الرئيسة / Yemenat In English / Since the formation of the Reconciliation Government in mid-December 2011 until the beginning of May 2013

Since the formation of the Reconciliation Government in mid-December 2011 until the beginning of May 2013

 Yemenat

Report submitted by Judge Abdul-Wahab Qatran to the public shadow front of the salvation front of the peaceful revolution

The year 2011 was marked as the year of the Arab Spring.  Similarly 2012 was marked as the year of the judges’ revolution especially in Yemen where the Yemeni Judiciary has initiated heralds through the judges’ revolution, which lasted for four months. Two-thirds of the Yemeni judges went out demanding real and complete independence of judiciary in accordance with the international standards. The judges have realized the danger of continuing the recent situation of their subordination to the absolute military systems that crushed the judiciary and judges, intervened in their work, and marginalized their role in public and political life. Therefore the people lost trust on the judiciary due to the policy of deliberate depravation of the judiciary as a government facility by the absolute governor represented by the former President / Ali Abdullah Saleh before he was ousted by the youth popular revolution covered seventeen provinces where millions of Yemeni people went out in a popular peaceful revolution that included all categories and classes, which tightened the noose on the military ruler (Saleh), who was forced to sign the Gulf Initiative on 23/11/2011, according to which he stepped down from power versus giving him the legal immunity and the lack of prosecution. One of the goals of that revolution was establishing an independent, fair and impartial judiciary; therefore the revolutionaries dedicated a Friday named the Judiciary Independence Friday.

 

The Yemeni judges realized that it is a favorable opportunity to grab their independence and the independence of the judicial institution before any individual or party could single out the power; they went out in a massive revolution lasted from early March to mid-May 2012 .. We will analyze it in details later.

The judiciary revolt role was in putting pressure on the authorities to conduct reforms and to adopt legal amendments- we will touch on them in details because of their importance of the fact that all what was achieved is based on the judiciary revolution. Then we will stop at explaining the legal legislations issued or on the way to be issued regarding the judicial institution, and to what extent they meet the aspirations of the Yemeni independent judiciary.

Then we will refer later to the presidential decisions relating to the judicial appointments and movements, as well as the ministerial decisions and their legitimacy and motives.

 

1 – On 7/12/2011 the National Reconciliation Government (NRG) was formed and judge/ Morshed Ben Ali Morshed Al-arshani was appointed as the Minister of Justice. This appointment was of the share of the JMP (Al-eslah).

 Than the first was not to politicize the judiciary. It was important to appoint an independent judge not belonging to any ideological, religious or partisan stream, because the Ministry of Justice is the Ministry, in accordance with the law, which is governing the judiciary affairs.

It should be noted that the Judicial Authority Law in force gives the Minister of Justice more than "49" of the duties that slaughter the principle of the judiciary independence, and turns it from an authority to a facility subordinated to the executive authority.

Minister of Justice graduated from the Faculty of Sharia, Islamic University of Medina in 1979. He was appointed in this position to implement the agenda of a particular party, stream or group which will be clear from his actions and decisions, taking note that he held senior positions in the judiciary before the appointment, he brought together between those jobs and the partisan and political work as a member in Al-eslah party, which is inconsistent with the duties of his job. Here are some of the positions he occupied:

– Vice-president of the Judicial Inspection Authority of the year 94-2000.

– Member of the Supreme Court, the head of the personal department, section (b) of the year 2000.

– Member of the Supreme Court, the head of the personal department, section (a).

– Member of the Supreme Court, the head of the Civil Service, section (b).

– Member of the Supreme Judicial Council in the period from 1998 to 2003.

– Secretary General of the Yemeni Judicial Forum from 1995 until now.

– Head of Al-eslah social charitable association of the year 2009 until now.

– Member of the Legitimacy Supervisory Board of the unity of the Islamic Checks in the Central Bank of Yemen.

– Chairman of the Legitimacy Supervisory Board of Saba Bank.

– Chairman of the Legitimacy Supervisory Board of Yemen and Bahrain Bank.

– Member of the Legitimacy Supervisory Board of the Islamic Insurance Company since its establishment until now.

– Chairman of the legitimacy Supervisory Board of Yemen and Kuwait Islamic Bank since its inception until now.

It is important to note that the appointment of Al-arshani as the Minister of Justice was imposed by Gen. Ali Mohsen Al-ahmar commander of the First Armed Division and a cousin of the former president. Moreover, Al-arshani was working as a clerk writing documents of real estate and companies belonging to Mohsen, so he owes him his absolute loyalty. In addition Al-arshani belongs to the ideological radical wing of Al-eslah Party (Muslims Brotherhood), which had negative impacts on the institution of the judiciary.  It is known that the Ministry of Justice is the most important ministry in the transitional period, because the concept of transitional justice involves two concepts justice and transition, but the accurate semantic meaning of the concept is to achieve justice during the transitional period experienced by the State. 

As for Transitional Justice is important, the Ministry of Justice is described as the bright mirror of the revolution, so it is important to select the Minister of Justice very carefully. Therefore, no one has the right to appoint a justice minister after the revolution except a judge known for his competence, integrity, independence and distance from the partisan and religious streams..

However, in Yemen, the Minister of Justice is an ideological and radical person imposed by Gen. Ali Mohsen Al-ahmar to serve his agenda, and to maintain his political and economic interests. He became so rich as a result of his relationship with Ali Mohsen, and now he is practicing various types of exclusion and marginalization in the justice sector to all those who are not belonging to his own party. He doesn’t also feel embarrassed in tampering with the budget of the judiciary and in disbursing the funds and the budgets to close friends in his party and relatives. The process of appointing the informers in the joints of the judiciary, marginalized and crushed it for the benefit of the exceptional courts (specialized courts) continued, as well as drown it with ideologists accusing others of infidelity. This is what we read, in particular, through the appointment of most of the faculty members at the Institute of the judiciary of judges belonging to Al-eslah Party, even though they are not qualified enough to such positions except that they are belonging to the Brotherhood such as Sheikh Mohammed Sadiq Almoales, a professor at Al-Eman University, who has been appointed as a member of faculty at the Higher Institute of the Judiciary from this year, and mandate him to teach the students of the Institute the Judicial Code of Conduct, etc.).

2 – On 01/21/2012 the Vice President, at the time, Abed Rabbo Mansour Hadi issued the Law No. (1) for the year 2012 on granting the immunity to Saleh after being passed by the House of Representatives and the law was passed in accordance with the Gulf Initiative and its executive mechanism signed on 23/11/2011 by the political parties in Yemen (Public General Congress (PGC) and its allies and the JMP and their partners) in the Saudi capital Riyadh. The initiative is considered as a constitutional declaration where in its first part under the title of the introduction provided Item No. 4 that states (the agreement on the Gulf Initiative and its executive mechanism replaces any available constitutional or legal arrangements and may not be appeal before the State institutions)

The initiative also states that the Parliament has to issue a law which grants immunity to President Ali Abdullah Saleh and to those who were working with him.

It also states in item III that the House of Representatives, including the opposition, has to pass the laws that grant immunity against legal and judicial prosecution that may be taken against the former President and who worked with him during his reign. The Parliament has already approved at the beginning of January 2012 the immunity law to give the former President Ali Saleh full immunity, and to give his aides the immunity in relation to the criminal prosecution excluding money issues.

On the grounds of that law, the Constitution, Law and Justice were slaughtered, and the constitutional right of citizens in the litigation was confiscated. The blood of the martyrs was shed and the killers were fortified by a law issued by a legally questionable Parliament that was given an extension for two years in November 2009 according to a text added to the Constitution based on consensus between the political parties represented in the parliament.

The Constitution has been disabled, the right of litigation was confiscated, judiciary was shackled, and justice was slaughtered by the initiative that has no legitimate or legal support. It is only a contract between the political parties, and does not live up to the level above the constitution, especially as it did not put to the people for a referendum.

 But in Yemen, that law was passed and approved by the parliament, and issued by the Vice President. The people also did not reject it and the judiciary welcomed it. That is because Yemen is governed by tribal customs, due to the continuation of the pre-law state and the rule of the norms and traditions of the tribe..

3 – On 7 / August / 2012, President Abed Rabbo Mansour Hadi issued Law No. (18) for the year 2012, to amend the articles (104, 104 repeated) of the Judicial Authority Law, and change the total number of members of the Supreme Judicial Council from 8 to 9 members, including the head of the Supreme Judicial Council. The amendment states that the head of the Supreme Court becomes a member of the Supreme Judicial Council, after he was the head of the Supreme Judicial Council, according to a former legal text before the amendment.

