a genuine attempt to guard against theocracy and absolutism ... Those who laid down its basic tenets and rules knew that to guarantee the efficacy of the constitution, they had to pay regard not only to democracy as the governing principle of our political life, but also to human rights. Hence, principles were inserted to deal with basic rights of citizens, the separation of powers, the prescribed referendum and the steps that need to be followed if the House of Representatives is to be dissolved under dire circumstances, the basis for amending the constitution, and other safeguards such as in the judicial sphere.¹

In its most important aspects, the unified constitution was very similar to that adopted by the YAR in 1971. Both, for example, provided for a single-chamber parliament and a Presidential Council. Comparison of the two documents shows that the drafting committee used the northern constitution as their model, amending, adding and deleting where necessary. The resemblance was particularly close in the sections dealing with the organisation of government, though elsewhere there were a few small gestures towards the south, including a brief chapter on the social and cultural foundations of the state. There were also subtle but significant differences between the opening paragraphs of the old northern and southern constitutions and the new one. Article 1 of the new constitution emphasised the unity and territorial integrity of Yemen in a way that neither of the earlier constitutions was able to do, and in the process made separatism an infringement of one of the fundamental tenets of the new state.² One should also note that there was no place in the new constitution for the Marxist verbiage of the old south, or for the old northern idea that a parliament was merely "consultative":

NOTE: In the examples above, and in those that follow, significant differences are highlighted in italics. Numbers in brackets refer to articles in the respective constitutions.

The reference to Islam was also subtly changed: the north had previously declared itself an "Islamic state" (implying strict application of Islamic law, perhaps with connotations of theocracy) but the new state would simply be part of "the Islamic world". The next two clauses in the new constitution also dealt with religion:

In all three cases Islam was considered the religion of the state, though in the case of the PDRY this had not been a matter of prime importance - hence its relegation to Article 47 and the additional statement that other religions were allowed.

Islamic (Sharia) law had not been mentioned in the PDRY constitution and Article 3 of the unified constitution was an attempt to compromise between the relative secularism of the south and the idea prevalent in the north that the Sharia should be the source of all laws. The form of words chosen for this article of the unified constitution is used by several other Arab states (Egypt, for example) and means that legislators can at times draw on laws and legal concepts from non-Islamic states. The form previously used by the YAR - omitting the word "principal" - tends to weaken democratic processes because it gives considerable power to unelected religious scholars and can sometimes amount to the right of veto if they decide that a proposed law is not based on Islamic teaching. Without doubt, the new Article 3 was the most controversial sentence in the entire constitution. ³

The contrasting approaches of north and south can also be seen in the text of their respective laws, which in the north conventionally began with the bismillah formula ("In the name of God") while those of the south began: "In the name of the people". As a compromise, after unification, neither phrase was used. Similarly, the religious requirement for membership of the Presidential Council, to be "well conversant with affairs related to the Sharia, of good behaviour and conduct, upholding Islamic rites" was removed. ⁴ A new form of constitutional oath was also adopted which, although monotheistic, was not specifically Islamic:

PARLIAMENT

As in the former YAR, the new constitution provided for a single-chamber parliament with a fixed term of four years. Whereas the previous northern parliament had been composed of 159 members "freely and democratically elected" plus up to 20% appointed, the new parliament had 301 members⁵, all of whom were to be elected "in a secret, free and equal vote".

The change of name from Consultative Council (Majlis al-Shura) ⁶ to House of Representatives (Majlis al-Nuwwab) was significant, indicating that the new parliament was to be much more than a consultative or advisory body: "It shall enact laws, outline general state policy, and the socio-economic development plan, and approve the government budgets and final accounts." ⁷ Examination of the corresponding articles in the YAR and unified constitutions illustrates the change that had taken place. Parliament was no longer "the supreme legislative body" (implying the existence of others) but "the legislative authority". Such terms as "supervise" and "recommend" were replaced by "direct" and "control"; the government was no longer merely permitted to seek a vote of confidence from parliament for its policies, but obliged to do so:

