1During the socio‑political upheavals of 2011, prematurely termed “The Arab Spring,” citizens in Yemen took to the streets to demand justice in a variety of forms. They decried economic injustice, highlighted political injustice, and called for social justice. The concept of justice cuts to the core of issues like equality, rights, redress for grievances, rule of law, and distribution of resources — each of which is essential to the survival of a unified, viable Republic of Yemen. The Arab Spring and its aftermath offered a serious opportunity for an examination of the question of justice and a rare opportunity to engage new thinking on the subject.
2Discussion of justice, then, should have been much in evidence in a process as vital to the political stability of the Yemeni state as the much‑heralded National Dialogue Conference (NDC), organized in 2013 to propose a framework for a transitional government and a structure for the preservation of a unified Yemen. In fact, “transitional justice” was one of the nine issues upon which the NDC specifically focused. Yet as any observer of the NDC would have noted, plenary and working group sessions often devolved into expressions and expositions of historic grievances, or entered into mechanical procedures for revising the constitution or establishing the rules of order for voting.
- 1 This constitution was amended in 1994, to change the composition of the executive branch from a fiv (...)
3Mechanics and process predominated over intellectual and philosophical discussion even when representatives were asked to specify which understanding or theory of justice implicitly guided certain positions: whether the question was phrased using the Arabic word for “theory” (naẓariya), or the word for “ideas” (afkār), NDC representatives generally referred back to sharia as the “source of all Yemeni law,” as enshrined in the Article 3 of the constitution ratified by a unified Yemen in 1991,1 an almost‑certain feature of any future Yemeni constitution as well. Which school of Islamic jurisprudence was not specified. This lack of precision is not entirely surprising, as Yemeni discussions of justice are often oblique, suggesting the concept through direct discussion of law, rights, or honor.
4Various scholars have elucidated streams of thought within Yemeni society, such as tradition, tribalism, and Islam, often touching on the concept of justice, but justice as a structuring term in Yemen, one that orders religious practice or individual thought, is often overlooked by scholars of Yemeni studies as its own focus of research. Such an omission risks an incomplete or inaccurate understanding of an important value system. This article attempts to rectify this by analyzing the conceptualization of justice, in theory and in practice at key moments in Yemeni history and within contemporary Yemeni society. It proposes that the concept of justice is an underlying and unifying thread within disparate discourses and contexts in Yemen, including the Arab Spring protests and (rhetorically, at least) the NDC. It further proposes that the NDC’s lack of clear, practical progress towards the realization of this concept within the Yemeni politico‑economic system has contributed to the nation’s subsequent state of chaos, in which the youth revolution has been doubly marginalized: first, by the political establishment, and lately by the Ḥūthī rebels’ coup against the transition process in January 2015.
5Given the local and regional upheaval and Yemen’s dire political, social and economic crises, a mere four years after the beginning of the revolutionary dynamic may not seem a sufficient or propitious time to pursue an investigation of the concept of justice. Yet it is precisely because Yemen and the surrounding region are in such transition that the opportunity presents itself “to broach the subject of justice and to make theoretical and practical propositions around this question.”2
- 3 Bishara, 2013, p.5.
- 4 “Economics...”, 2008.
6While ideas of justice may be debated or disputed among cultures, justice as a concept has been generally unified at the level of the nation‑state, insofar as it implies some type of equality among citizens and the proper procedural mechanisms to ensure this and redress imbalance.3 Justice as fairness, not mere judicial practice, is centrally related to the rule of law, since legally‑entrenched inequality — for example, in the case of racist laws, or unequal enforcement of otherwise just law — does not promote values that lead a legal system to become more settled, respected or followed. As a result, both the rule of law and any issues that rely on its proper functioning ultimately become contested. The established, settled rule of law is now understood to be a sine qua non precondition for economic development and states’ progress.4 Justice, therefore, is also a necessary precondition for grounding legal stability.
- 5 Cf. for example Rawls, 1987.
7Philosopher John Rawls has drawn on the idea of the social contract to try to reconcile liberty and equality, or “justice as fairness” as a political conception.5 Yemenis seldom use the word “justice” (‘adl/‘adāla), however, when speaking about situations in which fairness or equitableness are at issue. Rather, they often discuss issues that involve analysis of justice by referring to its lack or its opposite. The word ẓulm, technically meaning ‘oppression’, commonly refers to the perceived injustice of an event or personality, rather than to the demerits of an underlying idea or practice. More common are words like corruption (fasād), untrue (ghayr ṣaḥīḥ), wrong (ghalaṭ), lying (kādhibī), unfortunate (maskīn), not good (mish tamām or ghayr jayyid), etc. Vocabulary for redressing perceived injustice in Yemen often employs rights‑based language (ḥaqq), ‘human rights’ (ḥuqūq al‑insān), ‘my right’ or ‘what is mine’ (ḥaqqī) or phrases that emphasize a duty (wājib), perhaps forsaken, or a lack of ‘enforcement’ (tanfīdh).
- 6 Abdalla, 2001, p. 162‑163.
- 7 Ibid, p. 175‑176.