On the basis of the judicial authority law before the amendment, Judge Essam is the head of the Supreme Judicial Council by virtue of his position as head of the Supreme Court. According to the latest legal amendment, the President of the Supreme Court becomes a member of the Council, and the head of the judicial council is appointed by the President of the Republic.

It is noted that the amendment is considered as a kind of circumvent on the judges’ revolution and the contract between the judiciary forums and the Minister of Justice and the President of the Republic signed in the end of April containing the Authority's commitment to prepare a new draft law for the judiciary that ensures real and complete independence of the judicial authority, and ensures the right of judges to elect the Supreme Judicial Council, to grab the duties of the Minister of Justice and return them to the elected Supreme Judicial Council, and to attach the Judicial Inspection Authority to the Judicial Council instead of the Ministry of Justice, but Minister of Justice tarried and delayed. After some judges had criticized the minister across articles published in the newspapers he responded to those pressures and submitted a draft law to the Council of Ministers.

4 – On 11/13/2012 the Council of Ministers in its meeting held on a draft law with regard to amending some articles of the Judicial Authority Law No. 1 of 1991. The draft law was published two days later in Al-qadaia newspaper, issue No. 132, on 11/15/2012.

the amendments, according to the news published in Al-thawra newspaper on 14/03/2012, aimed to strengthen the independence of the judiciary, to activate the role of the Supreme Judicial Council and expand its powers, and to transfer the powers of the Minister of Justice in the law in force to the Supreme Judicial Council or the head of the Council. It aimed also to fulfill the principle of separation of powers, and to deepen the independence of the judiciary by connecting the subordination of public prosecution to the head of the Supreme Judicial Council.

The draft contains four articles. The first article states the amendment of 13 articles of the law in force, they are (8-11-39-45-54-60-65-92-94-95-104 repeated -105-109).

The second article states that "the head of the Supreme Judicial Council replaces the Minister of Justice in practicing the duties and powers provided in the articles (59-66-67-68-69-70-72-73-78-85 -90-91-97 – 98-99-111/2-115/2-118/1)."

Article III states the abolition of what is inconsistent with the new amendments. The last article states applying the law from the date of issuance and publishing it in the Official Gazette.

Thus, the amendments contained in the draft have included 31 of the articles of the law.

The amendments adopted by the draft did not include Article 89 of the law, which states that “the Minister of Justice has the right of the administrative, financial and regulatory supervision on all courts and judges without prejudice to the judiciary independence regarding its issued rulings"

And the survival of this article means the survival of the Minister’s duties in the supervision of all courts and all judges in regard with all the aspects mentioned before, which means that all courts and judges remain subordinate to the Minister of Justice, and the supervision is on the subordinate, and the text is so clear that it does not allow any disputation.

Accordingly, the budget of courts and the judges' salaries and benefits that they receive such as the means of transportation, treatment recompense, training or others, as well as other recompenses will remain subordinate to the Minister of Justice; as well as the affairs of the administrative staff working in all courts, buildings, equipment and accessories that the judges need all will remain subordinate to the Minister of Justice. All of this might be a means of control, grant or deny what does not negate the possibility of influence or pressure on the judges and their independence, although the impact through grants or prevention is more dangerous than any other means of influence.

It was mentioned earlier that the law draft and its amendments did not include Article 67, which still gives the prime minister the power to issue the decision in the most important thing regarding the judges which is their salaries and the recompenses attached to the salary. The amendment in this article was limited on the transfer of power to present the amendments to the Prime Minister from the Minister of Justice to the President of the Supreme Judicial Council which means that the judiciary is still subordinate to the Prime Minister and the Council of Ministers and Minister of Justice in this important matter.

    The amendments did not include Article (104) of the law in respect of the formation of the Supreme Judicial Council, which means that the Minister of Justice – a member of the executive authority – remains an active member of the Council participating in decision-making in all details of the judges’ affairs, rather, the Council, in accordance with Article (106), is not be held without him.

    The amendments also did not include Article (108 / b) of the law which states to inform the Minister of Justice about the Council resolutions and the full powers of the Minister of Justice with regard to the courts’ staff in accordance with Part VI of the law, from article (124) upwards.

    Finally, the amendment did not include Article (93) of the law which obligates the judicial inspection to send a copy of the reports concerning the inspection matters on the judges’ work to the Minister of Justice.

Accordingly, the public prosecution received, under these amendments, greater independence than that granted to the judiciary.  We note that the draft law in the amendment of Article (54) completely eliminates the subordination of public prosecution and the Attorney General to the Minister of Justice. As the result, the Minister no longer has direct authority over the Public Prosecution. In contrast, the amendment kept the text of Article (89) of the law which decides the subordination of all courts and judges to the Minister of Justice as we have said. 

In addition, the financial and administrative affairs of the members of prosecutions are related to the Attorney-General and not to the Minister of Justice. As well as the case for the affairs of the prosecution and the staff working there, and issues related to buildings, equipment and means of action, all are related to the Attorney-General and the minister has no power on them.

Thus, the public prosecutor becomes completely independent of the Ministry of Justice concerning the financial and administrative affairs. But in the courts (the judiciary), the situation remains unchanged.

Of the requirements of the independence of the judiciary is that the institutions which are unrelated to the judiciary are not included in the judiciary in the precise technical sense, such as a public prosecution that is an institution of claiming and accusing.. People imagine the judge who is neutral and who makes impartial judgments in their quarrels, but they do not imagine that the litigant who brings suits against them is a judge whatever his honor in the litigation is, he remains a litigant. And members of the public prosecution of course are not independent because of their subordination to their superiors, which requires the implementation of their orders and decisions.

 

 Excluding the public prosecution, belonging to the executive authority, from the judiciary, giving the judiciary its independence, is a system adopted by the oldest countries such as France, Italy, England, the United States and Sudan.

  Then, no problem if the members of the Public Prosecution receive benefits and guarantees of their own or to be treated as the judges in terms of benefits and physical guarantees.

This paradox raises questions about the purposes and seriousness of working for real and full independence to the judiciary about the efficiency of treatments adopted by the draft law, especially if we take into account what we have mentioned earlier that there are important and necessary topics should be covered by the amendment.

 

Decisions issued in 2012 on the facility of the Judiciary

Presidential decisions:

 Presidential decisions are issued on the promotion of a number of members of the judiciary. They are about (1376) judges and prosecutors. That was on Wednesday: 03/14/2012

 Those decisions were based on the Gulf Initiative and its executive mechanism signed on 23/11/2011.

The promotions were distributed on all judicial grades from partial judge to head of the Supreme Court.

Noteworthy that these promotions approved by the Judicial Council in the beginning of 2010 and presented to the President of the Republic to issue the decision on them, but remained dumped in the drawers of the Office of the Presidency for two years. When Abed Rabbo Mansour Hadi became the president, he released them with the help of the Minister of Legal Affairs who is belonging to the Socialist party and who is appointed for the first time in the reconciliation government. He took the lists including the names of the judges whom the Supreme Judicial Council approved their promotions in 2010 to the new president’s house, because the promotions are obstructive and suspended, according to the judicial sources, by the head of the presidency office at the time, Ali Mohammed Al-Anesi, who hampered and kept it in the drawers of the presidency office that period.

The familiar with the lists of the promotions issued by the new President and published in the press, finds that they were approved by the Supreme Judicial Council, appointed by the former president and that most of its members are soldiers and informers, most of them promoted themselves to the rank of Chief Supreme Court though they are not judges, the likes of Abdullah Farwan and Yehya Al- Jerafy. It also found that promotions are not based on transparent and clear criteria, such as seniority and reports of qualification from the inspection files; rather it was based on the standards of nepotism, cronyism and narrow loyalties. Many of those not eligible, and of those who are adopted to non-judicial work were promoted while the eligible were deprived of the promotion. Administrators, not judges, were also promoted. Those promotions raised grumbling in the judicial center and doubled the tension and the protest movement demanding the resignation of the Council..

 

      On 29/03/2012 the President issued two decisions to make some appointments in the judiciary and the re-formation of the Supreme Judicial Council, which read as follows:

"The Presidential decision No. (9) for the year 2012 was issued on doing some appointments in the judiciary as follows: –

1 – Judge / Hazza Abdullah Aqlan Al-yosofy, secretary-general of the Supreme Judicial Council.

2 – Judge / Rasheed Mohammed Abdo Howaidy Chairman of the Judicial Inspection Authority at the Ministry of Justice.

The Presidential Decree No. (10) for the year 2012, was issued on restructuring the Supreme Judicial Council as follows:

1 – Judge / Essam Abdul-Wahab Al-Samawy, President of the Supreme Court as Chairman of the Council.

