Yemeni party law: a comparative perspective
Doctoral Candidate in the Department of Politics, University of Exeter, England.
THE UNIFICATION of the two former Yemeni states to form the Republic of Yemen in 1990 has brought about a space of unprecedented political freedom and diversity. The transformation was introduced from above by two regimes, which had shown only a limited interest in democracy in the past. Within a few months of unity more than forty political parties had sprung up.
Parties and Political Organisations Law No. 66 for 1991 was drafted and approved only by the two former ruling parties, the General People's Congress (GPC) and the Yemeni Socialist Party (YSP). The law was to organise and regulate the formation of parties in Yemen. However, the degree of political freedom that developed in Yemen far exceeded that which was intended. The GPC and the YSP intended to operate a controlled democracy. Because of the great differences between them, they were unable to agree on government action. Therefore, restraints imposed by the law were often not applied. Thus, both the GPC and the YSP tried to use the new emerging parties as puppets and to direct them against each other. Eventually, only twenty-one political parties contested the first parliamentary elections in 1993, and only eight parties won seats. It was only after the 1994 war that the law regulating parties was put into effect, after the YSP was stripped of its power. It then became possible to enforce the law. Consequently, the number of licensed political parties decreased to fifteen and among them only four parties won seats in the 1997 elections.
For the purpose of elaborating the different aspects of party law in Yemen, it will be compared with party laws in different democratic systems. Although Yemen is a nascent democratic country, it passed its party law in 1991, not very long after some established, though not continuous, democratic systems legislated theirs. For example, Venezuela passed its party law in 1965, Germany in 1967, Finland in 1969, Austria in 1975, Spain in 1978, Turkey in 1980, Argentina in 1982, Poland in 1990, and Israel in 1992.1
Comparison of party law in Yemen's newly created democratic process with the more advanced experiences of the above-mentioned countries can be justified on three counts. First, Yemen claims to be democratic. It should not therefore be excepted from such comparison in order to evaluate the degree of credibility of Yemen's democracy. The second point is that all countries examined passed their party laws in proximal periods of time. Finally, these countries, apart from Israel, experienced interrupted democracy by a period of authoritarian polities.2 Inspite of differences; there are some similarities that justify comparing the Yemeni party law with those passed in the mentioned countries.
The articulation of rules pertaining to the functioning of parties usually evolves together with the development of other democratic institutions. Also, legislation of party laws in some established democracies reflects the fears of past experience and of legislatures occupied by parties who can threaten the democratic order.3 By contrast, in Yemen the formation of political parties precedes the legislation of party law.4 Therefore, political parties perceive the law as a restraint and they treat it with suspicion. Moreover, the law was drafted and approved in 1991 by the two ruling parties, who themselves had no democratic legacy.
In addition, as Dan Avnon points out, when a legislature creates rules regulating party activities, at the same time it grants the judiciary the authority to interpret the rules.5 In Yemen a party is granted legal status by the approval of the Committee for the Affairs of Parties and Political Organisations (CAPPO), which consists of the Minister of Legal and Parliamentary Affairs as chairman, the Ministers of the Interior and Justice as members, and four non-partisans who must be either retired judges or lawyers.6 So, there is a veto placed on a party's legality before it can appeal to the judiciary on equal footing with the ruling party.
The following analysis develops according to classification of types of legislation pertaining to political parties as well as discussion of the rationale behind legislation dealing with political parties.
Definition of a party
THE LEGAL definition of what a political party is varies from polity to polity. Some emphasise the representative function of parties, others concentrate on the participatory function, while others give priority to legal-technical terms which fulfil registration requirements.7
The German law on political parties emphasises both the participatory and representative roles of parties:
Parties are associations oriented to the formation of political opinion at Federal or Land level and to participation in the representation of the people in the Federal Parliament (Bundstag) or Regional Parliaments (Landtag).8
Nonetheless, the law deprives any association of its status if it does not participate for a period of six years in a federal or regional election.