8One potential lack of congruence between dominant “Western theories” and many Yemeni concepts of justice is that the former often focus on conflict between aggrieved parties,6 while in Islamic contexts, ‘justice’ may focus on parties both directly and indirectly involved in the conflict, and on treatment of the situation in all of its concomitant interactions, constituents, rules, etc. — i.e. ‘justice’ may engage the entire community, regardless of their involvement in the conflict.7 The Yemeni phrase ‘adāt wa‑taqālīd, ‘customs and traditions,’ which generally refers to tribal practices, can allude to means of mediating justice and injustice that Western societies might instead refer to as legal matters. Such customs and tradition underlie the prominent legal tradition of customary law in Yemen, ‘urf al‑qabīlī, which Yemenis distinguish from civil law (‘qānūn’) and Islamic law (sharia), each of which plays a part in the Yemeni legal milieu.
9The overlay in Yemen of operative legal arrangements that involve a legislated civil code, religious schools of jurisprudence, and tribal customs and traditions may at times appear confusing, perhaps even competitive; unclear or imprecise language can reinforce that perception. But a similar problem exists with the term “rule of law” generally: despite achieving global endorsement, it has no commonly‑agreed upon definition.8 Rather, it is generally regarded as a settled body of regulations to govern a state’s activities, regardless of whether that function is intrinsically or fundamentally just. For the purpose of this article, then, “justice” will refer to the processes that mediate behavior that most Yemenis consider to be honorable and religiously righteous, as well as to those positive laws and legal practices widely deemed reasonable and acceptable in resolving disputes and settling contentious issues.
10Officially, the government of Yemen adheres to a civil system of law and procedure (qānūn), enhanced by the Egyptian model, which itself was infused with a rich civil tradition from France. Democratic legal institutions exist: a constitution,9 the idea of due process, a ministry of justice, a court system including an appellate level, administrative agencies, even a Ministry of Human Rights. But the overall civil system in Yemen is vague beyond its foundational components. Implementing laws are lacking, so even when good law exists, lawyers, judges, and individuals may be unsure what it means or how to apply it. Most damaging: the government’s execution of the law is occasional, incomplete, and mostly ineffective. Although the Yemeni legal system that was formalized after unity in 1990 is unified politically under the banner of democratic principles, the historic legal philosophies of North and South Yemen were quite divergent prior to the latter half of the 20th century, with republican rule in the former and Marxist rule in the latter. This tension continues to play out within various factions of Yemeni society.
- 10 Amin, 1987, p. 28 and 52.
11The structures of the legal systems converged by 1970 when each state, the Yemen Arab Republic and People’s Democratic Republic of Yemen, respectively, adopted constitutions and legislative bodies with elected members. The constitutions were very different in their approaches to rights and duties, but each constitution made explicit that Islam was the basis of all law.10 Both traditions also acknowledged the role of customary law, albeit different types, which continued to impact practical legal strategies.
12In legal juxtaposition to national law (qānūn) in much of the country today is ‘urf al‑qabīlī, or customary, tribal law which is central to understanding the confusing system of Yemeni legal norms. Rashād al‑‘Ālīmī, academic and former Minister of the Interior, defines ‘urf as “rules instituted in Yemeni tribes to resolve internal and external conflicts.”11 ‘Urf existed in pre‑Islamic times, throughout areas which eventually converted to the faith, but nowhere does it remain as strong as in modern northern Yemen. ‘Urf comprises a sophisticated and legitimate legal system, recognized in Yemeni national law and, given proper conditions, in Islamic law. In the pre‑Islamic period, it was the main legal system, but even today the concept and some of the rules are relevant, especially in certain tribal areas of the country.
- 12 Kamali, 1989, p. 290.
- 13 ‘Urf means “that which is known” in Arabic. I will use the truncated term “‘urf” and “customary law (...)
- 14 Weir, 2007, p.190‑1.
13Customary law in general derives from recurrent practices that society recognizes,12 and in Yemen, those practices adhered to the standard by which to judge tribesmen by tribal values. The tribesman could not act unjustly if he wished to maintain his status in his society. ‘Urf codifies the behavior of the ideal, virtuous tribesman which, either nostalgically or aspirationally, many Yemenis still valorize. The tribesman’s code of conduct, along with the tribal idea of what constitutes justice, has crystallized into the practiced, though mostly unwritten, legal code of ‘urf al‑qabīlī.13 In the case of Yemeni ‘urf, tribal and local Islamic customs and traditions, or ‘ādāt wa‑taqālīd, namely those habitual practices deemed to be fair, common and upholding tribal values, serve as an ideological foundation. Such traditions and customs aimed to maintain peace, enforce order, respect the dignity of individual members of the community, protect the weak, honor authority figures and ensure an equitable hearing and the enforcement of judgment. Historically, even those authority figures who applied customary law, usually tribal leaders, were themselves constrained by the code.14
- 15 For an explication of the reasons for which Yemenis increasingly have recourse to customary law, se (...)
- 16 Arbitration, 1995.
