10/17/2019
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Judicial independence under 1960 Constitution

by Mohamed Issa Trunji
Wednesday, April 17, 2019

Marco Lombardo, a Venetian man of learning, speaking to Dante in Purgatory asked the Poet; …”Le leggi son, ma chi pon mano ad esse” (There are laws, but who implements them) (Divina Commedia, Purgatorio, Canto XVI)

Justice in Somalia during the period immediately after independence has been largely administered with a high degree of independence. Judges, with there foreign national component, have generally exercised their functions, free from political influence, and the “state authorities have largely refrained from interfering in the court decisions” (P. Contini, 1966) The Judicial Review exercised by the Supreme Court in relation to a number of key government administrative actions, epitomizes the degree of independence and professional competences the Judiciary displayed prior to the Military Coup d’état in 1969.

The Constitution provided that “Administrative acts contrary to law…may be invalidated on the initiative of the interested parties in accordance with the provision of the Constitution” (article 59) The law on the Organization of the Judiciary (Ordinamento Giudiziario 1962) provides that the Supreme Court shall have jurisdiction over “petitions against final decisions of the Public Administration” (Article 5(3) (b)

 Administrative acts broadly fall under two categories: (a) acts which are not final and (2) final acts. The first category includes acts against which the party aggrieved by the act should make recourse to the authority hierarchically superior to the authority issuing the act, before going to the Supreme Court. Petitions to the Supreme Court against Public Administration acts are not admissible unless the decision of that authority is notified to aggrieved party or unless the time limit (30 days) prescribed by law for that authority to give decision expires, (art) In the second category, since no appeal through the proper channel is provided, the Public Administration act is final, and consequently, the aggrieved party is allowed to file directly a petition to the Supreme Court.

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Here are selected decisions in which the Supreme Court has annulled acts of the administration where it found that they were contrary to law.

1.     Ahemed Mudde Hassan and others v. The Minister of Interior (Supreme Court Full Bench, Judgment of March 7, 1964) The local Council of Mogadiscio, which has been elected, following the municipal elections on November 26th November, 1963, met for the first time on January 2, 1964, and elected by lot Ahmed Mudde as its Mayor. On the same day, the Minister of Interior issued a decree (Ministerial Decree No. 9 of January 2, 1964) dissolving the Council on the ground that, having chosen as Mayor the person who had served in the same capacity during the previous administration, which has been dissolved in 1962 on the ground of ‘serious administrative deficiency and irregularities’, the new Council gave no assurance of being able to perform its functions. Article 44 (1) of the Local Administration and  Local Election Law provides that , “where a Council cannot perform its functions or persistently makes default in performing the duties imposed on it by law, or exceeds or abuses its powers, the Ministry of Interior may, by decree dissolve the Council”.

The Constitution of the Somali Republic of 1960 provided that “Administrative acts  contrary to law, may be invalidated  on the initiative of the interested party in accordance with  of the provision s of the Constitution” (Article 5 (2)..Constitution)

The Mayor and a number of Councilors petitioned the Supreme Court for the annulment of the Minister’s decree. The main question on merit that the Supreme Court had to consider was whether the power vested in the Minister under Art. 44(1) of the Local Administration and Local Elections Law was properly exercised by the Minster.  The Court held that the impossibility should be evaluated a posteriori, whereas the grounds stated in the decree were based on a priori judgment of how the Council would perform its functions in the future. Accordingly, the Supreme Court annulled the Minister’s decree, and the same Minister reinstated the dissolved Local Council. “Considering that the government attached much political importance to the dissolution of the Mogadiscio Council, this Supreme Court decision and its immediate implementation are a significant example of application of rule of law in the Somali Republic” (P. Contini, 1969) “The impartiality of the court and the readiness of the part of the administration to carry out the directives of the Supreme Court are indeed the conditio sine qua non of the Rule of Law in a free society”, comments another legal expert. (Haji A.N. Noor Muhammad, 1966)

 

2.     Haji Mohamed Hussein and others (Supreme Court Judgment of July 9, 1964)

During vote counting operation relating to the political elections of 1964, the Chairman of the electoral Central Office noticed that in one of the electoral sections of the district of Merca, (Polling Station N. 20) the number of votes had been 395, and not 695 as shown in the record, and that the 300 additional votes, not lawfully cast, had been assigned to the Somali Youth League (SYL) i.e., the ruling party (P. Contini, 1969) Because of this irregularity, the SYL received a slightly higher number of votes than Haji Mohamed Hussein, the leader of the opposition party, the Somali Democratic Union (SDU). The Chairman of the Electoral Central Office had to decide whether to subtract the 300 votes from the total cast for the SYL in the Merca district, which would have brought about the election of the opposition candidate, or set side the electoral results and call for new elections in the whole district. The latter action was followed.

Haji Mohamed and his party fellows appealed to the Supreme Court claiming that, under the political elections Law, the Chairman of the electoral Central Office had no authority to set aside the elections for the district.