Under Venezuelan party law parties are:
Groups of a permanent character whose members agree to participate by legal means in the political life of the country. They function according to programmes and norms which are freely adopted by themselves.9
This law shows the voluntary nature of the associations and emphasises the participatory element concretely.
The Finnish party law confines its definition to a purely legal framework:
A party is a registered organisation that is listed in the registry of parties controlled by the Ministry of Justice.10
The Finnish law, however, stipulates that a party that does not succeed in electing MPs to parliament in two consecutive elections will be removed from the registry. This reveals the importance of the representation function of parties in Finnish parliamentary democracy.
The Israeli party law defines a party as:
A group of human beings that associate to promote political or social goals in a legal way and to bring about their representation in the Knesset by elected representatives.11
This law emphasises both the participatory and representative functions of the party.
The Yemeni law of 1991 governing parties and political organisations contains the following definition:
Party or political organisation: any group of Yemenis organised according to common principles and objectives based on constitutional legitimacy, who exercise political and democratic activities with the aim of achieving the transfer of power or sharing thereof using peaceful means.12
The point to note here is the stress on democratic norms and peaceful transfer of power, which is derived from Yemen's political history. Such a statement implicitly addresses the participatory character of parties. The function of representation was elaborated in Article 3 of the same law, which granted parties a right of existence that should not be cancelled, limited or restrained, and no measure may be taken to hinder the freedom of citizens to exercise such right.
THE REGULATIONS governing the registration of parties vary from one political system to another. Historical experience, the consolidation of democracy and its norms, and the culture of a given country all contribute to determining the degree of the law's strictness in this respect.
The laws examined require applicant parties to provide a list of registered voters who support the application. The Finnish law stipulates a list of at least 5,000 voters in support of the registration; in Denmark the requirement is 1/175 of the actual voters cast in the preceding elections; in Venezuela it is at least 0.5% of the eligible voters; while in Israel a party needs 100 supporters as a minimum requirement for registration.
In Yemen, the registration procedure requires a party to provide an application signed by 75 founding members, verified in a court of law. The party also has to provide a list showing at least 2,500 members distributed across the country.13 These two conditions can be understood as an attempt to transcend Yemen's historical legacy. The stipulation that 75 founding members must sign the application might be to prevent the creation of a political party that may revolve in the orbit of the ex-royalists. Had that happened, as an anonymous observer notes, the ruler will be able to entice a number of the founding members to split the party and lay claim to its organs and assets.14 On the other hand, the stipulation of providing a list with 2,500 supporters distributed across the country is a pre-emptive step to avoid any potential secession through embracing a sectarian or regional standard for affiliation.
With regard to the norms governing registration, party law in most of the countries examined does not mandate the registrar to examine the party's political platform. However, providing the name of the party, a list of its official organs, the name of its mouthpiece newspaper, and the party by-laws are the minimum requirements for granting a party its legal status. Apart from Israel, most countries do not interfere in determining the contents of the by-laws in details. But the Israeli Law specifies the conditions for accepting new members, denying membership, the rights and obligations of party members, and a procedure that regulates candidacy.15 The Israeli legislature also mandates that each party has a central institution, which is a body that conducts party affairs and implements its decisions, and a regulating quasi-judicial body, which is responsible for the party's audit and acts as its inner tribunal.16
Similarly, Yemeni party law in this regard is complex and stringent. A party has to supply copies of its constitution, its political programme and details of the leadership structure. The law aims to define the principles and procedures in the establishment and activities of parties in the light of historical legacy, national security, and prevalent culture. First of all, the party must have rules that are in the accordance with the Constitution of the country and it must adhere to them.17 To protect sovereignty, party members must be Yemenis,18 parties must not be affiliated to foreign interests, and gifts and services from non-Yemeni sources are prohibited.19 These points were included in the law in part to abolish Saudi influence through its subsidies to certain political and social groupings, and to retain the government's leverage over the political parties through the official finance supporting system, as will be seen below.