14‘Urf remains germane today because of its ability to communicate complicated standards and fairly enforce them, even when they have evolved intricate nuances. As a result, it is reasonably efficient in its promulgation and execution and continues to be one of the most respected forms of law in the country.15 Yemenis may choose to apply ‘urf even in government courts. Parties may grant an otherwise non‑tribal, civil judge the authority to apply aspects of tribal law through a process called tafwīḍ (literally “delegation of authority”), in a manner similar to arbitration. According to Article 8 of the Yemeni Arbitration Law of 1992, this process is reviewable in front of an appellate tribunal, diminishing the risk of misinformed application or arbitrary rules and further giving credibility and legitimacy to this type of resolution.16 Yet, despite the status customary law has earned and maintained, no Yemeni government or sovereign has codified it through legislation or otherwise into official authoritative text.
- 17 Vikør, 2005, p. 166.
- 18 Kamali, 1989, p. 286‑87.
- 19 Vikør, 2005, p. 167.
- 20 Kamali, 1989, p. 284; he notes that a Hanafi jurist has also recorded this maxim.
15It is sharia which remains the main operative legal arrangement in Yemen, and much of customary law has evolved to suit Islamic strictures that are expressed either in the revelation of the Quran or through the Prophet’s endorsement (expressly, in the form of the ḥadīth, or tacitly, through the sunna).17 Sharia addresses the usage of ‘urf and condones it as valid given certain conditions, such as when it is used for clarification, especially in commercial purposes, provided it does not contradict the text of Islamic law.18 Customary law can also assist in understanding the local context of Islamic law, albeit without altering the ultimate revealed texts.19 While not all Islamic legal scholars agree on even this limited validity of customary law, certain schools of legal thought have unequivocally accepted it. One Shafi‘ī jurist went so far as to say “what is proven by ‘urf is like that which is proven by a sharia proof.”20
- 21 Personal Communication with Muḥammad al‑Qīrī, Sana’a, May 2012.
16The Zaydī madhhab, or school of jurisprudence, predominates among the northern tribes. Although Zaydīs are a minority in Yemen today, they are heavily influential in the areas around Sana’a and, insofar as tribal politics shape the Yemeni government, the rest of the country, too. Moreover, modern‑day Zaydīs are caught in the emerging sectarian conflict between Sunna and Shi‘a in the Middle East in general, fueled in Yemen by the rise to political prominence of the so‑called Ḥūthī movement. Sunni (mainly Shafi‘ī) Yemenis increasingly use the terms “Zaydī” and “Ḥūthī” interchangeably, while some Zaydīs see the Ḥūthīs — the Zaydi followers of Ḥusayn Badr al‑Dīn al‑Ḥūthī, a rebel leader assassinated by the Yemeni central government in 2004 — as an extremist offshoot.21 Because of the Ḥūthīs’ adherence to Zaydism, a branch of Shi’ism, suspicion abounds about Ḥūthīs acting as political and military agents of Iran in Yemen.
- 22 Stookey, 1978, p. 85.
- 23 Armstrong, 2001, p. 48.
- 24 Stookey, 1978, p. 83.
- 25 Vikør, 2005, p. 122.
- 26 Noakes, 1991, p. 24.
- 27 Stookey, 1978, p. 83.
17The Zaydī school was born out of the struggles of its founder, Zayd b. ‘Alī, against leaders like the Umayyid caliphs, whom many considered to be unjust.22 Zayd rejected the idea of imamic succession developed by his brother, Muḥammad al‑Bāqir (i.e. that each imam chooses his own successor, transmitting esoteric doctrine to the new leader).23 This type of practicality characterizes Zaydism, which has also been called “pragmatic Shi‘ism”24 and is often spoken of as the Shi‘a school closest to Sunnism25 (to the Hanafi school of jurisprudence in particular26), the chief difference being the Zaydī doctrine of the imamate.27
- 28 Wenner, 1991, p. 25.
- 29 Ibid.
- 30 Eventually, this usage became more limited and closer to that of the Shafi‘i school (Dresch, 1993, (...)
- 31 Vom Bruck, 2005, p. 31.
- 32 Clark, 2010, p. 25.
18The emphasis on rebellion against unjust rule and the doctrine of imamic election uniquely characterize the religious faith of Zaydīs. One of the fourteen requirements for election of a Zaydī imam by his people is that he be “just”.28 Another is that he be learned in Islamic law and teachings (mujtahid).29 This criterion is important as it traditionally allows Zaydīs to use ijtihād, independent inference of the rules of sharia, a concept limited in Sunnism.30 In Zaydism, the concept of ‘ilm, or supreme knowledge, permits a Zaydī imam to rule based on divine right, in addition to learnedness, but this does not imply infallibility.31 In fact the “violent overthrow of an unjust leader” has come to be viewed as a “specifically Zaydī religious duty”.32
- 33 Dresch, 1993, p. 167.
- 34 Ibid.
- 35 Dresch, 1993, p. 167.