2 – Judge / Morshid Ali Al-arashani, Minister of Justice, a member.

3 – Judge / Dr. Ali Ahmed Ala’wash, Attorney General, a member.

4 – Judge / Hazza Abdullah Aqlan Al-yosofy, Secretary General of the Council, a member.

5 – Judge / Rasheed Mohammed Abdo Howaidy, head of the Judicial Inspection Authority, a member.

6 – Judge / Dr. Ali Nasser Salem, a member.

7 – Judge / Abdullah Salem Ajaj, a member.

8 – Judge / Shafiq Ahmed Zoukry, a member. "

Those decisions were published in the Official Gazette issue No. VI in 2012 issued by the Ministry of Legal Affairs on 13 / March 2012 pp. 3-4

The decisions of the President of the Republic on restructuring the Judicial Council come after more than four months of the strike and protests of most of the Yemeni judges. At the top of their demands was sacking the previous board and giving them the right to elect the Judicial Council. After the president’s meeting with some of the heads and members of the judicial forums and after they had agreed on the standards of the re-formation of the Council, two days later, the judges were surprised by the issuance of the presidential decision of restructuring the Council in contrary to what they has been agreed with the president.

the re-formation of the Council based on a single standard that is the sharing between the parties of the conflict who signed the Gulf initiative in the city of Riyadh- the former president and his party, and his cousin dissident General Ali Mohsen al-Ahmar, commander of the First Armored Division and his party (Al-Eslah) assigning a share to the new president, neglecting the standards of seniority and competence, integrity and maturity. Moreover, four of the members are from the former Council were appointed again as well as four new members; we will publish a table showing the affiliation of each judge later.

Judge Abdul Wahab Qatran has published in Alawla newspaper, for the first time, an article of two episodes under the title "Reform the judiciary must be now" published on April 1 to 2, 2012 p 5 in which he said " JMP let down the hopes of the judges because it gave the bag of Justice to a member of a party and an ideologist minister imposed by Major General Ali Mohsen. We hoped that they would choose neutral, independent judge not belonging to any party or person, or a political agenda, but unfortunately what happened was in the opposite"

Qatran added: "the continuing strike of the judges resulted in the fact that a group of them met the president Hadi, who, in his turn, said that he understood their demands, and that he is ready to meet some of them of which the most important is the re-drafting of the law so as to ensure the election the judges for the Supreme Council on the condition that some of the articles will be amended in a matter of a week, and the re-forming of the Council from judges recognized for their impartiality, competence and integrity and not affiliated to any party or the military or tribal personalities who are chosen and raised their names to Hadi by the judicial forum till re-drafting the law in a matter of a month.

We think that Hadi could not do anything because he is governed by centers of power and the conflict of interests. Ali Abdullah Saleh and Ali Mohsen have money, wealth and economic and political interests, and the independence of the judiciary is neither in their interest nor in the interest of their supporters because if the judiciary is independent they will be presented before the courts, and they will be unable to intervene in its decisions. As well as a youngest prosecutor will be able to bring senior personalities, investigate and put them in the jail. Then the judiciary will be a nightmare that haunts influential personalities..

Like the military commission, the Judicial Council was formed by share between the two parties of the conflict..

 

Hadi's decision was issued to restructure the Council equally between Saleh and his party on the one hand and Mohsen and his party, on the other hand.

President of the Council judge Al-samawy and the Attorney General are of Saleh's men, while the Minister of Justice Al-arshany and judge Hazza Al-yosofy are of the supporters of Al-eslah party and Ali Mohsen!..

The judges’ revolution was aborted in the same way they aborted the people revolution, and they shared our distinguished council. "

 

Presidential decisions were issued on appointing members of the Supreme Court and making some judicial transfers for some of the heads and members of courts and appeal prosecutors.

 

      On 12/08/2012 the Presidential decision No. (34) for the year 2012 was issued to appoint 13 members of the Supreme Court.

      The presidential decision No. (112) for the year 2012 was issued to conduct a judicial partial transfer movement to some of the heads and members of the courts of appeal..

The decision included the appointment of (5) heads of courts of appeal and the transfer of (78) of the heads and members the appellate departments in the courts of appeal. We preferred not to mention the names in this report.

      The presidential decision No. (113) for the year 2012 was issued on the judicial partial transfer movements for some partial Heads of Prosecutions Appeal: They are (20) Prosecutors..

Those decisions, in addition to the Constitution and the law, were based on the Gulf initiative and its executive mechanism signed on the 23/11/2011.

Those decisions were signed by the following:

Judge Morshed Ali Al-arashani       Mohammed Salem Basendwah                Abd-rabbo Mansour Hadi

Justice Minister                                                  Prime Minister                                 President of the Republic

 

These decisions were published in the Official Gazette issue No. XV in 2012 on August 15, 2012

      On 08/29/2012 Presidential decision No. (35) for the year 2012 was issued to appoint Judge Dr. Ali Nasser Salem, head of the Supreme Judicial Council

Dr. Ali Nasser has served several jobs in the judiciary including: partial Judge in 1973, the judge of the Court of Appeals in 1974, a member of the Supreme Court – the head of the Civil department / Aden, 1982, then Vice-President of the Supreme Court since 1998 until 08.29.2012.

He holds a doctorate in international law -1981, majoring in civil law..

The decision was published in the Official Gazette issue No. XVII of the year 2012 on September 15, 2012

The new Chairman of the judicial council was appointed after the amendment of the text of Article (104) of the Judicial Authority Law, under which was the separation of the posts of the presidency of the Supreme Court and the Presidency of the Judiciary Council. The new head of the Judiciary Council is from Abyan which is the province located in the southern part of Yemen and the new President’ home. He himself is of the president's share and of his men. 

      Saturday, September 22, 2012 the Presidential decision No. (48) for the year 2012 was issued to appoint the judge Yehya Abdullah Hassan al-Ansi, a member of the Supreme Judicial Council.

Judge Al-ansi is the head of the court of appeal of the Secretariat of the capital Sana’a since 2009. He was elected in the beginning of the year 2011, as President of the Forum of the Secretariat Branch.  he is Ali Mohsen's man, who led the judiciary protests in Sana’a, in coordination with the Minister of Justice and Major General Ali Mohsen. It was said that his promotion to a member of the Judicial Council was some kind of a reward in order to circumvent the judicial demands.

      On September 22, Presidential decision No. (49) for the year 2012 was issued to appoint Ali Abed Rabbo Mohammed Saleh Al-ayashi as a director of the Office of the President of the Supreme Judicial Council.

      On 29 / November / 2012 Presidential decision No. (63) for the year 2012 was issued on the formation of the Supreme Committee for Elections and Referendum containing 9 judges:

1 – Judge / Mohammed Hussein Haidar al-Hakimi

2 – Judge / Khamees Salem Al-dini

3 – Judge / Samia Abdullah Saeed Mehdi

4 – Judge / Abdul Moneim Mohammed Hassan al-Iryani

5 – Judge / Sharaf al-Din Abdullah Al-Mahbashi

6 – Judge / Ali Suleiman Ali

7 – Judge / Mohammed Abdullah Mohammed Al-Salmi

8 – Judge / Halla Sultan Ameen al-Qershi

9 – Judge / Mohammed Mohammed Ahmed Al-Qadi

The Judicial Council submitted the list of 30 judges and prosecution members to the House of Representatives to choose 15 of them to be submitted to the President to choose 9, but the House of Representatives disagreed on the list, so they submitted the list including all the names to the President.

On November 13, 2013 Alawla newspaper published on its front page a story in a bold red title says the candidate judges for the Supreme Committee for Elections, who are officers, affiliated to Al-eslah, and supporters of Saleh and Mohsen. It also published on page 3 a report by Judge Abdul-Wahab Qatran stating "President Hadi will reconstitute the Supreme Committee for Elections sharing between the parties to the conflict: It says:

The Gulf initiative, which is considered as a constitutional declaration from which the President and the reconciliation government derive their legitimacy, literally confirmed in the second item of the initiative: (the agreement meets the aspirations of the Yemeni people for change and reform).

The mechanism of implementing the initiative, Part III, paragraph (10) of item (b) demanded: (…. the candidates – the Ministers – must be of a high degree of integrity and commitment to human rights and international humanitarian law), as confirmed by the text of paragraph ( 15) item (c) that the president ensures the government's performance in an orderly manner, including the local administration, according to the principles of the good governance, the rule of law, human rights, transparency and accountability. The item (d) of the same paragraph confirms that the President and the government are obligated to supervise the management of all financial aspects of the state and ensuring full transparency and accountability..

