Three Recent Decisions of the Yemeni Supreme Court

Abstract

DESPITE A RICH history, beginning with the Ottoman constitutional movement in the latter part of the nineteenth century and that of Qajar Iran at the beginning of the twentieth, Middle Eastern constitutions have a propensity to turn into dead letters. Unless and until constitutional watchdogs begin to protect the rights of citizens and subjects in a manner compatible with the generous display of constitutional liberties and entitlements in the supreme texts, the rule of constitutional law will be constrained by the needs of contemporary decision-makers. The absence of constitutional protection results from the combined legacy of historical pressures (which, in the twentieth century, undermined the liberal experience) and the noted absence of any influence of the American legal tradition. Whether in the British tradition of parliamentary sovereignty or in the French tradition of a supreme Civil Code, the colonial experiment in the Middle East left behind as its legacy a judiciary that was powerless to assess the legality of a statute in terms of the supreme law of the land. Constitutions, where they exist, serve to regulate the operation of non-judicial institutions and are important only to the extent of providing a general scheme of executive and legislative power, as well as offering a measure of legitimacy in times of crisis. During the last decade, disparate and seemingly unrelated factors have converged to remove the constitutional texts from their ivory towers of ineffectiveness in various Middle Eastern countries, and new independent judicial bodies have been entrusted with the responsibility of protecting and implementing the previously innocuous fundamental texts. Two Middle Eastern countries have established independent judicial bodies with constitutional competence. The first, and most successful, is the Egyptian Supreme Constitutional Court (al-mahkama aldustariyya al-'ulya), introduced by the Constitution of 1971 and effectively established in 1980. At nearly the same time, the Iranian Constitution of 1979 stipulated that all legislation must be in conformity with Islamic law and with the Constitution and created a Council of