In the Black Law Dictionary, law is "that
which is laid down, ordained or established." A rule or method
according to which phenomena or actions coexist or follow each other. Law,
in its generic sense, is a body of rules of action or conduct prescribed
by controlling authority, and having binding legal force." In the
United States, law is "that which must be obeyed and followed by
citizens subject to sanctions or legal consequences."
The "[w]ord ‘law' generally contemplates both statutory and case
law." In the U.S., "[t]he law of State is to be found in its
statutory and Constitutional enactments, as interpreted by its courts,
and, in absence of statute law, in rulings of its courts." It should
be seen as a "body of principles, standards and rules promulgated by
government, state ex rel.; command which obliges a person or persons and
obliges generally to acts or forbearances of a class; constitution or
constitutional provision." Law can be called "common law"
as in the British Isles or Anglo Saxon's Western Hemisphere; or Roman law;
Napoleonic, like in Continental Europe and in the Countries of the Third
World that adopted it; or it could be also one that draws or derives its
origin from religion such as Shariah or canon law.
Other definitions:
As used in constitutional and statutory
provisions, this term denotes a public office of considerable dignity and
importance, to which important public trusts or interests are confided
which is not office of profit.
Integrity: As used in statutes prescribing
the qualifications of public Officers, trustees, etc., this term means
soundness or moral principle and character, as shown by one person dealing
with others in the making and performance of contract, and fidelity and
honesty in the discharge of trusts; it is synonymous with probity, honesty,
and uprightness."
Corruption: "An act done with an
intent to give some advantage inconsistent with official duty and the
rights of others. The act of an official or fiduciary person who
unlawfully and wrongfully uses his station or character to procure some
benefit for him/herself or for another person, contrary to duty and the
rights of others."
In the absence of controlling authority, the law
itself becomes something that exists in literal form- not followed, not
respected, not enforced. How it is said in Arabic; ink on the paper,
because he who should fulfill it, or apply it violates it. When the judge
himself takes bribe, is corrupted, uses his position or character to
procure benefit for himself, or as happens for nephew, son, brother, uncle,
cousin, and in-laws- in a way contrary to duty and the rights of others,
his office loses its considerable dignity and importance, to which
important public trusts were confided. The words integrity and probity
disappear, elected and appointed officials become corrupted, the
government institutions collapse, the injustice which becomes public and
generally obliges everyone to make justice for himself/herself, and to be
enemy of all, and of everyone. This reality penetrates in the army and in
the police, and the citizens to defend themselves from the oppressive
apparatus of the State who are forced to arm themselves and take weapons
against army and police, because the apparati, who would defend their
rights and their security, takes his rights compulsorily, and endangers
his life and the life of the members of his family. From there arises the
civil war that ravages in many country of the Third World. Therefore, the
civil war in those countries is the product, the result of the actions of
the so called self-styled leaders of those countries, and their supporters
in the developed countries' leaders.
The civil war in my country is a result of the
support of the former Soviet Union, to the authors of the Coup d'E'tat of
1969, and of United States later after the skirmish war between ex.
dictators Mengistu Haile Marian and Siyad Barre and the abortive 1978 coup
of Mohamed Sheikh Osman. Corruption without limit also began after this
date; simply because this date marked the beginning of the armed
resistance against the oppressive
Siyad Barre regime.
In this case, probity loses its meaning of
soundness or moral principle and character, fidelity and honesty. This
type of corruption causes the disappearance of the civil society, and I
doubt that anyone in the Third World knows its meaning, I mean the meaning
of a civil society- although Ismail Omar Guelleh, President of the
Republic of Djibouti, used these two words unknowingly, as I doubt that
the foremen of the Third World tried to know such meaning, or tried to
know what they do not know.
The Western objective in insisting separation of
powers and the division of government organs among several of its
constituent parts was to prevent an unlawful concentration of authority in
any one part of the government units. According to Black's Law Dictionary,
the separation of powers embodied in the American Constitution has two
dimensions: a functional distinction between government and people, and
between legislative, executive, and judiciary: and a territorial
distinction between central and state Government. I believe that the goal
of this article is the separation of Executive and Judiciary powers in the
future Federal State of Puntland, and the stupid and imbecile action of
arrogating to himself a judiciary and an executive powers at the same time
by the part of Yusuf Haji Nur, believing that they are not incompatible,
is not only political and legal myopia, but also a nanism understanding in
both fields. Now the question is why we have revolted, when General
Mohamed Siyad Barre became President of the Military Junta Regime,
Legislator through Presidential Decrees, Supreme Judge through Revision of
cases, and not through pardon, amnesty, or grace which are provided by the
Laws of all Western Democratic States? Have we not now the task of
avoiding and blocking absolute and abusive powers concentrated in one hand,
and ensure checks & balances, that are instruments of implementing the
separation of powers such that each branch has control over other parts of
the Government? I am sorry that the Supreme Judge does not understand that
from Aristotle to Baron de Montesquieu the juridical science's acceptance
of these distinctions of powers. Mr. Yusuf Haji Nur,(the Supreme Judge) is
bombastic in violating these distinctions.
However, "separation of powers is the
necessary structural support for the functional division of governmental
power that is the foundation of constitutional democracy. It prevents
government from obtaining tyrannical power over groups and individuals."
