Montesquieu, the noted political philosopher of France, had called for the principle of separation of powers, saying that the state has three powers: the legislature, the executive and the judiciary. The legislature makes laws, the executive enforces them, and the judiciary oversees their application.
The wisdom behind this principle is that its application constitutes a protection of the public liberties, and safeguards the rights of individuals; that is because one power would restrict the other (each branch of government has powers that it can use to check and balance the operations and the power of the other two branches), thus ensuring protection of freedoms and rights of the people.
Beside the principle of separation of powers there is another important principle which is the principle of legality. Legality means that the ruler and the ruled must abide by the provisions of the law on an equal footing. They all must respect the law and comply with its rules, as it regulates the interrelations between the powers of the state as well as the relations between these powers and the individuals.
It also determines how the individual should behave in confronting these powers and in confronting other individuals. If an individual litigates a public authority or another individual and takes his claim or dispute to a court of law, then the rule of law shall decide that claim or dispute. Thus tranquility and security shall prevail in the society, and all citizens will enjoy living in such an organized society, as justice brings about security and trust in the same.
The independence of the judicial authority or the judiciary is a civilized shift made by the modern state in the field of legal thought, after administration of justice had been vested in rulers and religious leaders; and it has thereafter become a sacred principle due to the lofty status of the judiciary in different societies around the world.
Justice is always associated with the independence of the judiciary. People used to regard the judiciary as an impartial authority ever since they started to resort to it seeking justice.
The concept of independence of the judiciary began to crystallise and it has been reflected in the declarations of human rights which stated that safeguards should be put in place to protect the judges and the principle of independence of judges against any violation. Constitutions of the civilised world continued successively to provide for the principle of independence of the judiciary, and have surrounded it with an aura of respect and reverence.
The Constitution of the State of Qatar has embraced the principle of separation of powers as it stipulates in Article 60 that:
The system of Government is based on the separation of powers and shall be exercised in collaboration with the manner specified in this Constitution;
In Article 61 that:
The legislative Authority shall be vested in Al ñ Shoura Council as prescribed in this Constitution;
In Article 62 that:
The Executive Authority shall be vested in the Emir and he shall be assisted by the Council of Ministers as specified in this Constitution; and
In Article 63 that:
The Judicial Authority shall be vested in courts of law as prescribed in this Constitution; and court judgements shall be pronounced in the name of the Emir.
Due to the prestige of the function of the judiciary and the message of justice, most of the constitutions of the civilized world were keen to consider the judiciary as an authority independent of the other powers of the state and as a manifestation of sovereignty; they also attached great respect and value to the principle of independence of the judiciary.
The Constitution of the State of Qatar has emphasized the importance of this principle as it stipulates
In Article 129 that:
The supremacy of law is the base of rule in the State. The honour of the judiciary, it is integrity, and impartiality of judges are a safeguard of rights and liberties;
In Article 130 that:
The judicial authority shall be independent and it shall be vested in courts of different types and grades. The courts shall make their judgments according to the law;
In Article 131 that:
Judges are independent and they shall not be subject to any power in the exercise of their judicial functions as provided by the law and no interference whatsoever shall be permitted with court proceedings and the course of justice;
In Article 134 that:
Judges shall not be subject to removal from office save in cases specified by the law. The said law shall also specify the rules and disciplinary matters applicable to judges; and In Article 135 that:
The right of litigation is inviolable and it shall be guaranteed to all people. The law shall specify the procedures and manner of exercising this right.
The principle of independence of the judiciary is considered the strongest safeguard of human rights and of freedoms and rights on citizens. That is because under this banner an individual may be tried only by his ordinary judge i.e. the one who has already been designated by the law;
Ordinary courts shall not be stripped of their jurisdiction;
No exceptional judicial authority shall be set up;
Court judgements shall be respected and may not be amended or their execution be stopped except in accordance with the procedures laid down by the law;
Judges shall not be subject to removal from office, and shall be subject to strict controls in their discipline;
A judge may not be annoyed because of his work, and the judiciary should be independent of the other two powers: the legislature and the executive;
Reviewing of court judgements shall be vested in the judiciary alone;
Setting up of exceptional courts shall be restricted;
Every person shall have the right to be tried by the established ordinary courts; and that
The Judiciary shall have jurisdiction over all disputes, and this jurisdiction shall not be limited.
Thus it is obvious that the Constitution of the State of Qatar, the International Conventions (Declarations and Agreements), and all law systems in various countries were keen to provide all means of independence and elements of security for this venerable power, and to secure it with all constitutional and legal guarantees which would enable it to adequately discharge its serious function, and move forward in performing its sacred mission without being subject to any influence, temptation or persuasion.
No doubt the goal of determining these guarantees is to disseminate a spirit of trust and reassurance among the litigants that resolution of their disputes and cases will not be subject to bias or prejudice. That would enable us to say that these guarantees have been determined for the protection of the litigants by finding the fair, brave, and reassuring judge before whom they can litigate. This is because when a judge in the discharge of his judicial function feels that he is free and independent and that his tenure is secured, He will then decide cases and make rulings according to the rule of law and commands of his conscience, and this would constitute a greater safeguard of the rights of individuals.