The power of the president to amend or block draft legislation was severely curtailed. Under the YAR system, the president (as chairman of the Republican Council) was entitled to return bills to parliament with an "explanatory note" requesting changes. Parliament was then obliged to hold a second debate and the unamended bill could not become law unless approved by two-thirds of the members. ⁸ Under the new constitution the Presidential Council (not its chairman acting alone) could seek a review of legislation approved by parliament, but if parliament approved it a second time by a simple majority, the bill would automatically become law. ⁹

The parliaments of the both the YAR and the unified state enjoyed a number of privileges intended to ensure their independence. The house was entitled to make its own procedural rules, within the limits of the constitution;¹⁰ it was entitled to meet two weeks after the declaration of election results, whether convened by the president or not; ¹¹ members could not be penalised for their voting patterns or any matters they raised in the house (except in the case of defamation);¹² they could not be investigated, arrested, imprisoned or punished without permission from the house, unless caught in the act of committing a crime.¹³ In the unified state, however, other privileges which had existed under the YAR constitution were reinforced and some new ones were added. In the YAR, for example, the president (as chairman of the Republican Council), had been empowered to dissolve parliament "by passing a resolution explaining the reasons for such action" and setting a date for fresh elections. The only safeguards in this process were that (a) parliament could not be dissolved a second time for the same reasons, (b) it could not be dissolved during the first 12 months after an election or during the last six months of the term of the Republican Council and (c) a dissolved parliament could resume its business if elections had not taken place by the date set.¹⁴ Under the unified constitution the procedures were so restricted as to make dissolution of parliament virtually impossible:

The Presidential Council may not dissolve the House of Representatives except under dire circumstances and only after holding a national referendum on the reasons for the dissolution. The decision to dissolve the House of Representatives must simultaneously call voters to elect a new House of Representatives within sixty days of the referendum date. If the Presidential Council's decision to dissolve the House of Representatives does not call for elections, or if such elections are not carried out within sixty days, the Presidential Council's decision is considered null and void, and the dissolved House of Representatives shall resume its responsibilities by the force of the constitution. If elections are held, the new House of Representatives must hold its first session within ten days of the declaration of the election results. The government must resign before such elections are held, and a provisional government will take its place until the first meeting of the new House of Representatives. Once the House of Representatives is dissolved, the new House of Representatives may not be dissolved for the same reason. In all cases, the House of Representatives may not be dissolved in its first legislative period. (78)

Other new provisions introduced in 1990 included:

1. The exclusive right of parliament to determine the legitimacy of membership in case of contested election results. (46)
2. The exclusive right of parliament to maintain order and security within the House, by means of a special guard force under the command of the Speaker. No other armed force was allowed to enter the House or take positions near its entrances except at the request of the Speaker. (47)
3. Protection of members of parliament from cancellation of their membership, except where disqualified by the membership conditions stipulated in the constitution. (66)
4. The right of parliament to establish a special committee to investigate any issue which is contrary to the general interest or to investigate the actions of any ministry, government agency, board, public/mixed corporation, or local council. All executive and special authorities were obliged to provide any information or documents required by the committee for this purpose. (70)
5. The right of every member to pose questions to the prime minister and other ministers on any matters falling within their responsibilities, and an obligation on the part of ministers to provide answers (73). Beyond this, every member had the right to interpellation of ministers. (75)

THE GOVERNMENT

The Cabinet, described as "the government of the republic" and "the highest executive and administrative authority of the state"¹⁵, was answerable to both parliament and the Presidential Council.¹⁶ In theory, the prime minister had a greater degree of independence from the Presidential Council than previously in the YAR, since his choice of ministers no longer needed the council's approval:

However, it appeared that approval of the Presidential Council might be needed before the Prime Minister could dismiss a minister:

If the Prime Minister finds that it has become impossible for him to co-operate with a member of the Cabinet, he may present the matter to the Presidential Council to decide the appropriate action. (113)

The Presidential Council also had the power (not previously granted by the YAR constitution) to suspend the Prime Minister or other ministers and place them under investigation because of the crimes or offences committed by in discharging their duties. This could be at the instigation of the council itself or of parliament, after a two-thirds vote.¹⁷ A collective resignation of the entire government would be brought about if (a) parliament withdrew its confidence, (b) the Prime Minister became unable to perform his duties, or (c) more than half the ministers resigned. (114, 115)

