RN congratulates nonviolent revolution in Yemen for the ending of dictatorship, charts constitutional way forward

04/06/2011

Right to Nonviolence congratulates the Yemeni nonviolent Revolution on the flight of the Yemeni dictator into exile in the night of the 4 to the 5th June 2011. This is a signal moment for the transformation of the Middle East and beyond. Consistent with RN’s message on the importance of the constitutional moment following the collapse of the dictator, law professor Chibli Mallat, RN’s Chairman, prepared the following outline for the way forward in Yemen.
Constitutional Moment in Yemen:

The need for ‘Transition Constituents’

4-5 June 2011: the Yemeni dictator is forced to flee. For the Middle East Revolution, the constitutional moment is on again. After four months of a relentless set of nonviolent demonstrations, this is the third dictator finding his comeuppance in the ongoing Middle East march for freedom. It is unfortunate that for all the power of the people’s nonviolent revolution in Yemen, ‘Ali Abdallah Saleh was ultimately forced out by a rocket attack on his palace. But the forest should not be masked by the trees. In one of the poorest countries in the world, nonviolence was consciously and tirelessly key to change.

The situation in Yemen is inevitably confused, but for the first time since the access to power of Saleh in 1978, freedom stares Yemenis in the eyes, and such force does the the light carry that it is as blinding as it is exhilarating. How to make freedom rule Yemen institutionally will take time and effort, but the most difficult task is behind Yemenis, should they choose to stick to nonviolence as the yardstick for their future.

As in Egypt, Tunisia and Bahrain, a working constitution is the entry point for the institutionalization of nonviolence.

As the old order collapses under the revolutionary tide, few constitutional markers are available. Since Saleh is unlikely to have formally resigned, the 1990 Constitution of Yemen appears to be the departing point to avoid chaos, but its answers are brief and untested. Article 116 provides the most relevant text for a fleeting situation: ‘If the post of the President of the Republic becomes vacant or should the President become permanently disabled, the Vice President temporarily takes over the presidential functions for a period that does not exceed sixty days, during which new elections for the President of the Republic shall take place.’

It would be naive, and unfair to Yemeni sacrifices, to read too much into this haphazard text. The Vice-President in Arab dictatorial regimes is a pale figure in the system, whom the president usually appoints because he represents little threat to his rule. Nor can one seriously imagine that presidential elections can be organized to be fair and representative within sixty days in the wake of a near 40-year dictatorship that was ended by the most significant revolution in Yemen’s modern history.

Transition to democracy requires a set of steps in answer to the following questions:

First, what to do with the Constitution?

The Yemeni Constitution is not salvageable in its present form. Over the years, it has been emptied from most of its original democratic meanings. Back in 1990, when it crowned a peaceful merger between South and North Yemen, a lively parliament and an effective judiciary were written into the text. The president’s terms were limited. Twenty-one years later, Saleh’s ‘monarblic’ style has turned the Constitution into an empty document save for the increased authority of a president cum dictator for life, and the first in a dynasty he actively cultivated by appointing sons and nephews in key security posts of his brutal system.

Something far more fundamental is needed: a constitutional convention, no less. To get to that stage however, the country needs another intermediary step. I call it for lack of a better word a group of ‘transition constituents’.

Second, what to do with the deposed president?

Saleh’s rule is over, in all likelihood forever. What remains is a chaotic situation guided by an article of the Constitution that puts in charge an illegitimate vice-president, while the rest of the articles, including those that regulate any transition, let alone the constitutional amendment process, are woefully inadequate. One disposition dwelling on the fate of a president whose most important hallmark in governance over the past four months was the callous ordering to shoot at nonviolent demonstrators, is Article 128 : ‘The President of the Republic may be charged with grand treason, violation of the Constitution, or any other action that prejudices the independence and sovereignty of the country. Such a charge requires the petitioning of half of the House of Representatives.’

The mechanism is cumbersome and ineffective considering that parliament is dominated by the president’s men. It is further complicated by another supermajority under the same Article: ‘The indictment decision on this matter requires the support of two thirds of the House of Representatives and the Law stipulates the procedures of the trial.’ For this to happen, there is no precedent and no Law, so the Yemen Revolution must now turn its attention to what would allow for a fair trial of Saleh. A referral to the ICC might be possible, but a mixed tribunal is preferable if it can be put together.

Third, what to do with the ruling party and the old cronies?