The initiative emphasized the principles of the democratic good governance, of which the most important pillars are the transparency and clarity, so that every citizen has the right to know the candidates for the public office posts including the posts of the judiciary, and to transparently know their biographies, as well as knowing the standards that the authority applied to choose them and how they gave preponderance to some candidates to the others, where in the democratic countries the public opinion is informed everything about this across different audio-visual and readable media with utmost degree of transparency.

From that standpoint the names of the nominated judges for the membership of the Supreme Committee for Elections were published. those judges were nominated by the Supreme Judicial Council and the House of Representatives approved and referred the names to the President to choose nine of them noting that those who have a sign in front of their names saying that they worked or are working in the courts or specialized prosecutors (courts of appeal – state security courts) are considered as manageable and close to the circles of the former and current regime, and close to the intelligence..

With our reservation on describing who works in the public prosecution, and were nominated, as judges because they are not judges according to the international standards, but members of the public prosecution in the case that the public prosecution is an agent for the community, and the prosecutors are agents of the Attorney General and their mission is to bring the criminal proceedings, to represent the public prosecution in courts against the defendants, and to represent the juveniles. Therefore the prosecutor member, in the records of the prosecution and the judiciary is called the chief prosecutor. Only those who work in the courts and pass judgments in different disputes are called judges, and what is circulated recently calling the prosecutors as judges, is a deliberate action of mistaking, overlapping terms of references and corrupting the judiciary..

Details of the work of each judge, his province and his political affiliation are provided for clear vision as follows:

This report raised a great argument in the judicial community and the society, as a lot of the judges denied their affiliations and loyalty, and complained of publishing.  Some others threatened to sue the newspaper and the judge who wrote the report.

On 18 November 2012 lawyer /Mohammed Naji Alaw wrote an article for Alawla newspaper entitled "Supreme Committee for Elections:  errors of the nomination standards and their procedural mechanisms", in which he said: "We, in Hood (CSO), issued last week a statement criticizing the thirtieth nomination list of judges and prosecutors who are nominated by the Supreme Judicial Council. In that article, we emphasized on the procedural and objective errors marred this nomination. We supply here an example from the Egyptian experience that inspired the Yemeni experience by choosing the members of the Supreme Committee for Elections of judges rather than of members from the political parties as it was in the past.”

Alaw added: "the selection of members of the Supreme Committee for Elections is one of the most important indicators of the seriousness of the parties of the political process in access to free and fair elections reinforce democracy to establish a stable and balanced political life contributing in establishing the civil society and the state of institutions.

Therefore, the question of choosing the members to form the Committee actually gives an indication of the extent to which the Committee is independent, strong and able to make decisions and to what extent it possesses the validity delegated by the Constitution and the law.

Therefore, the members selected should be reliable by the nation and acceptable and respectable by different political trends in order to succeed in their mission. They must be also known on the national level by expertise and good reputation.

 Reviewing the list of the candidates for membership of the Committee, we note that they did not take into account any of those standards, including:

Firstly: in terms of judicial degree, seniority and experience:

A number of judges, who were nominated, do not meet the legal terms in terms of judicial degree, seniority and professional experience in terms of:

1 – Lack of commitment to the legal terms of mandating that requires mandating from the superior judicial degrees to the junior ones as needed so that no degree less than an appellate court judge.

2 – Lack of respect for seniority as a legal principle and a judicial tradition no less stringent than the seniority tradition used in the armed forces. The list included judges who were promoted to the Supreme Court just few weeks ago by passing the seniority grades (Vice-President of Supreme Court and members of the Supreme Court) who spent more than 10 years in the Supreme Court.

3 – Not taking into account the experience and professionalism, where it was supposed to attach reports on the professional competence from the Judicial Inspection files to evaluate the validity of the candidates by the House of Representatives and the President of the Republic on the basis of clear and reliable standards.

Secondly: members of the prosecution belong to the executive authority:

A number of members of the public prosecution were included in the list though they do not meet the legal requirements in terms of:

1 – Judicial description, where the text of the Constitution and the law states that the public prosecution is a branch of the judiciary bodies like the forensic body and Certification authority, the Land Registry Service and the judicial police, etc..

2 – Lack of independence, where the prosecutors are subjected to the presidential sequence through their subordination to the Minister of Justice in management and oversight, and its subordination to the Attorney General in work as his agents in the rule of law carrying out his instructions and decisions under the supervision of the Minister of Justice.

3 – Lack of neutrality conditions, where the prosecutor’s job is to investigate, charge and demonstrate the accusation, but not working as a judge. It is a behavior of subordination to the presidency. A behavior they loved and psychologically it makes their supposed independence incomplete (subordinate to the Attorney General).

Thirdly: the lack of the scientific Qualification requirements: 

while the law stipulates that the prosecution obtaining only a university degree from the Faculty of Law or the Police College, it is required for the judge to have at least a master degree from the Higher Judicial Institute after a university degree in law, and to serve at least two years as a training period in the courts after graduation.

Fourthly: From a procedural standpoint:

from a procedural standpoint- and it is a legitimate question be directed to the Chairman and members of the Judicial Council- we knew that the President of the Council was absent on vacation spent in the city of Aden, and that the President of the Supreme Court- a member of the Supreme Judicial Council- did not know about the list except from the press where he did not know about convening a meeting of the Council of the Judiciary in this regard that makes this information closer to the truth. And the letter addressed to the speaker of house of the Representatives is signed by the Secretary General of the Judiciary Council.  However, it must be signed by the President of the Council, addressing a parallel authority that is the legislative authority.

We request the Judicial Council to clarify the information has been circulated.

But, the President did not pay these criticisms any attention and he restructured the Supreme Committee for Elections sharing between the two parties of the conflict making no progress as he reappointed six former judges in the Committee, including the chairman. Those judges were appointed by the former president in December 2010 before the Arab Spring revolutions when he wanted to re-produce the legislative authority amid the abstention of the opposition parties.

Hadi added to the members of the committee three judges, one of them belongs to Al-eslah Party who has degree not exceeding head of Court of First Instance, the other is a former police officer, and the third was working in the Ministry of Justice as Administrative employee, then she was awarded by giving her the degree of a judge- in the era of breaking the law. Though she never ever graduated from the Judicial Institute and she neither practiced the judicial work nor issued even a single judgment.

 

If the President was serious, he would return the list of the candidates to the Judicial Council, and he would obligate the Council to choose candidates with competence, experience, seniority and integrity, such as Judge/ Yehya Al-Maori, member of the Supreme Court, who is considered be a reference in the field of elections, Judge/ Abdulmalek Al-jendari, member of the Supreme Court, and Judge/ Hashim Al-Jefri who was nominated but is not selected by the President because he is independent..

 

      On 13 March 2013, the Presidential decision No. (67) for the year 2013 was issued on appointing the following in the Ministry of Justice in the posts set forth opposite their names:

1 – Judge/ Abdulrahman Ahmed Al-shahedi, Chairman of the Technical Bureau.

2 – Judge/ Abdulkarim Ahmed Mohammed Baobad, Undersecretary of ministry of justice, for the sector of Planning and Documentation..

3 – Suleiman Ayed Zaid Al-selwi, Undersecretary of Ministry of justice, for the sector of financial and administrative affairs..

All of them are of one partisan stream- Al-eslah Party. They were selected without being subjected to comparison or standards prescribed by the law. Moreover, one of them is not a judge, but an administrative employee and the head of the technical bureau is a police officer who was the director of the Governorate Security and the former President gave him the judicial degree and appointed him as a member of the Supreme Court violating the Constitution and the law. We brought a lawsuit before the Administrative Court, calling for the abolition of the decision for it is violating the law.

Decisions of the Supreme Judicial Council for the year 2012

      On 2/1/2012 the Judicial Council held its weekly meeting and approved the appointment of two major judges in two Courts Court of First Instance; they are Judge / Ali Mohammed Al-Ghaith president of the Eastern Taiz Court of First Instance, and judge / Ibrahim Saleh Muthana head of the Traffic Court, Taiz.

This decision came in response to the desire of the Minister of Justice and contrary to the law. The purpose of the issuance is the favoritism for Ali Mohammed Al-Ghaith because he is affiliated to Al-eslah  Party (the party of the minister). Though Ibrahim Saleh only spent one year as President of the Court of Eastern Taiz, the minister substitutes Ibrahim with Al-ghaith without any justification.  In addition, the law does not allow transferring a Judge from a Court to another before the passing of three years, but the abuse of power is normal and cannot be resisted or rejected in Yemen.

 

      On July 10, 2012, the Judicial Council issued the movement of transfers for a number of presidents, judges and prosecutors of courts and prosecutions of appeal and Courts of First Instance.