Only people of totalitarian tendencies reject separation of powers,
favoring the concentration of powers in the hands of enlightened
megalomaniacs like Fuhrer, Duce or someone like Yusuf Haji Nur who wants
to create a regime of le Roi de Soleil or the Somali Socialist
Revolutionary Party!!!. And that is unchecked power of one branch, which
we cannot endure. We cannot accept that some of us has lost the best part
of their life in such absolute and totalitarian regime, and we cannot
undergo to another experiment of such kind or type. I think that this can
be acceptable to those people that can live under the shade of all kinds
of regimes. Neither Rousseau nor Mortatti, as political philosophers,
would accept a tendency of this nature. If we endorse the concept of the
separation of powers, and consequently the concept that the relationship
between people and its rulers arises from a mutual agreement between both
parties, we decisively reject oppression and totalitarianism.
We can understand that Our Society had no
tradition of a constitution to respect before 1960, but what is hard to
understand is that a jurist who covered different positions in the
judiciary hierarchy behaves as Yusuf Haji Nur behaves. We know that in the
country there is problem of poverty in every sense of the word, but it
doesn't justify such stand.
In every democratic system there should be as part of its principal
principles certain degree of separation of Powers, otherwise, there will
be a government in which all legal power and authority is exercised by one
person or group of persons, as happened in our Country, to which we must
depend entirely upon their self-restraint in the exercise of that power.
History doesn't indicate that such self-restraint has happened in the past,
that the rulers, because of heaven or philosophical persuasion have
exercised that self-restraint, and efforts to prevent the abuse of the
powers of government have therefore focused on constitutional arrangements
that always divide and limit the powers of government.
According to the Black Law Dictionary " the
doctrine of the separation of powers consists of a number of elements: the
idea of three branches of government, the legislative, the executive, and
the judiciary; the believe that there are unique functions appropriate to
each branch; and the assertion that the personnel of the branches of
government should be kept distinct, no one person being able to be a
member of more than one branch of the government at the same time. What is
to be asked to Yusuf Haji Nur, and to everyone who will have the
opportunity to read these lines? Are these underlined lines and the lines
in italics worthy to be respected, and did Yusuf Haji Nur respected them?
Did he deserve to continue, Yusuf Haji Nur, to be licensed to practice law
after these facts or should he be ousted from the judiciary order? I
believe that he should be ousted, and he should be also liable of the
damages caused by his actions to the people and the society of Puntland .
Everyone should be responsible for his/her action.
Without these three branches, their ability to
control each other and without being responsible directly to the people,
the checks and balances required to prevent one or other branch of
government from becoming overwhelming, overpowering or over-tyrannical are
impossible to keep; it will not be easy to have the internal checks and
balances exercised by one branch of government over the others, as it will
not be easy to have mixed and balanced power of government without a
constitutional charter that separates the different governmental powers.
Everyone should know that all constitutional systems of government are an
amalgam of the separation of powers and checks and balances. I am sure
that separation of powers is a long process of evolution, but we must not
consciously commit crimes for our personal selfishness or for the interest
of people of our lineage.
The spirit of this separation is expressed by the people, when they rose
up against the military regime in 1978, and continued rising up until
they dismantled the then rulers in 1991, demanding democracy, and they are
refusing until now any form of unjust government whether it is disguised
or open.
The President of the Supreme Court, who is the
chief of Judicial Branch, cannot at the same time be the President of the
State, the chief of the Administration, which he and his subordinates
should judge tomorrow, in case of controversy between executive and
legislative, between judiciary and legislative, between judiciary and
executive. If your aim was protecting the term of the executive power
which was expired, now that your term (of one month ) expired three months
ago what will be your justification of tomorrow?
Considering the corruption that floods and
inundates the country, considering the political unconsciousness that
prevails in the country, considering the frenzied, the longing, the
restless and sick desire for power and wealth, it is necessary to organize
from North America , from Europe, from Arab Countries and from Africa -
particularly inside Ethiopia, Kenya and Tanzania and possibly a Center of activity and an organization
that struggles against these ailments of misfortunes. This
organization should be open to all individuals from every clan, sub-clan,
gentilitial group or religious faith, provided that they have no personal
or clan, or sub-clan ambition of wealth and political or social positions
in the coming society, but they are enlivened and animated by the struggle
against corruption, mania of power and wealth, against dictatorship,
against unlimited term of power, particularly presidential and premiership,
the institution of real democracy with a proportional system of elections.
I do not think that Ali Mahdi Mohamed was there to fight for democracy and
for the emancipation of the oppressed sections of the Somali people, when
some people wanted him to become President, but simply to be President and
help his backers when he would become installed on the easy chair; so was
Mohamed Farah Hassan Aidid; and so is Abdiqasim Salad HassanYare. And so
will be the many others who are fighting for those easy chairs. Not one of
them has an idea of democracy, or why Somali People fought against
different governments. If the unjust done to greatest ethnic group or
smallest ethnic group always spark future upsetting, disorder and
confusion or not; they cannot even tell you what is the democracy you
fought for. What they know is their personal gains, their egos.
In North America, specially in Canada and in
United States, we have over 300,000 Somali refugees and asylum seekers. It
was impossible, in every State, to organize a unique, unified one Somali
community. The reason is that only few individuals want to create an
organization from which they themselves and only themselves can obtain
personal gains. For example, in the State where I reside, we have 10
registered - none functioning communities. Everyone who has a sense of
shame escaped from these organizations. I know that the Somalis in this
state, and those in other States, will write to the Federal Government and
to their respective states, demanding the creation of one Somali Community
in every State of which the Board of Directors and all levels of
leadership are elected every two years, and in which there is controlling committee that controls all
activities of the leadership of every level.
Ercole Ercoli
The opinions contained in this article are solely those of
the writer, and in no way, form or shape represent the editorial opinions
of AllPuntland.com.