19These attributes resonated with the tribal values at the core of northern Yemeni society. So it is no surprise that tribes first invited al‑Hādī Yaḥyā, who would found the Zaydī Imamate, to Yemen to mediate tribal disputes in 893.33 Though his first attempt failed, he eventually became “Commander of the Faithful and Imam.”34 In accordance with the Zaydī doctrine that the duty of the Imam is “to enjoin what is right and forbid what is wrong” (another hint of the important role justice plays in Zaydī teachings), al‑Hādī Yaḥyā used his authority to correct tribal acceptance of un‑Islamic behavior and to impart proper Islamic values. In some cases he fought to constrain the tribes to accept sayyids, “members of the Prophet’s House,” as their rightful leaders.”35
- 36 Vikør, 2005, p. 123.
- 37 Haykel, 2002, p. 361.
- 38 They also may have contributed to a general decline in Zaydism in the 18th century, which resulted (...)
20 Muḥammad b. ‘Alī al‑Shawkānī (1759–1834), perhaps the best‑known Yemeni legal scholar,36 systematically integrated Sunni principles into Zaydī jurisprudence, highlighting the Sunni sources for the ḥadīth, or sayings of the Prophet (though al‑Shawkānī did not accept all legal sources of the Sunni schools, such as analogical deduction and consensus).37 At the same time, Zaydī rulers were struggling to deal fairly with their Shafi‘ī subjects in Lower Yemen. Taken together, al‑Shawkānī’s reform of Zaydism and the accommodation of Shafi‘ī subjects indicate both a desire to harmonize traditions and a practical approach towards finessing potential legal conflicts.38
21 Such a spirit of pragmatic fairness was sorely needed in 2011, when perceptions of injustice factored into many Yemeni citizens’ unambiguous, vocal outrage at the establishment. Yemen’s youth called for a better future, a path away from the squandering appropriation of resources widely referred to as ‘corruption’. Southerners railed against historic injustices, claiming among other things that during the fall of the PDRY in 1990, southern lands and wealth were taken improperly and without compensation by northern officials. They also lamented the imbalance between the exploitation of oil and gas — resources which sit primarily on historically southern lands —and the comparatively slight return on investment to those lands.
- 39 The exact number of fatalities from that day is in dispute. Generally, media reports state “at leas (...)
22Furthermore, the events of 2011 in and around Change Square in Sanaa forced questions that, at their core, speak to issues of justice. Why were 52 individuals39 murdered during a protest on March 18th of that year? What right did private or non‑military men, commonly called balāṭija (“thugs”), have to enforce their interpretation of law and order? Did land or shop owners have a right to compensation for destruction and loss of business in protest areas of the city? Most critically, did the former president, ‘Alī ‘Abd Allāh Ṣāliḥ, deserve the current agreement granting him immunity for his actions in 2011? What of the question of economic justice for over half of Yemen’s population, which lives below the globally accepted poverty line? And fair treatment for refugees from the Horn of Africa who arrive in Yemen and are extorted, tortured, or worse? Is there a right to human security, to live free from armed, sexual, or sectarian violence? Are Yemeni women able to assert and defend the rights they have?
- 40 Lust and Wichmann, 2012.
23One survey has shown that Egyptians cited reasons of social justice, as well as “issues of dignity and identity,” in describing what spurred protestors to the streets in 2011 against the Mubarak regime.40 In Yemen the date of 18 March 2011, now referred to as Yawm al‑Karāma (the Day of Dignity), underscores the cultural significance of dignity and recognizes that events on that day not only resulted in the massacre of at least 52 protesters by unidentified gunmen (believed to be security forces acting with Ṣāliḥ’s connivance), but also affronted Yemenis’ sense of self‑respect and justice.
- 41 Specifically, Part 1 Sec. 4 states “The GCC Initiative and the Mechanism shall supersede any curren (...)
- 42 Murray, 2013.
- 43 Phillips, 2011.
24The Yemeni National Dialogue Conference (NDC) offered a unique opportunity to examine and redress such affronts. The idea for a national dialogue stemmed from the Gulf Cooperation Council‑brokered agreement resolving the political impasse that had arisen between Ṣāliḥ and his opponents by late 2011. This agreement, known as the Gulf Initiative, paved the way for president Ṣāliḥ to leave office given certain conditions, including the creation of a committee for National Dialogue, granting him in return immunity for his role in quashing protests. The GCC agreement itself did not abide by the rules of the constitution, nor by democratic principles: citizens did not have the opportunity to vote for it; the chamber of representatives in Parliament did not have the chance to ratify it; and the agreement specifically states that it is not reviewable by any state institution and supersedes all other agreements.41 The UN Human Rights chief, Navi Pillay, warned that it may in fact violate international law.42 Nevertheless the Gulf Initiative and the NDC represented a significant departure from Yemen’s previous political scene, which Sarah Phillips has described as “the politics of permanent crisis,” a cycle wherein the Ṣāliḥ regime preyed on security fears in the international community by encouraging a destabilized security situation in order to solicit foreign money, which in turn funded corrupt political patronage networks that ultimately destabilized the security situation.43 Thus although the Gulf Initiative was democratically deficient, most ordinary Yemenis I asked at voting stations in and out of Sana’a during transitional elections in 2012 were initially pleased that the agreement had broken this cycle of corruption and averted more bloodshed.
- 44 Odendaal, 2011, p. 10.