The Al-sharei newspaper, issued on July 10, 2012, published the news of the movement in the first page entitled "new sharing of the judiciary positions"

The newspaper added that "Al-eslah got Specialized Criminal Court and the Commercial Court in Aden and Taiz and GPC got the Commercial Court in Sana'a and Hodeidah" The newspaper confirmed that a number of judges who have had attitudes against Al-eslah were punished and marginalized despite they early joined the youth revolution". Referring to the judges Abdul-Wahab Qatran and Sary Al-Ojaili who were Presidents of two courts then they joined the revolution, so they were sacked from the previous council. Moreover, the current minister and the new council reduce their ranks to partial judges for refusing to share the judiciary positions and for demanding the independence of judiciary..

Amal Al-Basha – human rights activist, president of Al-shaqeq Center for Human Rights and the official speaking of the National Committee for National Dialogue- published an article in several news sites including Yamanat site in mid-July 2012, entitled “Retaliatory techniques in the justice sector” in which she said; “The rebellious young judges Sari Ojaili, Abdul-Wahab Qatran and Ahmad Al-Thabhani, I met them during the revolution, after had joined the revolution since the massacre of the dignity Friday.  They announced joining the revolutionaries in the change square, and from that day they live and interact with the events of the revolution, and declare their revolutionary positions with courage and responsibility and high national spirit by word through different multiple media and for the success of the objectives of the revolution and reform the judiciary institution and clean it of corruption and militarization and enable it to get its independence and efficiency and good administration of justice as one of the most important of the three authorities that were disrupted during the past three decades during which most citizens paid expensive price searching for justice because of tampering with this important sector."

Al-Basha added: " judges Qatran and Al-Ojaili were penalized by reducing their ranks from major judges to ordinary ones, in flagrant violation of the law and of their rights, and by transferring them as a kind of retaliation against them because they are exposing the symbols of corruption and corrupt practices in the field of justice, in particular, and the confiscation of freedoms and the deviations in the path of the revolution and the revolutionary yards."

Al-Basha asked about the motives of the decision saying: "we surprised that Qatran and Al-Ojaili got this unjust penalty in the light of the Reconciliation Government and under the Ministry of Justice and its Minister Morshed Al-Arshany belonging to the ministers of the revolution and his appointment to the government is the share of the opposition (the joint and its partners).

Though they are affiliated to the revolution, they face arbitrary illegal procedure of reducing their ranks from major to ordinary judges and transferring them from their places of work. The question is what about those who are Impartial and independent but not affiliated to the revolution? "

Al-Basha emphasized that "this exclusionary and retaliatory practice, toward the qualified and impartial judges who have revolutionary positions, do not reflect the spirit of the revolution and the sacrifice of the martyrs who scarified their lives for the dream of a new Yemen, Yemen of justice and merit-based opportunity."

 

Al- Basha declared her solidarity saying: "We declare our full solidarity with the two judges, Al-Ojaili and Qatran, and we hope that everyone- independent and affiliated to parties, organizations and opinion makers and the media- will express solidarity, disapproval, rejection and our support to them against the blatant oppression and violation of their rights as judges. In addition, perhaps other judges suffered like them and neither we knew them nor we received complaints from them in the context of limited judicial movement which quickly and exceptionally happened this month. " 

 

      On 09/07/2012 the Supreme Judicial Council at its meeting chaired by the President of the Council, President of the Supreme Court Judge Essam Abdulwahab Al-samawy approved the nomination of 13 judges to the membership of the Supreme Court, whom names were referred to complete the legal procedures to issue the Presidential decision for appointment.

The Supreme Judicial Council approved also to transfer (83) of the heads and judges of the courts of appeal in the secretariat of Sana’a and the other provinces, and referred them to complete the legal procedures to issue the presidential decision on them.

The Council issued a decision No. (75) for the year 2012 to conduct the movement of transfers in some of the courts of first instance included (57) of the heads and the judges of the courts of first instance.

The Council issued a decision No. (76) for the year 2012, agreeing to transfer 20 of the heads of the Prosecution Appeal from Prosecution of Cassation and Prosecution Appeal in the capital city and some provinces referring them to complete the legal procedures to issue a presidential decision.

The Council also issued decision No. (77) for the year 2012 to conduct a movement of transfers for some prosecutors and members of prosecutions primary in the capital and some provinces of the Republic.

The Council approved also the draft of regulations on the rules of honoring members of the judiciary in order to encourage excellent work and outstanding effort in achieving justice, and improving the performance of the institutions of the judiciary, and to encourage the distinct in good achievement, behavior and discipline.

The regulations identified the components of the prize and its levels; the components of the prize for the first level: silver pendant, a certificate of appreciation and a financial reward, three million riyals, while the components of the prize for the second level: cupreous shield, a certificate of appreciation and a financial reward, million riyals. The components of the prize of the third level: bronze medal, a certificate of appreciation and a financial reward, five hundred thousand riyals.

The regulations also identified the principles and criteria of the selection to the award, and the last Article of the Regulations states the publication of the regulations in the Official Gazette.

On 15 October 2012 the council grants Judge/ Essam Al-samawy, the former President of the council, the president of the Supreme Court, Judicial Merit Award!!!!!

Judge/ Al-samawy is known for his loyalty to the former President (Saleh) and that he practiced many violations during his presidency of the Council, so most of the judges called for his dismissal and the appointment of another judge instead through their protests mentioned in details in this report.  But, the new council appointed by the President granted him an award!!!

      On 09/09/2012 the Supreme Judicial Council approves the restructuring of some departments of the Supreme Court..

The Supreme Judicial Council approved, at its weekly meeting held today under the chairmanship of the President of the Council Judge Dr. Ali Nasser Salem, restructuring some departments of the Supreme Court at the suggestion of the President of the Supreme Court and the Minister of Justice

The Council agreed on the nomination of the Dean of the Higher Institute at the suggestion of the Minister of Justice, Chairman of the council of the Higher Judicial Institute, and referred the subject to the concerned authorities to complete the legal procedures.

      On Monday, 1/10/2012 the Supreme Judicial Council, in its weekly meeting today, chaired by the President of the Council, Dr. Ali Nasser Salem approved granting the (76) graduates of the Higher Judicial Institute, the seventeenth batch, the degree of prosecutor general (b) based on the nomination of Minister Justice.

The Council instructed the Minister of Justice to complete the procedures for the issuance of the presidential decision granting them the degree in accordance with the law. The Council also mandated the Attorney General and Minister of Justice to raise the proposal of distribute them on the Public Prosecutions in the coming session on the grounds that the prosecution is a field which accommodates the members of the judiciary..

This decision is contrary to law as we will discuss it in details later in this report. The graduates complained of it as well.

The council discussed the petition submitted by some of the graduates of the seventeenth batch of the Higher Judicial Institute chosen to work in the Public Prosecution. After an extensive discussion, the Council confirmed its previous decision on the grounds that the Public Prosecution is a gateway to enter into the jobs of the judiciary after graduating from the institute.

The Council also approved the formation of a committee to prepare a draft of regulations with standards to employ the graduates of the Higher Institute of the Judiciary in jobs of the judiciary.

      On 23/10/2012 the Supreme Judicial Council approves the nomination of 30 judges of the Supreme Committee for Elections

The Supreme Judicial Council held an extraordinary meeting chaired by President of the Supreme Judicial Council Judge Dr. Ali Nasser Salem under the guidance of the President Abed Rabbo Mansour Hadi!!!!

It approved the nomination of 30 judges of the judges mentioned for membership of the Supreme Committee for Elections according to alphabetical order in the Council decision..

      All the positions and judicial appointments have been distributed according to partisan criteria based on sharing and quotas between the parties of the conflict. The political parties have signed minutes of an agreement, according to what has been published in Al-awla newspaper issued on Tuesday, September 25, 2012 issue number (529) in the third page, states the mechanism of the JMP for sharing the governmental positions approved by the Supreme Council of the JMP.

 

The second Paragraph of the mechanism states that "sharing is limited to the political jobs (according to the Yemeni standards- Deputy Minister – Undersecretary of the Ministry – the judges – the bodies and institutions, governors, ambassadors and the like") in other words, the political parties that are included in the JMP block confirmed that the jobs of the judiciary are subjected to sharing and quotas on the basis of party affiliation resulting in sharing the jobs of the judiciary between the parties of the conflict- the GPC- the Party of the former President (Saleh)- and Al-eslah Party (Muslim Brotherhood) supported by Gen. Ali Mohsen Al-ahmar.