In terms of its functions, the cabinet was "responsible for the execution of the overall state policies in the political, economic, social, cultural and defence fields, according to the laws and regulations". The following were also specified:

a) In conjunction with the Presidential Council, to participate in preparing the broad outlines of internal and external policies.
b) To prepare drafts of the national economic plan, and the annual budget, and to organise and execute them, and to prepare the government's final statement of accounts.
c) To prepare the drafts of the laws and regulations for presentation to the House of Representatives or the Presidential Council according to the responsibilities of each.
d) To approve agreements and pacts before presenting them to the House of Representatives or the Presidential Council according to the responsibilities of each.
e) To take the necessary measures to guard the internal and external security of the state, and to protect the rights of citizens.
f) To guide, co-ordinate and review the activities of the ministries, the administrative apparatus, the corporations and boards, and the public and mixed sectors according to the law.
g) To appoint/dismiss senior government officials according to the law, and to define and execute the policies that aim to develop the technical manpower in the government organisations, and to train/qualify personnel according to the need of the country within the framework of the economic plan.
h) To follow up the execution of laws, and to guard the state funds.
i) To supervise, organise, and administer the monetary, credit and insurance systems.
j) To contract in/out loans within the overall policies of the state, and within the limits of the constitution. (109)

LOCAL AUTHORITY

The constitution provided for a system of local administrative units with governors accountable to (and controlled by) the cabinet. ¹⁸ The previous YAR constitution had stated that these "administrative units shall have local councils in which the affairs of the regions shall be administered in a democratic manner".¹⁹ The ambiguity of "a democratic manner" was clarified in the new constitution, which said:

Administrative units shall have elected local councils. The law stipulates the duties, authorities, power and rights of the local councils. The law further stipulates the procedures for electing local councils, their functional systems and financial resources, and their roles in preparing and executing the development plans. (118)

In fact this was a declaration of intent rather than a statement of reality, since no law setting out the procedures for local elections existed and during the first few years of unity no local elections took place.

THE PRESIDENCY

Collective presidency was a familiar concept in both north and south Yemen before unification. In the north, the presidency had been held by the Republican Council, "responsible for specifying the state's general policy and for supervising its execution."²⁰ Under the 1971 constitution the council consisted of between three and five members, elected by parliament.²¹ The members of the Republican Council then elected a chairman from among themselves, who became president of the state and Commander-in-Chief of the armed forces.²² Although the constitution described the chairmanship as "rotating"²³, it provided no mechanism for this, and in practice there was no rotation.

Between 1974 and 1978, the south had a similar body, the Presidential Council, consisting of between three and six members. These usually included the President (who acted as its chairman), the Prime Minister, and the Secretary-General of the party. As with the northern Republican Council, it had considerable powers, which included proposing laws and initiating parliamentary debates, fixing dates for elections and nominating members of the cabinet, as well as controlling military, judicial and senior civil service appointments.²⁴ In 1978 the Presidential Council had been abolished, and replaced by the 11-member Presidium of the Supreme People's Council. As before, the chairman of this body was the head of state. Its importance, however, was much diminished as state power shifted towards the president and cabinet.

The structure adopted for the unified state was similar to that abandoned by the PDRY in 1978, and almost identical to the one which had existed in the YAR since 1971. There was to be a five-member Presidential Council elected, as before, by parliament for a period of five years. To remove the possibility of candidates being elected on a minority vote, a new balloting system was introduced which required a two-thirds majority in the first round of voting or an absolute majority in subsequent rounds. For a nomination to succeed, candidates had to have the support of 25% of the House.²⁵ A further innovation was that members of the Presidential Council were forbidden from engaging in any business activity during their term of office, whether directly or indirectly, nor were they allowed to buy or rent state property, or to sell or lease their own property to the state.²⁶

As in the old YAR, the members of the Presidential Council were to elect a chairman from among their number, but an effort was made to restrict his power. The statement in the 1971 constitution that "the chairman of the council is the president of the state and commander-in-chief of the armed forces"²⁷ was omitted from the new one. Other powers of the chairman were subtly modified; all pointed away from the idea of an individual head of state and towards a collective presidency:

Significantly - and this became a source of conflict later - there was no provision in either constitution for the post of deputy chairman of the council. The fact that this title was conferred on Ali Salim al-Baid was purely a matter of consent; it had been agreed under the Sana'a accord but there was no constitutional basis for it whatever.