- 45 Odendaal, 2011, p. 11.
- 46 Odendaal, 2011, p. 4.
- 47 Ibid, p. 9.
25Yemen’s National Dialogue qualified as high‑level summit‑type dialogue: negotiation aimed at “defusing a national political crisis”.44 Such types of dialogues are “high‑risk events, where success is elusive, especially when an immediate and overwhelming goal of the dialogue may be to stop fighting, address emergency humanitarian needs, to prevent further large‑scale population displacement, and [to] disarm fighters.”45 According to a report for the International Dialogue on Peacebuilding and Statebuilding, an OECD‑led initiative, the ultimate objective of political dialogue is “to address conflict drivers and foster reconciliation, [to] build a greater national consensus and social cohesion, and [to] define a shared vision of the future.”46 It “contributes to the promotion of democratic practices by allowing the voices of all sections of society to be heard.”47
- 48 NDC, “Representation”, 2013.
26On 18 March 2013 — the second anniversary of Yawm al‑Karāma —the NDC convened its 565 delegates at the Movenpick Hotel in Sana’a to discuss, debate, and advise upon Yemen’s political future. The NDC was headed by a nine‑member presidency, including the newly appointed president of the Republic of Yemen, ‘Abd Rabbuh Manṣūr Hādī and representatives of various political factions, and its delegates supposedly represented a cross‑section of Yemeni society; though many were prominent figures from the political establishment, others came from historically underrepresented groups — 30% were women, and 20% youth (under the age of 40).48 The delegates were divided into nine ‘working groups,’ each focused upon a particularly fraught national issue: the South, Sa‘ada, good governance, military/security reform, rights/freedoms, development, and ‘special entities,’ in addition to state building and ‘transitional justice.’ The latter was meant to address the Yawm al‑Karāma massacre, among other incidents.
27The ultimate goal of the NDC was to obtain consensus positions on these issues and to establish a constitutional committee to redraft the country’s constitution. Its proceedings were broadcast on national television and radio; its slogan, “Through Dialogue we build the New Yemen”, appeared on billboards, posters, and stickers; urban billboards and advertisements proclaiming the latest decisions of the NDC, framed by the square quotation bubble from the NDC logo.
- 49 “Historical…”, 2013.
- 50 AFP, 2015.
28Many of these decisions referenced issues closely connected to the idea of justice, like workers’ rights, independent bureaucracy, freedom of the press, and reformation of the legal system. Overall, these messages of equality, dignity, respect, and justice were encouraging, particularly when reinforced by action. For instance, in an unprecedented move in late August 2013, the interim Yemeni government officially apologized to both Ḥūthīs and Southerners for past wrongs. This apology was a direct outcome of the NDC, and went some distance towards assuaging historic grievances ranging from dispossession of land and wealth in the south to a seasonal ten year war against the Ḥūthīs in the north.49 Hādī accompanied this statement with action by announcing the reinstatement of southern soldiers who had been sacked during the civil war in 1994 and by offering restitution for confiscated southern properties.50 It represented the most serious attempt yet seen to recognize aggrieved feelings in the south and to rectify the perceived injustices endured by Southerners at the hands of the northern‑based government.
- 51 Discussion with National Dialogue Conference members, Sana’a, 29 August 2013.
- 52 Personal Communication with Khālid al‑Ānsī, Sana’a, 10 September 2013.
- 53 Ibid.
29In order to evaluate whether these and similar decisions were rooted in philosophical debates about justice at the NDC, I visited the state‑building working group and inquired about which theories and concepts would animate the justice sector of the new state apparatus. Group members did not cite any overarching theory or philosophy in response to questions about foundational components of justice, except to mention sharia.51 While there is nothing wrong per se with using sharia as a foundational legal philosophy (aside from obvious possible confusion and infighting over the many different interpretations of the term), the responses seemed formulaic, or lacking in intellectual engagement. Attempts to find a more thought‑provoking response to such enquiries led me away from the NDC entirely, to Khālid al‑Ānsī, an attorney and activist allied with protesters in Change Square and Nobel Laureate Tawakkul Karmān. Al‑Ānsī harshly criticized the NDC process, going so far as to call Yemen a “group, not a nation”.52 He claimed that the country is “at a step before justice”, since there is “no independent judiciary.”53
- 54 Constitution, Chapter I Article 3.
- 55 For a nuanced discussion of the concept of legal plurality, see Dupret, 2005.
- 56 Constitution, Chapter III Article 147.
30In theory, the government in modern, unified Yemen is that of a democratic republic, with the attendant institutions that form of government requires: a constitution, bicameral parliament, executive offices, and an independent court system. Both the tradition of customary law and the idea that Islam remains the principal source of all law carried over into the new constitution that emerged when the PDRY and YAR unified to become the new Republic of Yemen54; this system was an attempt to establish the rule of law in the country, collating tribal, Islamic, and other traditions into a “legal plurality.”55 The constitution, which the NDC was tasked to replace, dates from 1994 and created legislative, executive, and judiciary branches of government. Chapter III of the constitution governs Judicial Authority: Article 147 states that such authority is “autonomous” and no other body may interfere… in the affairs of justice,”56 and Article 150 calls for the establishment of the Supreme Judicial Council to “execute these guarantees” for the judiciary branch.