 SFR published lists exposing the sharing in the jobs of the judiciary.

These lists were published in several newspapers and websites including "Braqesh Net" as follows:

 

Salvation Front of the Revolution (SFR) warns of sharing the judiciary positions, and publishes the names of these positions:

SFR accused what it called "the political powerful forces" of sharing the positions of the judiciary calling for the rejection of quotas and sharing of the institutions of the judiciary.

It declared in a statement that the process of quotas and sharing of important positions in the ministries, institutions and government bodies among the opponents of the political reconciliation and the influential forces aims to complete the control, by sharing, all aspects of civil and military facilities of which the most important is the sharing of the judicial system.

It pointed out that the process of sharing and quotas put the country on the brink of conflict and perhaps a war killing all the aspirations of the people. It reveals list of the names of those judicial positions and their supporters of members and parties.

 Closely examine the lists, we find that Ali Mohsen and his party obtained the lion's share, followed by of former President and his party.

      At the beginning of April 2013, the Minister of Justice issued an instruction to judge from his party to head the Court of Appeal in Thamar and he is on the way to issue three decisions to three heads of the courts of appeal from his party, and after a judicial movement that will be issued in the beginning of July the judiciary will be politicized.

 

      This step is to preempt from Al-eslah Party to control and resolve the outcome of the upcoming elections through the judiciary if they were not so lucky over the Ballot boxes.

 

 

Decisions of the Minister of Justice

The Minister of Justice after receiving the ministry, issued some decisions to appoint general managers from his Party (al-eslah) and to exclude the former ones.. They are the purchasing manager, account manager, head of the budget and the general manager of the commercial division in Hodeidah and it was published in various news media. Those decisions contested before the Administrative Court and the Court still to consider the appeals..

Judge Abdulwahab Qatran published some of those decisions and irregularities in Al-sharei newspaper issued on Sunday 10 June 2012, issue no.  (243) in an article entitled "the excesses of Al-eslah in the judiciary," he summarized some of them as follows: 

1.      The Minister of Justice called for Sheikh Mohammed Sadiq Al-moles, a preacher and imam of a mosque who neither he knows in judiciary nor he served in any judicial office, although he graduated from the Higher Judicial Institute. He is a radical Salafi banning democracy and he stood against the law that defines marriage of young girls. He is anti-era. an interview with him was published in Aljomhoria newspaper few weeks ago that reveals the man’s deceitful mentality in the distant past when he was receiving his salary from the judiciary though he cut off from work for more than ten years. The minister also called judge Razaz who is also cut off from work, and he cannot formulate any court ruling. The minister, then, gave them an appointment with the Chairman of the judicial council, and supported them saying that they were working in charity work, (they were busy working with Al-eslah Party and its Islamic charitable association and its banks). Al-moles was appointed a member of the faculty at the judicial Institute and Razaz was appointed as a member of the Judicial Inspection Authority.

2.      He appointed judge Al-Sharabi as the adviser to the Minister, later it became clear that he graduated from the Faculty of Commerce and that he was the Director of Personnel Affairs and Director of Finance.

3.      He appointed Al-shobaty the Registrar of documentation in the Northern Court in the Secretariat of Sana’a despite the fact that the other candidates were better than him. The only advantage he has is that he is affiliated to Al-eslah and that he is the nephew of the Control Manager.

 

4.      He sent some of his party members to study in Saudi Arabia, in the Saudi judicial institute despite the absence of a joint cooperation between the two countries and they did not pass it on the technical office to type it and complete the procedures as the work is secretly done under the supervision of Al-arashani, the minister’s son-in-law and his private secretary. 

5.      He sent some of Al-eslah affiliate members to Morocco to study in the Moroccan Judicial Institute by explicit orders.

6.      Omar Al-arashani, the minister’s son-in-law was transferred from the Ministry of Education to the Ministry of Justice, where he became the boss, and the son of the minister became the High Commissioner in the Ministry of Justice. 

7.      He types the decisions at home on the pretext that the staff of the technical office are not working and that he only submits the decision to them, but he keeps the priorities with him in order to preserve confidentiality.

8.      He constituted a committee of the Judicial Inspection for the preparation of a judicial movement under the chairmanship of the chairman of the Inspection and the membership of Judge Mohammed Taher al-Husseini- member of the Inspection and affiliated to the brotherhood, brother-in-law of Sheikh Abdul Majid al-Zindani. Judge Aboraihy, Judge Ba-obad, and Judge Dadan- all from the brotherhood- are also members in the movement that is formed to search for those who are not affiliated to the Brotherhood in the courts, at least, to appoint the heads of the important courts from their affiliated members. Al-seslah does not focus on the courts that they know they would win the next election in the electoral district of their competence, but rather they focus on those they fear that they may be fails in their electoral districts for which they will appoint judges ensuring their judgments in their favor in the electoral appeals.

      On 13 November, 2/2012, the Minister of Justice issued a decision to form a committee of the career recycling to the ministry office staff and all the courts of the Republic..

Ministry of Justice issued decision today on the formation of the career recycling committee, headed by Undersecretary for Financial and Administrative Affairs, and the membership of the adviser to the ministry of human development and seven general managers of public administrations.

The general manager of public relations and media at the Ministry of Justice, Khalid Mohammed Aldbes, expresses to Saba news agency that the decision of the Minister of Justice Judge Morshed Al-arashani included that the Committee starts preparing for the requirements of career recycling in accordance to the rules and mechanisms established by the law and its implementing regulations, and communicate with the Civil Service to request the forms and instructions and the technical and advisory support providing it with reports determined in the law and its implementing regulations.

He added that the decision puts a mechanism for the application of the law to the staff of the ministry office  and all courts of the Republic and submit it to the Minister of Justice for approval, as well as submitting the suggestions on the staff included in the career recycling accompanied by the data, the justification and rationale for each case in accordance with the conditions and regulations stated in the law and its implementing regulations and relevant regulations for directing, including necessary action.

He pointed out that the decision called upon the committee to refer the obstacles that hinder the implementation to take effective treatments in the light of the laws and relevant regulations, and that the Committee has the right to use those who are experienced and competent in order to accomplish what they are mandated to do submitting the results of their work within sixty days from the date of issuance of the decision

Minister of Justice issued a decision appointing a number of the Registrars of Documentation..

Judicial sources confirmed that the decision of the Minister of Justice to form a committee of career recycling was motivated by partisan aims to exclude those who are not affiliated to Al-eslah Party and replace their affiliated members instead of them. He began to adopt such a policy in appointing the heads of the departments in the Ministry of Justice from Al-eslah Party.

 

      Minister of Justice, judge/ Morshed Al-arashani, issued the Ministerial decision No. (22) for the year 2012 appointing a  number of the Registrars in a number of Courts of First Instance as follows: –

•        Hamid Ahmed Ghalib, the Registrar of Documentation in Al-shaghadra Court of First Instance. Hamdi Ali Effendi Al-badawy Al-aslami the Registrar of Documentation in Aslam Court for First Instance.

•        Mohammed Saleh Abdullah al-Khaiwani pres the Registrar of Documentation in Kahlan Al-sharaf Court for First Instance.

•        Mohamed Ali Ahmed Al-Tayeb as the Registrar of Documentation in Harad Court for First Inistance.

•        Mohamed Hussein Mohsen Alqureiy the Registrar of Documentation in Beihan Court for First Inistance.

•        Ameen Ismail Hassan Al-madany, the Registrar of Documentation in Washa Court of First Inistance.

•        Mohamed Ahmed Alnwairh as the Registrar of Documentation Al-khabt Court for First Inistance. Mohamed Masood Ahmed Ombushl the Registrar of Documentation in Modia Court for First Instance.

•        Ibrahim Ahmed Zayla'i khlufa the Registrar of Documentation in MIDI Court of First Inistance.

Most of the appointees belonged to Al-eslah Party, the minister’s party.

Shutting the gate of the Ministry of Justice in front of the litigants and lawyers

Saturday: 09/15/2012 Minister of Justice judge/ Morshed Al-arashani claimed that he received a threatening letter for a physical liquidation by unknown assailants on Friday.

A source in the minister's office said that "unknown threw a letter at the gate of the minister’s house in late Friday night and then fled. The letter contains a threat to liquidate the minister and blow up his house.

A source in the Minister’s office pointed out that these threats came after the Minister had launched statements during his participation in the Conference of recovering the looted money, which was attended by representatives from the countries of the Arab Spring, and in which he emphasized the determination of the NRG to recover the looted money during the past period and the determination to fight corruption.

The source said that this work comes within the framework of a series of threats and attempts of assassinations of members of the NRG, the latest of which was the assassination attempt on the defense minister.