In order to secure the general interests of security and stability, the law stipulates that all parties must not endorse the former regimes from the pre-republican era in the North or in the South. Also, they must not disrupt law and order by being involved in or instigating violence, or by using places of worship for political ends and propaganda.20 An additional condition that has been listed in the law to maintain social order in a traditional society is that a party must not be based on concepts contrary to Islamic precepts and values.21 The irony is that Islam itself is open to different interpretations and there are different schools of Islam that practise in different ways. So this condition is seen as a trap, which could be used as a pro or con, as if the legislator intended to create loopholes to be exploited according to different circumstances. Finally, the law emphasises the execution of democratic norms in the admission, promotion, withdrawal, suspension, and expulsion of parties' members. Conditions, therefore, must not be tailored with the intent of discrimination on the basis of sex, colour, racial origin, profession, or social status.22
Resources and financial provisions
THE REGULATION of party finance has received considerable attention in the party laws of most of the countries examined. Austrian party law devotes most of its provisions to this aspect.23 The German law also contains a detailed section on the public and private financing of political parties. The Finnish and Spanish laws establish the principle of public financing of political parties. The Polish and Venezuelan laws state obligations on parties to maintain detailed records of their incomes and expenditures. In Israel the Party Finance Law was passed twenty years before the party law and the financial accounting of all parties is subject to the State Comptroller's scrutiny and audit.24
In Yemen, the parties law determines the resources of a party, which include: subscriptions and contributions of members; subsidies allocated by the government; returns on the party's investments; and gifts and donations.25 The law, however, establishes restrictions that affect the smaller parties in particular. As already mentioned a party may not accept from non-Yemeni individuals or parties any gifts, merits, or services. It also would have to provide a detailed record of its financial affairs; this includes notifying the government of any single donation over 100,000 riyals (about $700) or multiple donations from a single source exceeding 200,000 riyals.26
Further measures to manipulate opposition parties in Yemen were set up through a biased state subsidy system. First, the sum of money devoted for subsidies was unspecified, which is a legal gap that can be exploited by the ruling party. Second, the distribution mechanism is such that 25 percent of the total subsidy would be shared equally by the parties represented in the parliament, with the remaining 75 percent divided in proportion to the share of votes obtained by each party at the elections. Third, parties that won less than 5 percent of the total vote were deprived of the state subsidy.27 This did little to help the smaller parties and aided the dominance of the bigger parties, who already possessed huge assets.28 Furthermore, the total subsidy granted to a party may not exceed the total amount of subscriptions paid by the party's members. If it does, the excess amount is transferred to the state treasury.29 Above all, the law stipulates that party resources must be dispensed only in the service of objectives mentioned in the party's by-laws. The party is required to keep records in accordance with proper accounting principles showing the revenues and expenditures and these records must be accessible under the request of state comptroller at any time.30
In the light of the modest heritage of democratic association in Yemen, subscriptions and donations contribute little to parties' revenue. Political parties in Yemen basically depend on state subsidies and on the financial support that a party's leadership can secure from different sources by different means.31 Opposition parties, therefore, are dependent to a great extent on state support.32 This indicates the weak structure of these political parties, their inability to mobilise people, and to secure adequate independent funds. In addition to the Yemeni political parties' own deficiencies, the law has added great burdens by imposing stringent conditions and restrictions that impede further development of political parties in civil peaceful space.
Penal provisions and sanctions
PARTY LAWS in all of the countries examined emphasise the adherence to democratic practices. The Austrian law is the exception, making no direct reference to this issue. Nevertheless, all party laws grant the state authority to ban a party if its activities constitute a threat to the democratic order. The political history and culture of a given polity is quite evident in this issue. The German, Spanish, and Venezuelan laws stress party adherence to democratic principles in conducting internal affairs, as well as their external actions as legally definable entities. The Polish and Israeli laws forbid activities that threaten democracy. For example, the Israeli Registrar (appointed by the Minister of Justice) has the authority to disqualify any party that does not conduct its affairs in accordance with democratic procedures.33 By the same token, the state's organ (CAPPO) in Yemen is authorised to file an urgent request with the relevant court to stop the activities of a party or disable its decisions if it commits any forbidden activities. The court must decide on the request within fifteen days, and the party has the right to appeal to the Supreme Court, which must release its final decision within ninety days.34 With regard to financing, the Finnish and Yemeni laws are the only ones that empower the state to withhold state funding from a party whose activities contradict financing regulations.35
WITH the exception of Finland and Israel, all of the countries examined had experienced a collapse in their democratic systems. This, however, illustrates only part of the scene, and the question remaining to be asked is why then countries that did not experience democratic turmoil have had their party laws? The prevailing political culture and historical evolution of a country may provide some of the explanation. The Israeli party law, for instance, prohibits any party that rejects the existence of the State of Israel as a democratic and Jewish State, which reflects the conflicts and fears prevalent in Israeli society.