- 57 Caton, 2013, p. 101.
- 58 Ibid., p. 102.
31In reality, however, “judicial practice in Yemen has functioned as an extension of executive power and has been characterized by the dynamics of personalization and patronage that are features of the broader political system.”57 If cases do arrive at the prosecutor’s office, the executive branch may discourage them from being brought to trial.58 As al‑Ānsī points out, there is often a disconnect between the theoretical model and Yemen’s reality‑‑a disconnect that could be attenuated by better implementation and execution of Yemen’s existing legal code.
- 59 NDC “Presidential Decree...”, 2014.
32As the NDC sputtered to an uninspiring conclusion in late January 2014, the country’s transition to a new political order remained mostly inchoate. Rather than focusing on better implementation of existing laws, however, transition President Hādī and the NDC embarked upon an arguably more glamorous solution to Yemen’s dilemmas: the drafting of a new constitution. On 8 March 2014, a presidential decree called for a seventeen‑member constitution‑drafting committee (CDC) to prepare a new constitution, to be completed within one year and ratified by popular referendum.59 Among the most important tasks of the new constitution would be the division of Yemen into a six‑region federal state, one of the outcomes recommended by the NDC.
33The formation of the committee immediately sparked protests.60 The NDC had recommended thirty members rather than seventeen; all were to have ten years’ experience in constitutional law. Yet of the seventeen CDC appointees, only one had a background in constitutional law (and lacked the stipulated ten years’ experience). The Socialist party and the Iṣlāḥ party complained that they were inadequately represented; Shabab al‑Thawra (the Arab Spring’s youth movement) were incensed that none of their nominees was appointed to the CDC. Hādī also extended the timeline for the process: the NDC had specified a six‑month drafting period, which the president extended to a full year, with further extensions possible, a decision that was “widely interpreted as a way for Hādī to extend Yemen’s interim period and remain in power longer than originally envisioned.”61 Thus, rather than being perceived as fair and transparent, the constitution‑drafting process was marred from its outset by accusations of injustice, marginalization, and self‑interest.
- 62 Abulohoom.
- 63 Nabil Abdulhafidh Maged, quoted in Abulohoom.
- 64 NDC “National…”, 2013.
- 65 NDC, “National…”.
34The appointees also seemed unsure of their mandate: CDC member Ulfat al‑Dubai lamented that once they began to write the constitutional articles on federalism, “we figured out that the outcomes of the NDC have only indicated general guidelines, devoid of details.”62 According to one observer, CDC members also debated whether to revoke a 1990 law granting legal immunity from prosecution to high‑ranking officials in the government.63 Such debate is clearly related to the serious discussion that took place during the NDC about revoking the immunity from prosecution for wrongdoing during 2011 that was granted to Ṣāliḥ by the GCC Initiative.64 This immunity is a major reason why the former president did not run, fight, or become assassinated, like other authoritarian leaders during 2011, and rescinding it could have had serious and violent repercussions. Yet the perception that this immunity had allowed Ṣāliḥ to escape justice, or to commit injustices without consequence, was consequential enough to nearly stall the National Issues and Transitional Justice Working Group’s voting on a series of NDC decisions back in November 2013. Members of Ṣāliḥ’s General People’s Congress party refused even to discuss the matter, and Yasīn Sa‘īd Nu‘mān, a member of the NDC’s presidential council had to be called in to urge the delegates to move past this issue, pointing out “not a single aide of Ṣāliḥ’s was granted immunity,” as though this would mollify those who wished to see Ṣāliḥ himself held personally accountable. 65 Effectively, this transmuted a potentially useful debate about the rightness or wrongness of Ṣāliḥ’s immunity into the politically expedient preference of ostensible cooperation for the sake of a quick resolution to the NDC.
35CDC members, and Yemenis in general, seemed to hope that the new Constitution would serve in some way to repair past injustice. NDC member Bāsim al‑Ḥakīmī was even quoted as saying, “the conventional political and social parties which have existed in Yemen since the 1970s might oppose the new constitution as it will be based on justice [my italics] and the equality of wealth distribution, which will necessarily affect their interests.”66
- 67 Saba Net, “Peace and National Partnership…”.
36Perhaps ironically, the preemption of the constitution came not from the old guard, the “conventional political and social parties,” but from the Ḥūthī movement, a newly empowered political group that invaded the capital on 21 September 2014, riding a wave of popular discontent over rising petrol prices. Hādī’s attempt to broker a deal with the Ḥūthīs, The Peace and National Partnership Agreement (PNPA), provided a momentary reprieve from the violent tensions, and bought the CDC a few more months in which to complete the drafting of the constitution. The language of the PNPA borrows, once again, the vocabulary of justice and fairness, praising the NDC for laying the foundations of “a new, federal democratic Yemeni state based on the rule of law, equal citizenship, human rights and good governance,” citing its “spirit of partnership and consensus,” and obliging Hādī to “exercise his constitutional authorities to ensure fair representation of all constituencies in executive bodies.”67
- 68 Pomed.