The source condemned these terrorist acts aimed to discourage the Reconciliation Government to continue its role in the fight against terrorism and corruption, emphasizing that such behavior will not dissuade the minister and the reconciliation government; rather it will increase their strength and determination to carry out their national and functional duties whatever it takes of sacrifices."

Although everyone condemn any assassination threats as a barbaric behavior, whether the threat is directed against Dr. Yassin Said Numan, Secretary General of the Socialist party or against judge/ Al-arashani, Minister of Justice..

However, we are surprised of the way in which the official bodies and political parties dealt with those incidents with double standards. while they downplayed the significance of what the secretary general of the Socialist party was subjected to and they did their best to prove that the incident was accidental and groundless for some others, they mobilized all their energies, all their official and not official capabilities, their private and public media and the official media to condemn the threat that Al-arashani was subjected to.

moreover, the Minister of Justice closed the joint gates between the Ministry of Justice and the Supreme Court and the Judicial Council, and prevented the lawyers and litigants of entering the buildings for two weeks, causing obstruction of dealings and interests of citizens and disable the traffic in Al-adl street due to congestion caused by closing the courtyard of the ministry in front of the cars of the judges and the staff.

The Minister of Justice was moving with three cars full of gunmen from the front and behind his car in a frivolous spending of funds and cars of the Ministry of Justice, although the pretext only was a letter thrown in front of his house as it was published in the media..

So what if the threat reached the level of shooting at the minister’s head, as happened to Dr. Yassin.

But who dares to speak; neither the Chairman of the Judicial Council nor the Head of the Supreme Court are able to do so, both are afraid because the Minister of Justice is logistically supported by Maj. Gen. Mohsen the actual president of the country.

because of the closure of the gate of the Ministry of Justice by the minister in front of the lawyers, and because of his non-responsiveness to their complaints about assaults that affect some lawyers by some of the judges and his answer to the lawyers that he does not admit the law, the lawyers syndicate complained and called its members to protest and took out marches to the President’s house demanding the dismissal of the Minister of Justice.

Yemeni lawyers syndicate, Sana’a branch, regulated a protest and a march demanding the resignation of the Minister of Justice on Monday, 8/10/2012 and the news was published in various news media.

 The Arab Lawyers Union also called President of the Republic of Yemen for compulsory application of the law and dismissal of minister of justice.

      At the beginning of October, the Minister of Justice purchased 86 cars cost $ 600 million by a direct order without a tender. That was a clear violation of the law of tenders. He also appointed his son-in-law his private secretary and disbursed him a car..

      The news has been published in various media including Al-masar weekly newspaper issued on Oct. 16 2012 Issue (42) on its front page in bold red headline saying that "Justice Minister” appointed his son-in-law as his private secretary and gave him a car of the (86) cars, while his doors are still closed in the face of the citizens, and that he bought 86 cars by direct order without a tender. In addition, his own car costs 22 million riyals, and he seized four other cars..

 

      Al-montasaf weekly newspaper confirmed the same published news in its issue (21) issued on Tuesday, December 3, 2012 on the front page and titled "when Justice is requested from a clerk of Ali Mohsen, the minister bought 86 cars without a tender, but rather with a direct order.. etc" the newspaper gave details in the fourth page about the minister’s violations and encroachment, which are so many to be mentioned here. On his part, the Minister of Justice did not deny the news, but he confirmed the events via a statement published in Saba news agency saying that he will distribute the cars on judges living in distant areas. Later he distributed the cars on the judges who are allied to him and his party and judges who are not worthy, but because they have sensitive issues related to the regime..

He also distributed cars in mid-February 2013, on a number of the heads of Courts of First Instance while he deprived others who are working in distant areas. He distributed the cars on partisan, regional and sectarian criteria.

towards the end of December, he distributed cars for all departmental directors and general managers who belong to his party and gave Prado car 2013 to the purchases manager, who was appointed in violation of the law because he belongs to his party, where he gave him a car despite the ruling of the Administrative Court of the Secretariat on January 20, 2013 to abolish the decision of the Minister of Justice regarding appointing Saleem Al-darwany as Purchases Manager because of the illegality of the decision.

* Mid-February 2013, the Minister of Justice visited Saudi Arabia and met with his counterpart Saudi Minister and discussed with him the prospects of cooperation between the two countries and how to get benefit from the Kingdom experiences, such as sending affiliated members of his party and his group to study at the Saudi Judicial Institute in addition to the previously sent last year to make the Yemeni judiciary follows their Salafi and Wahhabi approach.

* On 13 March 2013 the Yemeni Minister of Justice visited Turkey for a week where he discussed with his Turkish counterpart how to activate the judicial cooperation, and signed an agreement in this visit aimed to make the Yemeni judiciary follows the brotherhood's approach through sending members from the brotherhood to study in Turkey.

Higher Judicial Institute

Minister of Justice, Morshed Alarahany and his group, focused on the Higher Judicial Institute since his appointment, because the Institute is the Gate of the Judiciary, and according to the law the Institute follows the Minister of Justice. So he sought to set the dean of the Institute from his party, and he is ready to pass the agenda of the party through appending its affiliated members to the institute.

•        Tuesday, 06 November 2012 the Presidential decision No. (53) for the year 2012 was issued on the appointment of Dr. Abdullah Abdullah Al-olofy as the dean of the Higher Institute of the Judiciary.

 

Al-olofy was working as Attorney General for 13 years and was sacked by the former president after the events of the massacre of Friday of dignity. It is known that he belongs to the security institution and not a judge, but rather he changed his allegiance from the former president to Major General Mohsen and his Party since the outbreak of the youth revolution in early 2011. The judges and the prosecutors called for his dismissal at the beginning of the year 2011. Being familiar with great secrets, he was imposed by Major General Mohsen on the new President, and the Supreme Judicial Council nominated him to work as Dean of the Higher Judicial Institute.  Many articles by some of the judges were published later warning of re-producing who have been dismissed in new positions. Judge Abdul-Wahab Qatran published a long article in Al-sharei newspaper on Aug. 13, entitled “President Hadi will appoint a dean of the Judicial Institute imposed by Ali Mohsen and the radical powers.”

From the first moment Al-olofy applied the agenda of his group. He appointed Sheikh Mohammed Sadiq Al-moles a faculty member in the Institute since the beginning of the year on his way to set four teachers from Al-Iman University in the Institute. It is known that Al-moles was a professor at Al-Iman University. He is a radical Salafi who is banning democracy. He published a range of brochures where he accused some parties and their leaders of fidelity.  he separated the female students from the male students at the Judicial Institute because, from his point of view, mixing in the lecture halls is forbidden promising the students at the Higher Institute of the coming of the Islamic Caliphate saying that the work of women in the judiciary is a slip that should not be repeated..

      Al-olofy, in coordination with the Minister of Justice, reduced the acceptance average from very good to good from the beginning of this year. He also reduced the average of admission of students to the institute and raised the institute capacity from 100 to 300 students for the first time since its establishment in the early eighties for the purpose of including the members of the brotherhood.

The Dean of the Higher Judicial Institute mandated Dr. Mohammed al-Shami and Dr. Abdulmomen Shoja aldeen to study the curriculum of Al-Iman University, so that, he and the Minister of Justice would depend on their report as an excuse to include the graduates of Al-Iman University in the Judicial Institute. they wrote a report that the curriculum of Al-Iman University is convenient to the standards and conditions for admission to the Institute and that its curriculum is acceptable. From this year they will accept students in the Institute from the University that follows the Party of the Minister of Justice, so the Yemeni Judiciary will be plagued by judges have nothing to do with the law because they were prepared as mosques speakers and preachers only. The question is: what is their relationship with the Judiciary?  And in the interest of whom is the involvement of extremists in the Institute of the judiciary?

It is true that the Brotherhood previously was a partner of the former regime in coalition governments before and after the ominous war in the summer of 1994 and that the Ministry of Justice was of their share during the coalition government between them and the party of former President Saleh, which participated in the period from 1994 to 1997. Their representative in that government was Dr. Abdul Wahab al-Dailami, Minister of Justice. Al-Daylami is the one who issued a fatwa for violating the South in the war and accusing the people there of fidelity. When he was the Minister of Justice at the time, he did his best to append members of Al-eslah party to the Judiciary through facilitating joining the Higher Institute of the Judiciary. But the Dean of the Institute at the time, judge/ Yehya Malek confronted that behavior in a historical position refusing to involve those who the legal standards do not apply to them in the institute, and he was supported by the former President Saleh for his resistant position, which led to the suspension of the studying in the Higher Judicial Institute for six years. The institute resumed accepting students from the year 2003 and the acceptance criteria where strict and somewhat objective, which led to the limitation of the number of sympathizers of Al-eslah party who estimated with 10% in parallel with a heavy presence of judges who are sympathizers with the Southern left or Al-hothy movement.