In well-established democracies there is considerable congruence between social, economic, and political structures. There is also harmonious interaction between the legal framework and the prevalent values and norms. Such conformity evolves over time and becomes deeply rooted in society, providing a sort of balance that limits the excessive power of government over society. This popularly accepted legal-normative framework constitutes one of the most important conditions for the continuity and development of democratic order.
In Yemen, a combination of factors has influenced the passing of its party law. First, unification was concomitant with serious efforts to merge the two former ruling parties. The failure to achieve the merger resulted in the adoption of political pluralism in the hope that each side would mobilise political parties against the other.36 Second, financial difficulties created the urgent need for external loans and grants that pushed Yemen further toward the institutionalisation of its new democracy. The proliferation of political parties from the outset of unity calls for a well-defined legal framework to regulate the formation and activities of political parties. Rationality is quite evident in this aspect to secure national security and integration. Lack of democratic experience, a high rate of illiteracy,37 and the web-like nature of social relations all make it possible for the creation of parties either puppets working for foreign interests, or others either based on sectarian, provincial, or tribal interests. Thus, regulating political parties means prevent these outcomes and hence enhance national integration.
Third, the Yemeni party law is characterised by the juxtaposition of contradictory concepts, such as traditional and modernised aspects. The Western concept of democracy has been mingled with requirements dictated by the prevalent culture. For example, an emphasis on liberty exists side by side with an assertive statement that forbids any activities contrary to Islam. This, for example, according to the dominant interpretation of Islamic tenets, denies women tenure (curatorship).
Finally, the party law was tailored to consolidate the ruling party at the expense of the opposition. The registration procedure, financial regulations, and the role of CAPPO are examples of the restraints that produced, especially after the 1994 war, one dominant party that manipulated the whole democratic process.
Nonetheless, there are positive aspects in the law. The implementation of the law, in spite of its shortcomings, would lead to further evolutionary development. But the irony lies in the selective implications and interpretations of the law that distort the potential development of democracy and discredit the regime. Blame, however, is not to be laid on the regime alone, which reflects the nature of the society it comes from. In Avnon's words, "parties cannot be more democratic than the cultural norms prevalent in the system in which they are fighting for power".38 Therefore, a long process will be required by which evolve a credible democracy. This calls for a new educational strategy starting from the grassroots to overcome paternalistic values. In addition, the political parties themselves need a massive revision of their structures and functions, where in general the leaders of opposition parties are not more democratic than the ruler.
I would like to point out that I have used a considerable amount of material form Dan Avnon, 'Parties Law in Democratic Systems of Government', Journal of Legislative Studies, vol. 1, no. 2, Summer, 1995, pp. 283-300.
1. In some cases, the legislation of parties law comes as part of constitutional reform such as in Finland and Israel. In other cases, it comes in the context of the need to regulate party finance such as in Germany and Austria. In the cases of Poland and Yemen it comes as a part of the process of democratization.
2. In the case of Finland, it experienced a degree of political violence in the period between the two World Wars that threatened the democratic order. See Jan Sundberg and Christel Gylling, 'Finland', in Richard Katz and Peter Mair (eds.), 'Party Organization: A Data Handbook', (London: Sage, 1992), pp. 273-8.