The Historical Development of the Qatari Judicial System:
In the past the judiciary in Qatar was based on the Islamic law (Shari’ah) and was exercised by the Shariite judge who was appointed by the ruler.
The judge used to sit to resolve individual litigations which were characterized by simplicity in subject and number, and were centred on family matters revolving around divorce and matrimonial issues.
The Qatari judiciary continued to develop gradually from one phase to another until the state made a giant stride in the process of reforming and upgrading the judicial system in order to keep pace with the accelerated and extensive development of the Qatari society, and the huge advancement in the various social, economic, urban, cultural, and political fields. This step consisted in the enactment of the Judicial Authority Act No. 10 for the year 2003 which emphasised that judges are independent and are not subject to removal from office except in accordance with the provisions of the law; that the independence of the judiciary shall not be subject to any influence whatsoever, and no interference in the affairs and course of justice shall be permitted; and that the courts shall have a budget annexed to the public budget.
The Qatari judicial system is based on a two-grade litigation: first grade and second or appeal grade. Each court decides on the cases referred to it in accordance with the law. On top of all these courts is the Court of Cassation whose basic function is to unify the understanding and the enforcement of the law in the various courts which are vested with litigation in the State, but it is not regarded as a third grade of litigation.
In compliance with Article 138 of the Constitution which stipulates that: the law shall determine the competent body entrusted with the settlement of administrative disputes and define its structure and manner of discharging its functions, the Legislator issued Act No. 7 in 2007 regarding settlement of administrative disputes, of which the second Article stipulates that one Administrative Circle or more, each of which is formed of three judges, shall be set up in the Preliminary Court and shall be exclusively entrusted with deciding administrative disputes specified by the law.
Undoubtedly Act No. 7 for the year 2007 represented a step of great significance towards protecting the principle of legality by assigning the jurisdiction of settling the administrative disputes to the judiciary, which shall include the power of annulment of defective administrative decisions.
The Basic Principles of the Qatari Judicial System:
In order to advance the function of the judiciary, the authority which exercises this function must be independent and impartial, and the Constitution of Qatar has emphasized this principle in Articles 129 to 135 under the Chapter of the Judiciary, as we have already said.
Hence the Qatari Judiciary is considered one of the basic powers in the State; and therefore no one may take the law into his own hands in order to decide his own case or to ward off an aggression, but rather resort to the judicial authority in the State to get a ruling restoring the right he claims, or fending off the aggression to which he was exposed. In other words, no one shall have the right to adjudicate by himself for himself.
The State has used its best endeavours to organise the judiciary so that it can fulfil the pressing need for it, as we have mentioned above.
Therefore, as the judicial authority is a right of the state it is also a duty of the same at the same time.
All individuals shall equally have the right of legal protection and the right to resort to the judiciary in accordance with the procedures laid down by the law, and shall be given the opportunity to present their pleadings and their defense in order to show the truth and to convince the judge of their entitlement to judicial protection.
It does not follow from the State’s commitment to organize the judiciary on its territory that the litigation shall be free of charge, as resorting to the judiciary costs the litigants fees that are collected by the State’s treasury. In fact charging these fees is intended to reduce spiteful litigations, and to ensure that the plaintiff is rightful in his lawsuit.
It should be noted that the litigant who loses the lawsuit shall bear all the fees and expenses of the litigation because he is the cause of resorting to courts of law by denying the right of his party to the legal action.
The Qarati law has provided for exemption of very poor people from payment of the litigation fees, as Article 551of the Code of Procedure has stipulated that anyone whose inability to pay the litigation fees has been proven shall be exempted from payment thereof. The Articles 551 ñ 554 have specified the procedures of such exemption; and it should be noted that cases involving workers and families are exempt from litigation fees.
One of the basic principles in the Qatari judicial system is that court sessions are open to the public i.e. any person shall have the right to attend these sessions, and publication of the content thereof shall be permitted. But the judge may decide on an exceptional basis to hold a session in secret, for the interest of public order or morality, or for preserving the sanctity of the family. In all cases, the pronouncement of judgments is made in an open session (Article 59 of the Code of Procedure).
Oral pleadings are deemed complementary to the principle of public court hearings, as it is important for the court to hear directly from the litigants and their counsels, the witnesses, and experts, even if these cases are based on written documents. That is because the discussion of these cases and disputes during the court sessions gives the judge an opportunity to get in contact with the evidence in a direct and more lively way. This will also give him a feeling of familiarity with the case, particularly because the oral pleadings are deemed a powerful means of convincing him with the basic points in the dispute.
The language of litigation shall be the Arabic language, but the court may hear the pleadings of the litigants and witnesses who do not speak Arabic through an interpreter who shall take oath before rendering the same into Arabic, that he will do the interpretation truthfully and honestly.
The Qatari Legislator was keen to achieve the integrity of the judiciary by stipulating that individual judges should possess certain qualities to ensure the independence of the judiciary and nonñinterference in the affairs thereof.
The Peninsula
(The author is a prominent
Qatari lawyer)