The powers of the Republican Council in the old YAR had been defined mainly in general terms as "specifying the state's general policy and supervising its execution"²⁸. The three specific powers assigned to it were (i) to appoint senior civil servants and military officials "as prescribed by law and in accordance with the nomination by the appropriate quarters";²⁹ (ii) to accredit foreign diplomats³⁰ and (iii) to confirm death sentences or commute others in cases not involving sharia punishments³¹. Under the unified constitution, the Presidential Council's powers were more specific and numerous, but also more restricted. The list bore a striking resemblance to the powers assigned to the Presidential Council of the PDRY in 1970, suggesting that on this point at least the southern view prevailed:

The power to deal with emergencies at any time by issuing decrees, which had been granted to the Presidential Council of the YAR, was restricted under the new constitution to periods of parliamentary recess or dissolution. In both cases, subsequent ratification by parliament was necessary.³² The arrangements under which the Presidential Council could declare a state of emergency were also clarified:

In many ways the 1990 constitution was a wise document. It sought to inhibit autocratic power and to provide a framework for the development of a modern, liberal, democratic state. Moreover, it did so in a Yemeni context, by building on existing, familiar institutions without the need to import foreign ideas. In the process, as the foregoing analysis shows, it borrowed heavily from the old northern constitution - especially in terms of the new state's structure and functional relationships. The south made a contribution in less crucial areas, for example, in some aspects of the document's social vision. A stronger northern influence was probably inevitable, since the old southern constitution embodied concepts which, with the abandonment of Marxism, had become out-dated. Potentially that benefited the northern leaders in that they had a better grasp from the start of how the new constitution might work in practice - though there is no evidence that its effect was particularly significant.

That raises the question of whether the unification settlement, taken as a whole, unduly favoured one side or the other. YSP leaders later claimed that it did, blaming their plight on northern "hegemony". This reaches the fundamental problem of how power can be fairly apportioned when two sovereign states voluntarily merge into one, and how the apportionment can be achieved democratically in the face of such huge disparities in population between the two partners.

At one extreme there is the purist democratic view that the will of the majority must prevail - which in this case would have allowed the north to become dominant by virtue of the overwhelming size of its population. The disadvantage of that is that a minority partner is unlikely to enter such an arrangement voluntarily if it knows what the outcome will be. Thus "pure" democracy could be counter-productive in terms of achieving unity. At the other extreme one might propose sacrificing the will of the majority and acknowledging that each partner has individual rights which must be preserved in order to make unification acceptable to the minority - though not to the extent that it then becomes unacceptable to the majority.

What actually happened in Yemen lay somewhere between these two extremes. The union began as an almost (but not quite) equal partnership which treated the south generously but allowed the north to maintain the upper hand by a slender margin. Thus the Presidential Council was apportioned 3-2 in favour of the north/GPC with Salih holding the presidency and al-Baid the vice-presidency - a post created specifically to placate southern interests. In the 34-member cabinet, half the seats were allocated to the north (16 for the GPC, one for the Ba'ath), and half to the south and the YSP. The northern presidency was compensated, to some extent, by the appointment of the former southern president, Haidar abu-Bakr al-Attas, as prime minister. Several key ministries, including defence and petroleum, also went to the YSP. At a slightly lower level, balance was achieved by assigning southern deputies to northern ministers and vice versa.

The effect of this was to reassure the south and create a 30-month breathing space for political adjustment in which the YSP could either merge with the GPC or remain as a separate party and seek to extend its organisation in the north. In the latter case, if the YSP failed to make a political breakthrough in the north, the first parliamentary elections fought under constituency boundaries defined on a population basis would see the YSP shrunken to the permanent status of a minority party. The GPC, on the other hand, could afford to be generous because it knew these arrangements were temporary and would probably not outlast the transitional period. Although the GPC's advantage at this stage was only a small one, it was well placed to tilt the balance later - decisively in its favour. In the meantime, the GPC made prudent dispositions in all the most strategic areas of state to ensure that in the event of conflict it could rapidly assert control over the northern part of Yemen, if not the whole.

© Brian Whitaker