The Rule of Law Industry

Can external ‘expert’ assistance ever provide value to the intended recipients?

Do rule of law programs exist primarily for the benefit of globetrotting international legal experts?

The Rule-of-Law Industry – much room for improvement

Afghan women and the Rule of Law conundrum

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The Constitutions of Unified Yemen

Yemen is in the midst of considerable civil unrest and the Government of Yemen has lost effective control of parts of the country and some major cities. A new constitution has been suggested by President Saleh and by those calling for his departure.

The Republic of Yemen was formed on 22 May 1990 upon the unification of North Yemen and South Yemen . North Yemen (The Yemen Arab Republic) – independent from the Ottoman Empire in 1918 – had been a more traditional Arab Islamic state since. South Yemen (The People’s Democratic Republic of Yemen) – independent from Britain since 1967 – had been a socialist state. There have been 3 constitutions since unification – introduced in 1991, 1994 and 2001.

The 1991 constitution stated in Article 3 that shari’a is the main source of legislation. This was amended in the 1994 constitution (and the amendment preserved in the 2001 constitution) to read “shari’a is the source of all legislation”.

Since 1999 the President has been directly elected. Ali Abdullah Saleh has been the only President since unification (initially as Chairman of the Presidency Council and post 1994 as President). The Presidential term is 7 years and the last election was in 2006.

The last Council of Representatives elections should have taken place in April 2009. They were postponed by 2 years – a period that has now expired.

The law making process has changed over time. Under the 1991 constitution, laws were made by the Council of Representatives or during parliamentary recess by the Presidential Council under Article 95. In fact most laws during the first decade after unification were made by the Presidential Council (and post 1994 by the President) using this ‘recess’ provision. Subsequent (post 2001) revision of the constitution attempted to give greater law making capacity to the Council of Representatives.

Further Information

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A Primer on the Libyan Legal System

International media attention is currently focused on the hunt for Muammar Ghadaffi; the resulting questions concerning his trial in a domestic or international tribunal; and on the constitutional framework which will underpin the new Libya. However in the longer term, the laws which have most impact on the lives of the Libyan people are those relating to contracts, property, crime, elections, family and inheritance law. An opportunity has arisen for law reform which can assist the future development of Libya.

Reform must come from within Libya rather than be imposed from outside. Rory Stewart MP, a former Coalition Provisional Authority official in 2003/2004 in Maysan and Dhi Qar in southern Iraq, is reported in the Huffington Post on 4 September 2011 as stating that “I think the most important thing that [the Libyan people] need is to be able to determine their own destiny. I think the biggest danger is that the international community will panic and over-react, and start forcing its support and its advisors, its money.”

There is however a place for experienced specialist international assistance where demanded by the new Libyan authorities. One recurring and fundamental mistake made by those working in the Rule of Law business is to fail to take sufficient time to understand the existing legal systems in countries in which they are providing advice and assistance. This post aims to guide those coming to the law of Libya for the first time.

The original Constitution of Libya upon independence in 1951 was cancelled by the revolutionary Constitutional Declaration (al-i’lan addusturi) issued on 12 December 1969. The subsequent declarations of the Ghaddafi regime would appear to have lost popular legitimacy but have not yet been replaced by a new constitutional settlement which is promised by the National Transitional Council.

Personal Status is governed by the shari’a (predominantly Maliki school) with a small element of codification. Otherwise the essential quality of the Libyan legal system is a civil law type common in the Arab world.

The cornerstones of the Libyan legal system are:
1. The 1953 Penal Code (qanun al-‘uqubat)
2. The 1954 Sanhuri Civil Code (al-qanun al-madani) based on the Egyptian model.
3. The 1954 Commercial Code (al-qanun al-tijari)
4. The 1954 Code of Civil and Commercial Procedure (qanun al murafa’at al-madaniyya wat-tijariyya)

There have been a number of legislative amendments to these Codes since their initial implementation.

The Supreme Council for Judicial Authority is the administrative authority of the judiciary which appoints, transfers and disciplines judges.

Libya has ratified the usual international treaties including: The International Covenant on Civil and Political Rights (ICCPR) (15 May 1970). Libya is one of two Arab states (Algeria is the other) to have signed the first Optional Protocol to the ICCPR, which allows individuals to communicate directly to the committee overseeing the ICCPR regarding alleged breaches of the convention. It has not signed the second Optional Protocol, which pledges signatories to abolish the death penalty; International Covenant on Economic, Social and Cultural Rights (CESCR): (15 May 1970); The Convention on the Elimination of All Forms of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT): (16 May 1989). It has not signed the Optional Protocol to CAT, which allows visits to places of detention by the Committee against Torture; The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (3 July 1968); The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (16 May 1989). When Libya acceded to CEDAW, it entered reservations stating that that the convention must be implemented in accordance with sharia. In July 1995, Libya submitted a new general reservation that the treaty’s implementation cannot conflict with personal status laws derived from sharia; The Convention on the Rights of the Child (CRC) (15 April 1993); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (18 June 2004).

Further information

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International Standards: Police

The UN High Commissioner for Human Rights has produced International Human Rights Standards for Law Enforcement: A Pocket Book on Human Rights for the Police.

The UN Code of Conduct for Law Enforcement Officials was adopted by the General Assembly in 1979 by Resolution 34/169 and Basic Principles on the Use of Force and Firearms by Law Enforcement Officials were adopted in 1990.

The UN Office on Drugs and Crime has produced a Compendium of UN standards and norms in crime prevention and criminal justice including principles relevant to the operation of the Police.

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International Standards: Corrections

Article 7 of the International Covenant on Civil and Political Rights states:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

The UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment expands upon Article 7 of the ICCPR and deals with prohibitions on torture and ill treatment at all stages of detention.

The UN Basic Principles for the Treatment of Prisoners set out 11 Principles based upon the UN Standard Minimum Rules for the Treatment of Prisoners which are not legally binding but aim to offer guidance for the treatment of prisoners and the management of correctional facilities.

The Convention on the Rights of the Child at Articles 9 and 36 also address standards of treatment for those in detention under 18.

The UN Office on Drugs and Crime has produced a Compendium of UN standards and norms in crime prevention and criminal justice including principles relevant to the operation of correctional and detention facilities.

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International Standards: Judiciary

Judicial independence is a central element of the rule of law. Judges are also subject to the law. Judicial training, appointment and accountability mechanisms need to be rigorous and transparent.

The UN Basic Principles on the Independence of the Judiciary were endorsed by the General Assembly in 1985 by Resolution 40/32.

The Bangalore Principles were developed by the Judicial Group on Strengthening Judicial Integrity, a group of senior judges from eight African and Asian common law countries formed in 2000 under the auspices of the Global Programme Against Corruption of the UN Office of Drug Control and Crime Prevention in Vienna. The principles were subsequently adopted by a roundtable of chief justices from all major legal traditions in November 2002. Directed at judges themselves rather than the state, these principles are:

  • Independence
  • Impartiality
  • Integrity
  • Propriety
  • Equality
  • Competence and Diligence

The UN Office on Drugs and Crime has produced a Compendium of UN standards and norms in crime prevention and criminal justice including principles relevant to the operation of the judiciary.

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The Legal Advisory Board

The Legal Advisory Board is a not for profit organisation dedicated to the rule of law, good governance and human rights.

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