- 69 Madabish.
- 70 Cf. both articles by Al‑Moshki.
- 71 Mohsen and al‑Moshki.
37Yet the reprieve was short lived. The drafting of the Constitution, which continued over the remainder of 2014 in an atmosphere of growing tension and suspicion between all parties, was rejected by the Ḥūthī movement on 26 December 2014, on the grounds that they fundamentally disagreed with the proposal to divide Yemen into six federal regions, which they claim had been decided without the necessary study.68 This occurred three weeks before the final draft of the new Constitution was even published. On 17 January 2015, the day the final draft of the Constitution containing the objectionable six‑region partition was released, the Ḥūthīs kidnapped Aḥmad ‛Awaḍ b. Mubārak, Hādī’s Chief‑of‑Staff and a prominent member of the CDC.69 After attempts to bargain for Bin Mubarak’s release failed,70 Hādī, the Prime Minister Khālid Bahah, and the Cabinet all resigned, leaving the government in chaos.71 As this article goes to print, instead of justice and the rule of law, Yemen seems now to be obeying only the ‘law’ of ‘might makes right.’
38The current state of chaos was not inevitable, but avoiding it would have required both deeper thought about the nature of justice and more determined efforts to realize justice within Yemeni society. Justice in the Yemeni context cannot be entirely encapsulated by tribal values, religious strictures, or mere civil legal procedure. The country’s long tradition of laws, both customary and legislated, before and after unity, have inculcated awareness of the purpose and function of a fair legal system. Wide acceptance and devout adherence to Islamic tradition, be it Zaydī or another madhhab, has inculcated the sense that acting justly is also a religious duty.
39Solutions to legal dilemmas in Yemen are thus found in a web of legal traditions, systems and ideas. To Yemenis this often feels like chaos, and indeed trying to navigate it can be. A common lament among Yemenis is that “there is no system (mā fī niẓām).” This perception often arises when unfair situations persist without consequence: paying for official services, such as electricity, only to find those services damaged or completely abrogated by rogue attacks that the state seems powerless to stop; observing the increase of wealth in the hands of government elite at a time of worsening economic conditions; avoiding, or observing the avoidance, of law enforcement through the use of bribes or personal influence. What individuals may fail to mention, however, is that opportunities exist for retribution, recompense, or redress, but often outside official, state‑sanctioned channels and frequently as a part of an organic process.
40‘Urf in Yemen can be viewed as an example of common law, one which has evolved into accepted practices and reasoned decisions based on the norms of the community and on what an ideal standard of Yemeni behavior deems acceptable in given circumstances; it is a collection of tribal traditions, influenced by religious precepts, that governs interactions among individuals and groups. Like a common law system, its legal rules grow organically from the decisions of arbiters and set prospective precedent based on individual legal issues, rather than being a comprehensive code legislated from the commencement of a new legislative era. If viewed as part of a governing system, rather than a series of coincidental or discrete judgments, ‘urf often manifests organized and coordinated activity that is more robust than the state legal system.
- 72 Phillips, 2008, p. 90, quoting Jār Allāh ‘Umar, the late leader of the Yemeni Socialist Party.
41Today some Yemenis describe systems like ‘urf as backwards or irrelevant, “no longer a social or economic institution.”72 Although it may be viewed as more efficient by Yemenis who resort to it when the state cannot resolve grievances, it does not have universally accepted standards or the power of enforcement to make it effective as a nationally accepted tool for maintaining order and promoting justice.
42Legal authority has suffered a similar fate, with Yemenis unsure of which system, ‘urf or qānūn, will be most efficient and just in adjudicating their claims. In Yemen, justice may not yet represent a clearly explainable value system, nor a set of definite ideas about retribution, restitution, utilitarianism, etc. Some Yemenis believe, for instance, that diyah, or blood money, is required as payment after an unjustified killing; others say that such payment establishes an unjust hierarchy of life, since payments differ based on status, which is forbidden in Islam. Some Yemenis take revenge when aggrieved; others practice forgiveness. While these are characteristics of any diverse culture, most societies have an agreed‑upon standard, the law, for acceptable behavior and its enforcement.
- 73 I do not mean to comment here on the debate about whether Yemen is a “failed state”, but merely to (...)
- 74 Carapico, 1998, p. 11.
43Conversely, justice in Yemen appears currently to occupy an intermittent, liminal space between both tribal and Islamic values and the authentic enactment of a more democratic call of “justice for all;” between a failed or failing government73 and the promise of a new, better one. In Civil Society in Yemen, Sheila Carapico describes the “civic realm” as “the interstices of the government’s public sphere, the private profit sector of business, and the private affectionate space of families,” i.e. in a space that permits independent actors to work together if they so choose.74 In many ways, the current concept of Yemeni justice finds itself in an analogous space: in the interstices between the government’s court systems, religious strictures and customary tribal law. Yet justice does not inhabit any of those areas fully, rendering it more probable that an individual Yemeni will seek retribution, restitution, redress, utility, or any other form of ‘justice’ as he sees fit, confined perhaps within the parameters of acceptable traditions.