3. For example, the Third Reich in Germany had occupied the Bundestag through democratic procedures.
4. Among the fifteen licensed parties in Yemen, nine parties were founded in the pre-unification era.
5. Avnon, Dan, 'Parties Law in Democratic Systems of Government', Journal of Legislative Studies, vol. 1, no. 2, summer 1995, pp. 283-300.
6. Yemeni Parties Law No. 66, 1991, Article 13.
7. For diverse definitions of parties, see Giovanni Sartori, 'Parties and Party System: A Framework for Analysis', (London: Cambridge University Press, 1976), pp. 56-67.
8. Section 1, 2 (1) (2) of the Law on Political Parties, dated 24 July 1967 (Federal Law Gazette 1, 773), quoted in Avnon, 'Parties Law...', p. 290.
9. 'Law of Political Parties, Public Meetings and Demonstrations', Title 1, Chapter 1, Article 2, Official Bulletin 27725, 30 April 1965. Quoted in Avnon, 'Parties Law…', p. 290.
10. Section 1 of the Parties Law 1969. Quoted in Avnon, 'Parties Law…', p. 290.
11. Israeli Parties Law, 1992, Section 1.
12. Yemeni Parties Law No. 66, 1991, Article 2.
13. Ibid., Article 14.
14. Anonymous article, 'Will the Opposition Political Parties Stay in Business?' Yemen Times, 19 February 1996.
15. The Israeli Parties Law, 1992, Article 14.
16. Avnon, 'Parties Law…', p. 291.
17. Yemeni Parties Law No. 66, 1991, Article 9.
18. Ibid., Article 10.
19. Ibid., Article 8 (VII).
20. Ibid., Article 33.
21. Ibid., Article 8 (I and V).
22. Ibid., Article 9 (d and e).
23. See Melanie Sully, 'Political Parties and Elections in Austria', (London: Hurst, 1980), pp. 154-55.
24. Avnon, 'Parties Law…', p.294.
25. Yemeni Parties Law No. 66, 1991, Article 17 (a, b, c, and d).
26. Ibid., Article 17 (d).
27. Ibid., Article 9 (b).
28. For example, on the basis of the 1993 election results, the General People's Congress was entitled to 36% of the total amount of state subsidy, the Yemeni Socialist Party to 26%, Islah to 23%, and another five small parties to 3% each. This was exacerbated in the 1997 elections, the General People's Congress was entitled to 71% of the total amount of state subsidy, Islah to 16.5%, and Ba'ath and the People's Nasserite Unionist Party to 6.25% each.
29. Ibid., Article 20.
30. Ibid., Article 24.
31. In contradistinction with the law, some political parties, such as Islah, have received financial support from external parties. However, it has been observed that the great part of support is personified and granted to party leader in name. This reflects the personification of politics that enables the benefactor to exert a great influence on the party's policies.
32. It has been seen that the Yemeni Socialist Party was crippled after it was stripped of its power after the 1994 war, when it was deprived of access to state resources that were at its disposal when it was in power.
33. Avnon, 'Parties Law…', pp. 292-3.
34. Yemeni Parties Law No. 66, 1991, Article 34 (b).
35. See ibid., Article 22; Jan Sundberg and Christel Gylling, 'Finland', in Richard Katz and Peter Mair (eds.), 'Party Organization: A Data Handbook', (London: Sage, 1992), pp. 273-8; and Herbert Alexander (ed.), 'Comparative Political Finance in the 1980s', (Cambridge: Cambridge University Press, 1989).
36. The rivalry between the GPC and the YSP created maneuvering space for other parties to develop. For details on this issue see Joseph Kostiner, 'Yemen: The Tortuous Quest for Unity, 1990-94', (London: The Royal Institute of International Affairs, 1996); and Ahmed A. Saif, 'The Politics of Survival and the Structure of Control in Yemen, 1990-97', MA Dissertation, University of Exeter, 1997, UK.
37. Illiteracy reached 57%; see 'The 1994 Census', Central Organization for Statistics, Ministry of Planning, Republic of Yemen.
38. Avnon, "Parties Law…", p. 297.