Judiciary in Yemen: How Independent Is It? [Archives:1998/19/Law & Diplomacy]
By: Jamal Al-Adimi
Chief Editor, Al-Qistas Journal
The Yemeni Constitution defines three forms of power: legislative, executive and judicial. The judicial power is described only in a general way and briefly (in the third section of the third chapter), whereas the other powers are described in detail.
However, the Constitution clearly explains its concept of the judiciary as independent: “judicially, financially, and administratively”, and states explicitly that judges are to be independent, with no authority over them except the law itself. The Law of Judicial Power defines the concept of the judiciary as independent even in its title, and it reiterates that independence throughout its articles.
However in practice, this law gives the executive power of government supreme authority. Thus, it renders the judicial power dependent, lacking the independence guaranteed to it in the Constitution.
The law, which was supposed to assure the independence of the judiciary therefore violates the basic principle of the separation of powers upon which the Yemeni democracy is based.
The Law of Judicial Power grants the executive power the authority to establish courts, appoint judges for the Supreme court (the highest judicial power in the country), appoint all judicial positions, and transfer judges. The executive power, according to the law, is even involved in determining the salaries and allowances of judges.
Even though the articles of this law sometimes state “after approval of candidacy from the Supreme Judicial Council or the Attorney General or the Supreme Court”, this caveat has no meaning in reality, because it is the executive power itself which appoints the Attorney General and the Supreme Court Judges. Moreover, four of the eleven members of the Supreme Judicial Council come directly from the executive power, and the other members are either appointed directly or indirectly by the executive power (Law of Judicial Power, Article 104).
With respect to formation of courts, it is the executive power which decides how many appellate courts there should be and how many sections they should have, after consultation with the President of the Supreme court and with approval of the Supreme Judicial Council (Article 39).
The executive power recommends to the Supreme Judicial Council the appropriate number of primary courts to establish, and determines their jurisdiction (Article 45). It also issues the decree forming the technical office of the Supreme Court after approval of the Supreme Judicial Council, according to recommendation of the President of the Supreme Court (Article 34). According to Article 54, all prosecutors come under the authority of the Attorney General, who in turn is under the authority of the executive power of government.
With respect to appointments in the judiciary power, one of the most significant aspects of an independent judiciary, the situation is not better. For instance, the existing Supreme Court was chosen, according to Article 59, by the executive power. The subsequent Supreme Court will be appointed by the executive power as well, upon recommendation from the Supreme Judicial Council, from a list prepared by the Judicial Investigation Authority which is itself part of the executive power. The executive power also appoints all other judicial posts after approval from the Supreme Judicial Council. It appoints the Attorney General, the Advocate General, and assistants of judges and prosecutors (Article 59).
According to Article 83, it is illegal to transfer judges, except for the regular judicial movement every three years. However, according to the law, the executive power determines the movement of appellate court judges after consulting with the President of the Supreme Court and receiving the approval of the Supreme Judicial Council (Article 65b). The executive power also submits recommendations for the movement of primary court judges to the Supreme Judicial Council (Article 56c). Furthermore, the executive power has the right to second judges to another court rather than that to which they are assigned, for as long as six months at a time (Article 56f).
The discussion of rights and duties of judges, according to the Law of Judicial Power, clarifies beyond any doubt that Yemeni judges are under the authority of the executive power, even with respect to their salaries and allowances and those of the judicial administrators. Thus, the executive power determines benefits for employment and inquisitions (Article 68), as well as per diems for rural areas (Article 69). It also determines the housing allowances (Article 70) and regular salary increases for judges with approval of the Supreme Judicial Council (Article 72).
With respect to the aforementioned benefits, the executive power is the agency which recommends or awards any other benefits for the judiciary power, and it has the right to modify them (Article 67). In addition to the above, the executive determines when judges should take their annual leave — in addition to Ramadhan (Article 37), and issues the decree for retirement for a judge, with the approval of the Supreme Judicial Council (Article 78).
Although the Constitution states that the judicial power should be “independent judicially, financially, and administratively” (Constitution, Article 47); the Law of Judicial Power states that the Minister of Justice shall have the right to supervise financial, administrative, and executive matters in all courts and for all judges (Article 89).
Judges may not be dismissed or removed except in the case of impeachment or punishment, according to the Constitution and the law. The Minister of Justice (who is a member of the executive power) is the one responsible to notify the Presidents of the Primary and Appellate Courts (Article 90) and the judges working in the Courts (Article 91) of any violations by judges of their responsibilities. Judges have the right to appeal dismissals in the Supreme Judicial Council.
The Law mandates the establishment of the Judicial Investigation Authority, whose members are appointed through the executive power, with the approval of the Supreme Judicial Council; and that a member of the Supreme Court should head the Authority (Article 92). The Law mandates that the Judicial Investigation Authority should perform regular evaluations of judges’ work, which affect their assignments. The Law of Judicial Power clearly establishes that the Judicial Investigation Authority is prt of the executive power (Article 92), and that it submits recommendations on supervising the work of the courts to the executive power (Article 94, Section 3). The Judicial Investigation Authority sends its decisions to the Supreme Judicial Council via the executive power (Article 99). The executive power issues by-laws for the Authority (Article 94, Section 4).
The above clearly demonstrates the dependence of Yemeni judges on the executive power. There is thus no balance of powers as stipulated by the Constitution, which defined the judicial power as an independent power.
This is just an opinion based on the current reality and practice. In view of the Article of the Law of Judicial Power discussed above, there is a clear conflict between Constitution and the Law. It will take considerable analysis and review to close the loopholes in the law and make it consistent with the Constitution from which it is derived!!!
This conflict between the law and the Constitution leads us to pose a question: What is the Constitutionality of the Law of Judicial Power which has been in effect in Yemen since 1990 – a legal question which needs an answer.