Review of the fifth periodic report of Yemen

1.10The Right to Fair Trial and Equality Before Tribunals (Art. 14)

1.10.1Justice System’s Lack of Institutional Independence

In theory, Yemen's judiciary is independent. Article 149 of Yemen's constitution states that “the Judiciary (authority) is an autonomous authority in its judicial, financial and administrative aspects and the General Prosecution is one of its sub-bodies. The courts shall judge all disputes and crimes. The judges are independent and not subject to any authority, except the law. No other body may interfere in any way in the affairs and procedures of justice. Such interference shall be considered a crime that must be punished by law. A charge regarding such interference cannot be nullified with the passing of time."¹²⁷

In reality, however, Yemen's Judicial Authority Law, which provides further definition of how the judiciary is managed, includes provisions that raise serious questions regarding the independence of the judicial system in the country, since the executive authorities of the State are able to exercise great influence over the judicial system. Thus for example, the president of the Supreme Judicial Council (SJC), which oversees and manages the affairs of the judicial system in Yemen according to its domestic law, is appointed directly by the Yemeni President. In addition, the Minister of Justice sits on the SJC, and his ministry appraises the work and competence of judges, and can affect their promotion and lead to disciplinary actions. As a result, the executive maintains a strong degree of control over the judicial branch.

Alkarama believes that this situation is contrary to the principle of an independent tribunal, as stipulated by article 14(1) of the Covenant. In that regard, the Human Rights Committee, in its General Comment 32¹²⁸, has already stated that “a situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal.”¹²⁹