Yemen Judiciary in the agenda of reforms [Archives:2006/919/Opinion]

By: Mustafa Ragih
Peaceful transfer of the presidency is impossible in Yemen. Of course, elections are held, but in reality they are conducted arbitrarily. This is why nearly everyone is completely convinced that the presidency depends on current political trends more than public will. This is not confined to the situation in Yemen, but rather it is common in the systems of all Arab states. Thus, internal change is impossible, for there are no powers qualified enough to bring about changes. On the other hand, change carried out from outside the country is no more democratic and leads to invasion, aggression and disorder, as is clear in Iraq. Such findings lead to arranging the conditions of democracy in Yemen before thinking of making a change.

It is difficult to change President Saleh, but opposition powers and foreign pressure can do something, namely in the fields of reforming the judiciary system, enhancing press freedom and creating civil community organizations.

Authorities frequently argue that a change will bring fundamentalists and chaos alike. But such justifications are not valid in the presence of demands for reforms, with the exception of the presidency.

Egypt's President Mubarak had to amend Article 76 to allow competitors to run for president and presidential voting would then not be conducted by referendum. Such occurred under foreign pressure, which thereafter resulted in the success of 88 candidates from Egypt's largest Islamic group, namely the Muslim Brotherhood movement. Here in Yemen, the opposition's ambitions, as well as the popular powers, are much greater. In case the ruling party intends to take possible steps and procedures to limit such ambitions, the following is likely to happen:

– Some nominees will be selected to run for president by recommendation of ruling party MPs.

– Complete judicial reform.

– Dealing with cases related to press freedom violations and ignoring the draft press law now delegated to the Shoura Council.

– Governors will be elected rather than appointed, as is the case now.

While the Egyptian judiciary system represents the bright side of a non-democratic state, Yemen's judiciary system remains the biggest obstacle to democracy. To put it more clearly, the judiciary system still is used as a tool at the hand of politics, while judges seem to be government employees rather than working in independent authority. Legally speaking, there is no problem in the judiciary system being independent. In 1995, the Constitution granted the judiciary independent authority. However, the 1991 judiciary authority law did not pay much attention to judiciary independence and this conflicts with the Constitution.

The president still heads the judiciary authority. Although the government announced two weeks ago that henceforth a judge will head the judiciary authority presidency, this still is doubted. According to these changes, the Minister of Justice will have exceptional powers making him not only a government representative but also the most powerful judiciary figure. Thus, he has the right to deputize and remove judges and have a say in judiciary budget and promotions. He also can stop judges from working and file a disciplinary suit against them. Such powers make him a judiciary dominator, while the judiciary movement that takes place every two years remains under his influence, as well as that of the most influential politicians. This movement is empowered to appoint, promote and replace judges from one court to another. It also, so to speak, represents a punitive tool against those judges issuing judgments running counter to ruling party interests.

In the second half of the 1990s, some judges brightly portrayed the judiciary system in Yemen. These judges were involved in looking into press-related cases, most notably opinion articles and cases regarding political parties. Most notable among them are the cases of the Yemen Times newspaper (known as the Sana'a University land case), Al-Shoura newspaper, voter registration invalidity and university fees.

Judges dealing with such cases were removed to governorates outside Sana'a, such as Judge Hahmoud Al-Hitar (moved to Dhamar), Judge Haikal Othman (moved to Hodeidah) and Judge Al-Jindari (moved to the Judicial Inspection Staff), who looked into the Yemen Times case.

Executive power's dominance over judiciary authority had dreadful consequences for press freedom. In the past 10 years, official bodies referred dozens of cases against newspapers to courts. Practically speaking, most cases were groundless and deceptive.

Some cases are reserved as pressure cards to be used when needed. A year and a half was enough for Al-Usbou newspaper's editor to forget the suit filed against it when he was summoned to stand trial, as his writings began exceeding permissible limits. Similarly, cases involving Al-Wahdawi and Al-Thawra newspapers are reserved until needed. Meanwhile, state-run and ruling party-affiliated newspapers badmouth social personalities, institutions and parties, shifting public attention away from any information ministry issues.

President Saleh's quitting the Supreme Judicial Council presidency represents a step forward, but reshuffling the council by vote of provincial appeals court judges is required. The council's current structure includes four executive authority members and three others also are appointed.

Above all, the law does not require council nomination or council member approval in appointing the attorney-general, the first lawyer, irrespective of appointing judges and assistants of attorney-general members. The Council of Ministers enjoys remittances related to modifying salaries and allowances of judges and prosecutors.

Due to judiciary law's current state, the situation necessitates amending the law or changing it fully, not just amending Article 104 as the government did. Until now, judges still have no voice to popularize their issues, nor do they have a syndicate to bring them together. A praiseworthy attempt was made between 1995 and 1997 when Judge Hamoud Al-Hitar and some other judges tried to found the judiciary forum as a judges syndicate, but the attempt went awry.

Mustafa Ragih is a Yemeni journalist
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