According to the GCC initiative, the Ministry of Justice was of the share of Al-eslah Party. Judge/ Al-arashani became the Minister of Justice.  He is an ideological person graduated from a wahhabi University in Saudi Arabia and he was a clerk working with Ali Mohsen. He initiated to strengthen the influence of Al-eslah within the judiciary working at an accelerated pace to set his supporters in sensitive positions. As the judicial revolution that was sparked by youth judges and lasted for four months from the beginning of January 2012 to the end of March of the same year, demanded to enable judges of electing the Supreme Judicial Council of the General Assembly of the judges, the Judicial Council was formed according to the base of quotas between Al-eslah Party and its former allies and current opponents. Accordingly, the Secretary-General of the Judicial Council, the most important position in the judiciary after the Minister of Justice, was of its share according to the law of the judiciary. Other important positions were given to judges affiliated to the former president, such as the Attorney General and the President of the Supreme Court, and other remaining marginal positions were occupied by judges affiliated to the current president. Minister of Justice also prepared a judicial movement at the beginning of July 2012 based on partisan criteria sharing between the two parties of the conflict where the judges affiliated to the hashemite political movement were excluded from their positions and the appointment of judges from the Brotherhood and their supporters in all departments of the Judiciary retaining those they guaranteed their loyalty though they are not affiliated members in the Brotherhood.

There is another serious step, which was taken on the Higher Judicial Institute on which they focused from the beginning. Therefore, the most important gain for them was the dismissal of the former Dean of the Higher Institute of the Judiciary Yehia Al-Jerafy and the appointment of a new dean of their supporters in September 2012, Brigadier General Dr. Abdullah Al-Olofy who remained the Attorney General for 13 years. Accordingly, Al-Olofy appointed Sheikh Mohammed Sadiq Amoles member of the faculty at the Institute of the judiciary, although he is not an academic but a Salafi sheikh and a leading member from Al-eslah Party who is teaching at the Al-iman University. There is also news that the Minister of Justice arranges for the appointment of teachers from Al-iman University within the faculty members of the Higher Institute of the Judiciary following the policy of Al-eslah party and its members.

The Minister of Justice announced that the average of acceptance at the Institute for this year will be reduced from very good to good, so we are afraid that the greatest possible number of students from Al-Iman University will be transferred to the judicial institute. In the same direction and since the beginning of this year the Minister of Justice excluded the graduates of the Higher Judicial Institute, where the supporters of Al-eslah party are less than those in Al-Iman university, by appointing them in the public prosecutor rather in the courts, in a precedent that is the first of its kind since the Institute was established in the mid-eighties. For this purpose, the ministry as well as the Judicial Council alleged that the prosecution is the gate of the Judiciary in violation of the Law of the judiciary that excludes those who are appointed in the prosecution from the condition of obtaining a certificate of the Higher Judicial Institute. Therefore, those who have succeeded and graduated from the institute have to prove their competence in the prosecution to be transferred to the judiciary and it is feared that they would be chosen selectively so that only those who prove their loyalty and obey the orders of the Supreme Judicial Council and the Ministry of Justice would be transferred to the Judiciary. Accordingly, it is clear that the appointment of graduates of the Institute in the prosecution has several benefits: On the one hand, they are brought up on the dependency and implement orders of their bosses in the prosecution that would kill any tendency of independence they have, and then that facilitates the selection of the most loyal and obedient, on the other hand the General Prosecution would be a means to get rid of those who are classified as Hothies, leftists or rebels. What makes the offense is more serious is that the appointment of these happened despite the fact that the courts are currently suffering from dire need of judges.

Beyond that, in parallel to shutting the door of the judiciary in the face of the graduated judges, it's easy to achieve an urgently bid to open it in front of prosecutors are appointed from outside the Institute and are often chosen from the soldiers and informants in a manner that may pave the way for the including a large number of those who are loyal to Al-eslah Party in an  explicit violation of the Judicial Authority Law, which requires a certificate of the Higher Institute of the Judiciary after a university degree to be appointed in the courts. It has been recently propagated to nominate members of the prosecution as judges while they are not judges but prosecutors acting for the Attorney General the responsible for bringing public lawsuits and they are subordinated to their presidents and follow their orders. They are closer to the executive authority than to the judicial authority and most of them are soldiers and informants.

so, the Current head of the Institute, who had served as attorney general after he was a military showing a tendency to strengthen the prosecution and the police as his policy deliberately mixes between the prosecution and the courts and find some kind of overlapping of duties in a way contributed to that the Public Prosecution and its soldiers control the courts in the last two years.

Therefore, the graduates of the Higher Judicial Institute carried out a protest in front of the Judicial Council last month. But the Council did not pay any attention to their grievances and fair demands. So they filed a lawsuit against the Supreme Judicial Council before the Administrative Service (AS) demanding to stop the decision of distributing them to the prosecution. But the AS that was constituted by the decision of the Minister of Justice in consultation with the head of the Supreme Court dismissed the lawsuit filed by the alumni. This AS has a long history of political subordination to the Minister of Justice and the Judicial Council, and it is closer to the disciplinary board for judges rather than being a fortress of freedom to protect honorable judges. In addition, its history is full of issuing unfair political judgments for the benefit of the Minister of Justice and the Judicial Council. So, it is not reliable in protecting the rights and freedoms as long as its judges are only employees.

In the same context, high symbolic trends in the management of the Institute are recorded, particularly in relation to the female judges. The female students were obligated to wear the niqab at the Institute of Judiciary this year, as a beginning of the Islamization of judges’ costume on the Wahhabi way. The Salafi and Eslahi leader Mohammad Sadiq Al-moles separated the male students from the female students in his lectures delivered in the Higher Judicial Institute, starting on Monday, January 28, 2012. Students at the Higher Judicial Institute confirmed when they met the author of these lines that the students receive Al-moles’ lectures in a hall, and the female students in another hall, where a female lecturer from Al-Iman University gives the same lectures. Other students pointed out that they objected to what Al-moles did, but he replied: "This is Islam." Al-moles was repeating earlier that the entry of women in the Judiciary is a slip that should not be repeated, as he separated between male and female students in the halls preventing any male student from approaching to the chairs on which the female students are sitting.

Unfortunately, despite the discomfort of the young judges of this reality, they remain silent. The question being asked today: What's next? What will happen tomorrow when they will graduate from the Institute? Will the Ministry of Justice and the Supreme Judicial Council put barriers between the female judges and the litigants, or they will judge in issues where the witnesses and the litigants are female only, leaving the lawsuits in which males are found?

It is worth mentioning that the curricula of the Higher Judicial Institute are traditional and do not fit with the times and do not qualify the learners modern legal qualification because the administration of the Institute deliberately are not teaching the International legitimacy particularly the conventions, the declarations and the protocols on human rights and citizenship approved by the international community and ratified by Yemen. In addition, they do not teach students the basic principles of the independence of judicial authority approved by the United Nations because the administration of the Institute is a security administration that brings up the students on dependency, fear and obeying the orders of superiors not on independence and courage.

 

Judicial Forum

Forum judiciary is still in clinical death since 1996, i.e since the former president imposed the amending the Statute that the head of the Supreme Court is the President of the Forum, and since then the judges lost their syndicate and they were unable to recover it because the President of the Supreme Court is the Chairman of the Forum and the Minister of Justice is the Secretary General of the Forum. To this moment, the judges cannot elect a president and members of the administrative board of the forum because of the politicization of the judiciary and the subordination of judges to the executive authority.

As a result, the frequency of attacks and violations on judges and prosecutors by the elders and influential members of the House of Representatives and managers and security managers districts increased and ranged from threats and kidnappings, shootings and killings, intermittency, and looting means of transportations, in the silence of the leadership of the judiciary and the reluctance of the Interior to provide protection for judges and prosecutors and the headquarters of the courts, but rather diluting the issues and failure to arrest the culprits so that it amounted to attacks last month, more than 30 cases of assault according the judicial statistics published in the Al-qadaya newspaper last month, forcing the judges in the provinces of Sana'a, Ibb, Amran and Hodeidah to suspend their work and the work stoppage..

As a result of the dilution of the issues before the security apparatus, the aggressors are not brought to trial but rather the assault cases ended with the tribal arbitration and the slaughter of a bull in the court building by the aggressor, as happened last month in the court of public funds in the Secretariat and the court of west Ibb.

 

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