction, exemplified by the need to codify more rules and principles which have been codified in a vague manner obliging any student of law to refer to the old scripts of Islamic jurists and commentators. One more irritating subject to the young judges and lawyers is the constant reference of laws enacted by parliament to Sharia in general, by adding to many provisions of laws the term “according to the principles of Shaira.”
B. Laws With No Procedure.
The subject of procedure or adjective law has taken on special importance because the line of demarcation between substance and procedures in Yemen is difficult to fix.
Until 1976 there were few statuary laws in the North or even few regulations to cover procedure. But since 1976 and at the time of the British rule in Aden and after, many laws and regulations have been promulgated and revoked or amended.
Our concern is the present day or since Yemen Unity has been re-instated, whereupon we find many judicial instances with no strict application of rules of procedure, either in pre-trial proceeding or during pleading terms. We notice also that judges are greatly influenced by the inquisitorial character of litigation, whereby certain lawyers make use of adversary tactics and interlocutory injunctions to frustrate due process of law. Before that stage borders of competence and jurisdiction are obscure especially in matters of commerce.
Though judgments on lengthy scrolls are decreasing, most judgments and awards are issued without reasoning of facts and law. And the worst comes of hearings and pleas taking place in certain judges’ residencies without giving a chance to rejoinders or replications to be submitted; there are other cases whereupon the court of execution may look into the facts of the case and review the whole case anew.
On the other hand, those judges who abide by rules of procedure are foiled by lack of procedural instruments imperative for courts. There are no proper archive files, references, libraries, clerk authentication or notarization. Judges are not even provided with the law gazette regularly, the result of which is the delay in case hearings; and perhaps impediment of justice.
C. Judges With No Institutions & Other Frustrating Factors
Here is a general outline for the situation concerning the judges and their judicial institutions. In addition to the shortcomings suffered by judges in towns and cities of Yemen, judges in the countryside are deprived of means of communication; private or public, and of decent houses or lodgings. They lack qualified clerks and are short of even stationary materials. The court buildings are anything but adequate. In the countryside they are far worse to be described.
If we turn our attention to the judicial or semi-judicial institutions at the hierarchical top, they do not fair better. The “Judicial Inspection Board,” as its chairman said: “Is not given the necessary resources to do its job. It is not even given the full authority to inspect the undertakings of the supreme court. The inspectors have no means of travel or documentation of information and cases.” Yet one of the bad practices of the Inspection Board in the old days, is its inclination to act as a rebuttal organ and a body of appeal.
The supreme court (Court of Cassation) as a whole is supposed to be the highest judicial body of the land, but actually its chair-judge runs the show through interfering in lower court proceedings, transferring cases from one bench to another and accepting judicial review of cases almost unconditionally. The Minister of Justice or the ministry at certain times fair less in the process of intrusion and supervision of the judiciary by way of indication or directing execution of judgments. Even worse is the case where the Supreme Judicial Council is a part-time body granting rights and privileges to judges and administers their disciplines and dismissals. Yet most of the time the council or its acting-head act as a full-time administrative, executive and judicial body giving directives and instructions to judges and courts alike.
The consequential corruption of most of the judicial system is a logical conclusion to the above mentioned misbehavior or shortcomings. Administrative corruption manifested itself through judges’ abstinence from the Bench, prolonging hearings and sometimes included the parties to attend hearings taking place in the judge’s residence.
Monetary corruption is initiated by means of bribing down-graded clerks of the court and through them, directly buying off under-paid or greedy judges with incentives, inducement money and bribes. The outcome of this is the hue and cry against the judiciary and the irreverence or disrespect for judges.
In my opinion, I disagree with those reformers who blame the judges for such plight and think of reforming the judiciary at the top. Firstly, I believe that the reform should begin by re-educating, training and post qualifying most of the judges and guaranteeing their rights and privileges. As such, reform can begin from the bottom where most of the judges are found in rural and other urban areas.
D. Reluctant Judicial Reforms
We may attempt to classify those reforms intended for the judiciary in Yemen into three categories. Since 1974, in the north of Yemen, certain reformers tried the dogmatic approach; old is bad, new is good. To their belief old judges must be discharged and new graduates of universities must take their places and positions. In the south around that time, the left took over the reigns of government and tried to apply the same dogma.
From the eighties until today, reformers believing in the theoretical approach tried their hand. They believed then and still believe in the dilatory long-term planning for the whole judiciary and reforms taking place hierarchically. This approach exposed their aims to those with invested interests and those reformers never left square one when they were shaken off by the old guards. Nowadays they are having their second chance; we hope that they have learnt their lesson and wish them success.
The third category can be called the realistic approach. It started earlier in the mid-seventies and still has some supporters today among those who participated in the trial then. The reformers who follow this approach combined, to a certain extent, some of the norms of the first and second approaches.
On the first hand they believe in introducing a number of graduates of law and Sharia to the judiciary without getting rid or dismissing all the old thinking or the old age of the judges. These reformers on the other hand believe in planning but in a piece-meal manner, without exposing their long term plans of reforms. One of their means is establishing specialized courts in commerce, administration, finance and constitutional matters with specialized graduates of law in these fields. Without infringing on the theoretical unity of the judiciary to any degree, they contemplate. When the regular courts are affected by the examples of modern courts, then and only then the principle of juridical unitary will be held.
As a matter of fact there are few courts or benches left which are composed partially of university graduates but they are neither immune from the over-all picture of corruption or from the visible abuse of the system. The first and real escape from this unsatisfying situation took place in 1976 with the Commercial Courts.
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*Mr. Al-Hubaishi is one of the architects of the legal system of Yemen. He has served as Minister of State for Legal Affairs, adviser to the President, deputy PM for legal affairs and many other senior positions.
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