44Philosopher of natural law John Finnis has argued eloquently that, in general, human beings should be reasonable, and the more reasonable they are the better, or more moral, the product of their behavior, a notion he terms ‘practical reasonableness.’ This notion is familiar to common law systems. Judgments involving civil wrongs often consider it when determining liability, and most people live lawful lives each day — even if they do not know every letter of their society’s laws — because they make reasonable decisions and act reasonably.
- 75 Flax, 1993, p. 332.
- 76 Finnis, 1980, p. 90.
- 77 Ibid. Cf. Finnis, 1980, Part Two, Chapter V.
- 78 Ibid., p. 125.
45Yet practical reasonableness, at least as Finnis outlines it, requires more than mere rationality; “[r]ationalistic approaches to justice are doomed to fail,“ as one psychologist puts it, ”and are actually counterproductive because they block the development of other capacities, such as empathy and appreciation for otherness, which are required for the effective exercise of justice.”75 Many components, or “values” as Finnis calls them, enrich his concept, including knowledge, life, play and ‘religion’, i.e. the sense of responsibility for an irreducible order of things beyond ‘man’.76 Moreover, practical reasonableness has constraints, such as respect for these values, objectivity, commitment and efficiency (“within reason”).77 Above all, practical reasonableness is a manifestation of one’s conscience and, more precisely, of not doing that which one feels should not be done.78
46Finnis claims that “[t]he requirements of justice, then, are the concrete implications of the basic requirement of practical reasonableness,” which is “related… to the basic value of friendship” and “excludes arbitrary self‑preference in the pursuit of good.”79 The resulting practice of practical reasonableness removes it from the realm of a mechanical judgment production and renders it a full expression of humanness, a personal act to be respected at all times.
47This combination of value‑laden practical reasonableness is evident in legal interaction in Yemen. No matter how elusive a definition of justice may be and how difficult it might be to encapsulate its essence in any society, let alone in Yemeni society, this concept belies much of what occurs both in formal or quasi‑formal legal structures in Yemen. Yemenis seem to have an innate sense of this view of justice, and outrage at what they perceive to be injustice, at for example what Finnis calls “arbitrary self‑preference,” or what Yemenis labeled ‘corruption’ during the Arab Spring. In fact the concept of practical reasonableness seems ideally suited to Yemeni concepts of justice, since two of the main influences on legal development in the country, customary law and Zaydī jurisprudence, revolve around acting honorably, righteously, and justly.
48The Gulf Initiative that called for the National Dialogue is a useful example of an extrajudicial resolution functioning legally to resolve a fraught situation, combining Yemeni cultural values of community‑based resolution and desire to avoid conflict with the notion of reasonableness. While the Initiative may not have met all the criteria for Finnis’s notion of ‘practical reasonableness’ it improved circumstances considerably in the short‑term, extricating the country from a very dangerous, precarious situation.
49The effectiveness of the Gulf Initiative, in spite of its democratic deficit, also illustrates another important feature of the most effective way to resolve most legal issues right now in the country: through maintaining personal relationships and attention to non‑legal aspects of conflict mediation. Fair treatment, whether for citizens by their leaders or for employees by their employers, clarity of expression and expectations, seriousness of purpose, respect, kindness, and empathy are all significant facets of Finnis’s theory of practical reasonableness. Some of these even played a role in the granting of immunity to the former President, offering him the opportunity to save face through a peaceful transition of power.
50Yet, that deal is in question at the moment, especially as the Gulf Initiative has been rendered irrelevant by the Ḥūthī’s forceful takeover of most government ministries, effectively toppling the government and forcing President Hādī to resign. Clearly, it did not have the intended effect of avoiding a spiral of violence — rather, it merely delayed it to the present time.
- 80 Honneth, 2004, p. 351.
- 81 Ibid.
- 82 Ibid., citing the work of Nancy Fraser.
51Justice, both its conception and enactment, does not occur in a vacuum in Yemen and in fact politics swirls around it. Yet examining justice in the Yemeni context as a process in the course of evolution, rather than as the product of political maneuvering, better serves discussion of it. The conflation of law and politics is not unique to Yemen, and in fact broader global trends have begun to conceive of justice with “political effects.”80 Normative orientations have shifted from “the elimination of such social or economic inequalities as could not be justified with reasonable arguments”, and turned towards “the avoidance of humiliation or disrespect.”81 This shift has been described as a transition from “the idea of ‘redistribution’ to the notion of ‘recognition’.82
52In modern Yemen, both are concepts that have been in play during and since 2011, as new political actors (the youth movement and the Ḥūthīs in particular) have emerged, and especially as the specter of a new constitution has threatened the status quo. Regardless of whether resources are distributed in a way to build consensus, which political actors are recognized, or to what extent they prevail, the only (and sadly slim) hope for a positive outcome of the current chaos rests with the parties involved: that they will recognize the value of Yemen’s own historic traditions and conceptualizations of just and fair action, and the value of decisions guided not by self‑, sectarian, or group interest, but by practical reasonableness, in order to engender a perception of justice and a foundation upon which to build a future Yemeni state or states.