Yemen’s “Political Isolation” Proposal: The Road to Constitutional Ruin?

2014-01-16    |   

Yemen’s “Political Isolation” Proposal: The Road to Constitutional Ruin?

Yemen has recently faced a controversy over political isolation that surfaced in other Arab countries witnessing mass uprisings. An intense battle over the issue has been raging within the Good Governance Working Group of the comprehensive National Dialogue Conference (NDC).

This battle followed a proposal by the Revolution Youth Movement in October of 2013 for a new constitutional article that provides for the political isolation and the lifting of immunity of any individual granted immunity under Resolution No. 1 of 2012. The latter resolution was issued in accordance with the Gulf Cooperation Council (GCC) initiative.

Since the proposal was submitted for voting and rejected by the General People's Congress Party (GPCP- the former Yemeni ruling party, which continues to be headed by former President Ali Abdullah Saleh), debate over the matter has continued to escalate. The debate became even more heated after Saleh’s party threatened to withdraw from the NDC.

Thus, the proposed article has further complicated the prospects of success for the dialogue conference. The conference is already witnessing serious tensions regarding a number of issues on its agenda, namely, the question of South Yemen and the issue of transitional justice. Such tensions could lead to the failure of the conference, especially that it has overstayed its mandated period of convening by two months.

Other Arab Spring countries have passed similar laws to prevent the return of “remnants of toppled regimes”. In the case of Yemen, seeking such a law has entrenched the prolonged debate over the immunity granted to former President Ali Abdullah Saleh. Representatives of the revolutionary youth believe that the proposal would neutralize Saleh’s influence over the course of events in Yemen. This is particularly so since the GPCP currently holds half of the portfolios in government, and dominates the seats of parliament and the Shura Council.

Majdi al-Naqib, a revolutionary youth representative, explicitly said that “the article on the political isolation of the toppled president and his aides and lifting their immunity is the most important article we sought to pass through the National Dialogue Conference;  yet the article was abolished as a result of the united effort and resilience of the Good Governance Working Group”. Al-Naqib added:  “If we do not have this article passed, there shall be no good in us and our participation in the National Dialogue Conference will have no value whatsoever”.

The proposal was approved by a supermajority within the working group, with GPCP as the sole objecting party. The proposal thus became operational in accordance with the bylaw of the NDC.  

However, the serious political controversy associated with it prompted the conciliation committee to ask the Good Governance Working Group to present an alternative proposal. Afterwards, the Good Governance Working Group replaced the previous text with a new one which stipulates a number of conditions for people assuming high-level positions in the state and in political parties.

As such, the task changed from direct political isolation to an implicit political isolation that precludes certain personalities from holding senior positions in state agencies. Such a shift seems to be tailored to the case of Ali Abdullah Saleh and his son Ahmed, who was the commander of the Yemeni Republican Guard before this military formation was abolished. Ahmed Saleh was later appointed ambassador to the United Arab Emirates by interim President Abd Rabbuh Mansur al-Hadi.

The new text stipulates that several terms and conditions must be met by those nominated for any of the following positions: president of the Yemeni Republic, the prime minister, presidents of legislative councils, heads of political parties and organizations, secretaries general, and all leadership and political positions in government. The most important conditions that a nominee must meet, and those which are of concern to us here, are as follows:

The nominee “should not have assumed the position of president of the Republic, parliament speaker, president of the Shura Council, or prime minister for two terms in office”.

The nominee “should not have been spared a judicial conviction for any violations due to legal restrictions impeding the judiciary”.

The nominee “should not have been involved in flagrant violations of human rights and of International Humanitarian Law in accordance with international charters, conventions, and laws (war crimes, genocide, crimes against humanity)”.

The nominee “should not be a member of the military or security establishment unless he/she has left the position in either establishment at least 10 years prior”.

The nominee “should be qualified and known for integrity, efficiency, and good conduct”.

It is important to note that the restrictions to nomination under this article apply not only to leadership positions in state offices, but also to positions assumed within political party structures.

A Legally Distorted Political Proposal

The contents of this constitutional proposal clearly reflect a deeply confused understanding of the​​ law and the constitutional drafting process. The proposal has many contradictions and it includes several articles already stated in the laws of the Republic of Yemen.

Consider the fourth restriction stated above regarding military service or membership. Although the Yemeni legislation prohibits combining political party work and membership in the military or security establishments, a legal text has been added to the existing law to specify a time limit for this restriction.  

According to the text, the nominee should prove to have left the military or security services at least ten years before the assumption of any political office, whether in the party or the state. This will lead to an unjustified violation of the right of many citizens even though the proposal was actually drafted with the specific aim of preventing the nomination of Ahmed Ali Abdullah Saleh (commander of the dissolved Republican Guard) for presidency.

In addition, the condition that the nominee “should not have assumed the position of president of the Republic, parliament speaker, president of the Shura Council, or prime minister for two terms in office” prohibits those who had assumed presidency from taking over the leadership of any party, or reconsidered running for presidency. Saleh and his son are the target of this legal text, but the article ends up denying the inherent right to assume presidential office by any person who had previously assumed the position of prime minister, parliament speaker or president of the Shura Council.

Furthermore, one of the very loose articles in the proposal is the third one listed above concerning human rights violations. This is a very loose article because such violations can only be measured or verified by virtue of a court order.

There are other articles in the proposal that are formulated in a similar manner and bear no legal significance. One example is the fifth restriction stated above. It is not exactly clear here how “good conduct” can be understood or measured.

The second condition regarding lifting immunity from prosecution is the clearest example of the legal absurdity of this proposal. It is only natural that such immunity shall not be granted under the law. For all citizens are equal before the law, and there shall be no impediments to bringing to justice individuals who violate the law, irrespective of their position or status. Presidential candidates and political party leaders are no exception.

It seems that the proposal seeks to circumvent the immunity law to prevent only Saleh from running for presidency. This reveals exceptional and unreasonable randomness that could lead to an unstable situation. This unconstitutional immunity law could be revoked from the first round at any constitutional court or department regardless of it being described as a sovereign law. For in its current form, it is in effect introducing a constitutional text that explicitly acknowledges the existence of legal restrictions that impede the judiciary from prosecuting any individual.

In short, the Constitution is being used for fraudulent purposes or merely as a tool of political deception by political rivals who would initially grant immunity to one another, and then exploit it to discredit a certain party.

We can certainly see that most articles of the constitutional proposal relate to the terms and conditions of running for presidency. However, all senior positions in the state and leadership positions in political parties have also been addressed in these articles. In other words, there is a strange mix between state public offices and party positions that have different legal circumstances. Moreover, top positions other than the presidency are regulated under different terms in accordance with separate laws and regulations.

Drafting constitutional and legislative law is, in general, a wise and calm practice that depends on abstraction and generalization, and adheres to well-structured and comprehensive legal criteria. Such a practice can never be approached through a discriminatory and fraudulent political process. A quick analysis of this unusual constitutional proposal shows as much. The proposal was presented in a distorted way in light of a political conflict among the disputed parties that signed the GCC initiative. Hence, the National Dialogue Conference does not seem to be the right place for drafting a future constitution for all the Yemeni people.

This article is an edited translation from Arabic.


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