Like other ‘monarblics’, a key component of the regime, beyond the immediate family of the president, is the ruling party, in the case of Yemen the General People’s Congress. While in disarray, the party commands a set of buildings, that the Revolution will quickly overrun, and a network of sympathizers, informers and henchmen in various positions of responsibility in the state. The experience of the de-baathification laws and practice in Iraq has failed, and does not allow for an easy model to follow. The Middle East nonviolent revolution is still looking for a template to deal with the old guard and cronies of its now old regimes.

Many in the president’s entourage have turned their coats as their leader, whom they praised day and night until January 2011, collapsed. All of these should be made to understand that they do not have an immediate place in the new configuration, and that they should respect a time out from politics.

Fourth, how to get to the Constitutional Convention?

Beyond the street signifying to the major cronies of the old regime that they should take a vacation from politics, what can the Yemenis do for their difficult transition? If the Constitutional Convention is an absolute necessity, any such effort is a slow and complex process which needs to bring in both expertise and popular buy-into the process. For a working constitution to emerge, expertise is not sufficient. The people must be involved in it, and not only by way of a referendum at the end of the process.

So far, no decisive model has emerged. In Egypt, a constitutional revision was rapidly implemented under the leadership of a respected jurist, Tareq al-Bishri. But the process was undermined by the poor legitimacy of the SCAF (Supreme Council of the Armed Forces), the army commitee which carried out yet another putsch to remove Mubarak, and SCAF cannot be trusted to lead the transition. In Egypt, two surviving sets of the Mubarak days remain too prominent: the army high command, vesting in SCAF, and the prominent figures of the Mubarak entourage, including the security men still active in the police and secret services. This also means that the parliamentary and presidential elections as currently planned in the wake of the constitutional revision may not be the best way forward.

In Tunisia, the appointment of a council to draft a new constitution, headed by Yadh ben Achour, also a respected jurist, is more promising, but the continuation in power of so many cronies of the old regime is disturbing. Soon after ben Ali fled on 15 January 2011, one idea emerged, consisting of the following rule of thumb that keeps the cronies away from politics and any governmental responsibility: whomever met with the former president in the year preceding his collapse should steer clear from the public scene, unless he or she can convincingly rebut the presumption of collusion that such close association commands.

The Tunisian course is encouraging, albeit insufficient owing to the persistence of tainted figures of the old regime in government. The Egyptian post-Mubarak course is even more disturbing. Both in the new government and in the Arab League, the old cronies remain, but the process of the constitutional revision has entrusted the judiciary with an important role which needs to be modified and bolstered. Yemen can benefit from the success and failure of both courses to chart a more solid transitional course led by a transitional constituents’ council.

An enhanced role for the judicary in the transition?

The lesson therefore is that before a constitutional convention is appointed or elected, a group of transitional constituents are needed as an intermediary step. Like in Yemen and in Tunisia, a distance from politics should be signified to them by the Revolution.

Such a council’s primary task would be the preparation of a constitutional convention. But it could also have another no less important task: to ensure that nonviolence, and the basic universal principles on which all the revolutionaries came together, are preserved by whomever is considered meanwhile to be a ‘transitional government’ in the country. As in Egypt and Tunisia, those who have set themselves as interim presidents, prime ministers and commanders in chief have no popular legitimacy. They must be kept in check, and this is where a transitional constituents’ task would be important.

This also explains the nature of a group of transitional constituents. In Egypt, the judiciary has a long history of standing up to the diktats of Mubarak and his predecessors, Sadat and Nasser. This is an old tradition, and most people recall special moments when courageous and principled judges resigned, were dismissed, or prevailed against the authority of the ruler. These are the jurists needed to lead the transition. They are the natural constituents. Because they have no official executive task, they can check any measure taken by people in power, for instance in Egypt the unacceptable continuation of bloggers’ arrests on account of criticizing the army, the scandalous virginity tests, and the continued use of tear gas and bullets to meet nonviolent demonstrators. They can also ensure that the army and the police in such instances where sectarian strife, like the burning of churches in Egypt, requires the deployment of troops, can be enjoined to intervene. It is the normal task of the judiciary to ensure that any brutality, by the government or by extremists, is kept in check. The former dictators had found ways to stack the top judiciary with their own yes men, and to create special and military tribunals to bypass the established judiciary. This can now all be put behind.

Yemen has a slew of respected judges who can oversee, together with leading jurists from academia and practice, such a transitional constituents’ council, including representatives from the revolution amongst the youth and women. A key guarantee of the success of the revolutionary ideals rests on the fact that any member of such a transitional council would forfeit his or her right to run for politics until some time has passed between the end of their work in the council and their appointment or election to a governmental position.

Chibli Mallat, a lawyer and law professor, is Chair of Right to Nonviolence, an international NGO based in the Middle East.

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