Draft law for promoting independent Judicial Authority [Archives:2008/1136/Front Page]

Nadia Al-Sakkaf
SANA'A, March 9 ) Independence of the Judiciary System has been raised as one of the issues that must be dealt with in order to promote democracy, human rights and investment in Yemen. Driven by a Yemeni human rights organization known as HOOD, a project proposing a draft law for the judicial authority is underway with funding from the Middle East Partnership Initiative. The draft law has been completed and was proposed a Parliament member (MP) to Parliament. It is still with the Constitution Committee, which will approve its consistency with the constitution before sending it to the Justice and Endowment Committee at Parliament for discussion. It is the latter committee's responsibility to review the draft's content before forwarding it to Parliament for voting, said MP Ali Abu Hulika, chair of the Constitution Committee.

The proposed law is based on article 149 of the Yemeni constitution, which states that “The judiciary authority is an autonomous authority in its judicial, financial and administrative aspects and the General Prosecution is one of its sub-bodies he judges are independent and not subject to any authority, except the law. No other body may interfere in any way in the affairs and procedures of justice However, other than these few lines there is no mention or practice endorsing the independence of the judicatory authority.

The judges are treated as employees of the Ministry of Justice, which gives them their salaries and supervises their performance and related issues, such as pensions and absenteeism.

The highest judicial branch of the state is the Supreme Council for Justice, which is comprised of 15 judges appointed by the president, who is head of the executive authority of the republic.

“The new law will enable judges to be free from state control and then truly speak their mind without fearing consequences in their paychecks or appointments,” said Khaled Al-Anisi, executive director of HOOD.

Instead of the judges being appointed, they would be elected, with five judges directly elected by Parliament, who would hold the highest positions in the Judiciary authority. Another five would be elected by the Judicial Forum for Judges, to be created. Two would be elected by the General Association of the Supreme Court. One judge would come from the General Association for the Attorney General's office, one would be appointed by the Supreme Judicial Council to become the dean of the council's institution, and finally the last of the 15 judges would be the chief of the lawyers syndicate.

The new proposal also deals with issues such as the judiciary authority's budget, giving the authority full autonomy in spending and in defining the budget, which should be no less than 10 percent of the national budget. The new law touches on operational issues such as judicial leave and vacations that suspend the courts for three months every year. The new law grants judges an annual leave of one month, which they have to take alternatively so that the courts would remain in session.

“We are excited about this draft because it bases the merits given to judges on seniority and not on who knows who. It is a modern law and would create a leap in the judicial system in Yemen,” said judge Taher Al-Tayar, chair of the board of trustees of the Judicial Independence Research and Studies Center, a non-governmental organization concerned with carrying out legal research and reporting violations of the executive authority against the judicial authority.

The new law prevents judges from holding executive positions in the government, a widespread phenomenon in the current system. According to Al-Anisi, this would also prevent judges from playing a role in politics, as they should always hold an unbiased and independent position.

The draft law has been distributed to judges, MPs, government authorities and concerned bodies. Judges have expressed their pleasure although they are apprehensive about it, since it would limit the control of the Ministry of Justice and put matters into the hands of the judges themselves.

There are around 1,600 general attorneys and 2,500 judges in Yemen, some of which are retired. The new law would improve the living conditions of the retired judges, since it would make their pensions equal to the salary of working judges. Through the proposed law, they would play an active role in the elections being members of the Judicial Forum for Judges.

This is the first time a project of its kind has been created for the reform of the judicial system. The World Bank and USAID, among other donors, have helped reform the current system through education and awareness training for the judges and lawyers. However, these events were done in partnership with the Ministry of Justice and did not target the judiciary system as an independent authority.

Yemen's judiciary has five types of courts: criminal, civil and personal status (for example, divorce and inheritance), kidnapping/terrorism, commercial, and martial. All laws are codified from sharia (Islamic law), under which there are no jury trials. Criminal cases are adjudicated by a judge, who plays an active role in questioning witnesses and the accused. In addition to regular courts, the law permits a system of tribal adjudication for noncriminal issues, although in practice tribal “judges” often adjudicate criminal cases as well. The results of such mediation carry the same, if not greater, weight as court judgments. Persons jailed under the tribal system usually are not charged formally with a crime but stand publicly accused of their transgression.
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