For laws to be meaningful: The Judiciary must be independent [Archives:2006/946/Opinion]

May 15 2006

Hassan Al-Haifi
The issue of a free judiciary is one of the most important elements of a democratic society and it goes without saying that if the judiciary of any country is not given the independence necessary to carry out its function, then that country has not achieved a major standard of democratic and progressive governance .

One of the major obstacles to development in Yemen and in most of the Arab World is that the judiciary is subject to controls and at best influence of the executive branch of government. In some cases, there is also interference in the work of the judiciary by social and elitist elements in the society. That is why it is difficult for the judiciary to carry out its duties in a fair and judicial manner, which will ensure that laws are interpreted properly and more important that laws are enforced equally on all citizens who break them or think that they are immune to proceedings based on these laws.

Experience and several studies have clearly indicated that without an independent judiciary, society tends to lean towards anarchy and chaos and the deprived in the society have no recourse to turn to deal with their grievances. Furthermore, with a judiciary unable to do its work freely and without interference from any powerbrokers or lobbies, it is difficult to see how a favorable legal and institutional climate can be assured in any country suffering from a weak and dominated judiciary.

In Yemen, there is also an obvious need to ensure that the Courts are able to deal with the hundreds of cases sitting and waiting for judicial decisions without the interference of the executive branch. This means relinquishing the Supreme Judicial Council and leaving the Supreme Court to supervise and monitor the progress of the judicial process in the country. This will significantly give the President greater freedom in dealing with the already many issues that he must contend with as part of his executive duties and furthermore enhance his image as the protector of the laws and the people living under these laws.

The case of the fight between the Egyptian independent judges and the state run judicial council is a clear case in point when the judiciary finds itself unable to render independent decisions based on law and its interpretation of these laws. This case is important because the decisions involved have to do with an important process of democratic government. The right of the people to freely elect the officials can be rightfully supervised by the judiciary, but if such supervision is going to be subject to the influence of a powerful executive branch of government that insists on immortalizing their overwhelming power in that government, how can one honestly say that indeed democratic government has indeed been achieved.

There are of course basic concepts in democratic government that cannot be compromised and an essential element as such is separation of powers and the existence of a free and independent judiciary. Egypt is not alone in this respect and Yemen is not the only Arab state that needs to put such important essentials of democratic practice into play. But Egypt and Yemen can take the lead in the Arab World if they fully recognize that the independence of the judiciary is absolute and well established. Otherwise the Arab World will continue to suffer from many problems associated with poor governance and weak law enforcement. The latter are breeding grounds for social discontent and a climate that cannot be considered amicable to local or foreign investments, all of which are needed to restore vitality to the economies of both of these important Arab states.