The Supreme Court held that the Chairman of the Central Electoral Office had no other power except to correct the results of the counting by subtracting the 300 invalid votes assigned to the SYL. On this ground the court annulled the Chairman’s decision and directed him to allot one seat to the SDU, instead of the SYL.(Supreme Court Judgment of July 1964)The Court further directed the Chairman to carry out the above measures within two days from the date of the publication of the judgment. The Chairman carried out the directives of the Supreme Court within the prescribed time-limit. (Haji N.A. Noor Muhammad, 1966) and resulted in seating in the National Assembly one of the most militant opponents of the government.

3.     Societa’ Agraria Coltivatori Agricoli (S.A.C.A.) v. The Minister of Industry and Commerce and La Societa’ Agricola Somala (S,A.S.). (Supreme Court Full Bench, Judgment of April 30, 1966)

This wais a case involving important financial interests and touched also upon the question of whether foreigners were entitled to enjoy the constitutional right of economic initiatives in the same degree as citizens. The Minister of Industry and Commerce had issued a decree granting to Societa’ Agricola Somala (S.A.S) an exclusive license to export of bananas to the countries of the Persian Gulf for a period of three years. Societa’ Agraria Coltivatori Agricoli (S.A.C.A.) contended that, while the export of certain products was subject to license, bananas were not included among the products specified in the regulations issued under the law on Foreign Economic Transactions. It was argued therefore that, the decree granting S.A.S. an exclusive license to export bananas was illegal.

The State Attorney , (Avvocato Erariale) on behalf of the government, maintained  that the action of the Minister was justified  on the ground that article 14, paragraph 2, of the constitution and certain provisions of the of the law on Foreign Economic Transactions gave  the Ministry the power to apply those provisions with discretion according to the spirit of the law.

The Supreme Court held that Article 14 of the constitution could not be construed as granting any discretion to the Ministry but merely enabled the Legislature to make laws on the subject. The Court observed that the law on Foreign Economic Transactions provided that restrictions and prohibition may be imposed in the national interest and the purpose for which they may be imposed had been enumerated in the law. The Ministry’s decree did not mention any of the purposes specified in the law and the decree did not, therefore, appear to have been issued is the national interest, but as an unconstitutional privilege.

It was also argued on behalf of the government that the right to economic initiative guaranteed by Article 14, paragraph 1, of the constitution applied only to citizens, and not to foreigners The court, observing that the question of citizenship was not relevant in respect of a juridical person, rejected this contentions and decided that the decree of the Ministry of Industry and Commerce was illegal 

Dr. Haji N.A. Noor Muhammad, a veteran Indian jurist, who served as Vice-President of the Supreme Court of the Somali Republic first, and then as Legal Advisor to the Prime Minister of Somalia later, praised the achievements of the Somali Judiciary in his own words “The Court has risen above party or political considerations and has not hesitated to annul the acts of the administration where it found that they were contrary to the law” (Haji N.A. Noor Muhammad, 1966)

A new face in the Supreme Court  

Towards the end of 1968, and a time when the 1969 political and municipal elections were drawing closer, a Somali Judge was appointed as President of the Supreme Court. He replaced Judge Aldo Peronaci; a well respected Italian Judge who, in many instances, clashed with Prime Minister Egal over the concept of judicial independence from the Executive. Like many other expatriate Judges, the SYL government saw Peronaci as a neutral Judge, unlikely to toe the government’s line, and with no interest to favour one political group against another. Many believed that he was removed before the elections of March 1969 to spare the SYL government from being embarrassed over judicial decisions on election results which might not satisfy the ruling party. Around the same time, the justice administration lost the valuable services of Judge Haji Noor Muhammad who moved to the office of the Prime Minister as legal Advisor.

In 1969, under the chairmanship of the newly appointed Somali Judge, the Supreme Court, overriding the previous decision in connection with the elections in 1964, rejected all petitions challenging decisions of the Central Electoral Office and the proclamation of final results by the Chairman of said Office on the ground that they were not administrative acts in respect of which the Supreme Court had jurisdiction under article 94 of the constitution. “The soundness of this decision is open to question”, commented Dr. Haji N.A Noor Muhammad. The Supreme Court declared also inadmissible all appeals filed by the opposition parties in respect of violations of provisions of the electoral law attributed to officials in charge of handling the conduct of the elections. (Judgment delivered by Abdul Rahman Sheikh Ali. For more details of the Supreme Court ruling, vide Somali News, February 28, 1969)

The most controversial case among the numerous electoral appeal cases was the one filed by the Popular Movement for Democratic Action Party (PMDA), widely known as Dabka, against the non-acceptance of its list of candidates in the electoral district of Bur Hacaba where an unscrupulous District Commissioner refused to accept the list in clear defiance of the law.

The Military Junta who waged a Coup d’état in Somalia, suspended the above-referred Judge from the service in November 1969 and placed him under arrest “pending unspecified criminal case against him”


M. Trunji
[email protected]

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