Independence of Judiciary & Journalism [Archives:2001/18/Reportage]

April 30 2001

Mr. Michael E. Hartmann, Judicial System Officer, Regional Coordinator, Bkro region, UNMIBH Judicial System Assessment program was delegated by the UN to various countries including Yemen. Mr. Michael delivered a lecture on the Yemeni Journalists Syndicate (YJS) on the Independence of Judiciary and its Impact on Freedom of the Press”. Mr. Mahboob Ali delivered a speech welcoming the guest and appreciating his long experience. The lecture was attended by many members of the media who contributed and voiced the worries and concerns of journalists.
Mr. Michael indicated that different countries have different levels of freedom for the press. He said “In Yemen, based on your constitution and on the international treaty, the International Covenant for Protection of Civil and Political Rights of 1966 which Yemen signed, you have the freedom of expression and the freedom to seek information of all kinds. There are limitations to this freedom. It is not absolute. The limitation is that the rights are limited in that you must have respect for the rights and reputation of others, for the protection of national security, public order and morals.
Article 20 also provides another limitation. That is expressing hatred which incites discrimination or violence can be prohibited by law.”
As for the Yemeni Penal Law, he said “I am struck by article 197 of your Penal Law that stipulates “Whoever insult the president of the state in public in order to offend him, or whoever criticizes the ruler of a foreign country due to matters pertaining to that position, or whoever insults the presidency of the country, or the leadership of other countries, has violated a penal code.” I, personally, disagree with this. Because only through criticism can one cause change. One of the basis principles o the United States was summarized by a great jurist when he said “The freedom of speech meant that any idea, even one that was totally wrong, has the right to be stated, because only if ideas are exposed to the market place, of the market place of ideas, can they be looked at in comparison with others and shown to be false.” Of course, we have limits too. Thus, I am personally against the over wide-ranging concept in article 197 of the penal code.
I believe law No 25 of 1990 of the Press and Publication Law at article 103 is also a violation of the International Covenant for Civil and Political Rights. In article No 103 subdivisions “c” and “e” stipulates “Anything which might spread a descent and division among the people”. This should not be interpreted as including criticism which does not cause a danger of violence. It is a very broad term since proper speech and proper criticism not only may spread dissent among the people, or cause a division of opinions, but many times the only way to have change is to bring a new idea to the people. Let’s say to change the law. This needs some people to adopt it. This then will cause a division of opinion which you can call descent. Ideas will fight instead of people fighting. This is something not to be criminalized. This is something to be encouraged and welcomed. So descent and division in itself is good. I hope and I urge the courts and the prosecutors to never use this law or make it prevalent.”
On how to ensure the independence of the judiciary, he said “I have been made aware as others told me including lawyers, judges and prosecutors that one of the problems of the judiciary here is that arrest and prosecutions are made for people who should not be prosecuted. Moreover, there are people who are powerful or who have protection due to their connections and money, and are not prosecuted when they should. To guarantee the independence of the judiciary, first you need to have a professional judiciary with its own ethical code. A written code of conduct which it enforces upon its members. This means that if the Supreme Judiciary Council receives a complaint that one of the judges or prosecutors has taken a bribe, or he is not doing his job, the council investigates, calls witnesses, allows the accused to defend himself and when found in violation of the rules be disciplined including dismissal. I emphasize that mere transferring of an individual from one place to another is not enough. If the person is in violation of people’s rights, which is part of the penal code, he should be prosecuted.
The judiciary must also have decent pay and be free from the fear that they will lose their jobs if they make some decisions to the disapproval of some influential people.”
On the role of the press, he said “The press is an essential part of this. The press can trumpet issues of violation by publicizing things far and wide in Yemen, and spur the government to take action. Because it is the only thorough publicity, through making people aware that the law is not enforced equally, you can press the government to correct things. Without that you won’t have a truly independent judiciary. And press in cooperation with other groups in society are part of the civil society which can put pressure on the government to change laws. These should the laws that do not allow the prosecution of the police and judiciary officials unless someone agrees it may happen.”He also stressed the importance of the press being responsible and said “Privilege and protection of the right of free speech and expression requires responsibility which includes not just an ethical code and disciplining of the judiciary but of the press as well. Every newspaper should have a copy not only of the press and publication law but also of the penal law and other laws. Before thinking of criticizing the judiciary which violates the independence of the courts they better know what the facts are. Otherwise this would not be a responsible journalism and would deserve punishment. I suggest that the syndicate should have a written ethical role, should have a place where any person can complain about the press. If you want the protection of the press you should be responsible. Do you convene a small group and investigate the complaints?! Have you ever announced or publicly reprimanded a member of the press for not doing his job? If not, you’ve failed.
Last, the journalist and the media just like judges and prosecutors should never take money. Taking money destroys independence. Article 158 of the penal law refers to bribing employees of the private sector. It states that if you as reporters take money without knowledge and approval of your employer, you may have up to 2 years in prison. I disagree with article of 158 because I don’t think it is strong enough. I think it should be changed. I think it should says if employees take bribes for performing a duty they otherwise do not perform, they should be penalized even if their employer approves. If you take a bribe to cover an event, the fact that you give half to your publisher does not make it a good act. It makes it even worse.”