Policy Paper (Original Arabic can be found here)
To Uphold Rule of Law in Jordan, Executive Authority Must Cease Infringing upon Law or Operate Outside its Boundaries
1.1. The sixth discussion paper released by King Abdullah II on 16 October 2016 has sent a critical message to the state apparatus and governance institutions, indicating that the point of reference for the government and administrative decision in the country, rests in “the accurate implementation of the articles of the law,” stressing that ” rule of law provide guarantees that government institutions practice their authority in accordance with the constitution and the law,” and emphasizing that “no democratic country that respects human rights can operate outside this framework.”
1.2. The royal interest in the matter of rule of law and its principles represents an opportunity to examine main problems confronting its implementation in the country.
1.3. This analytical policy paper seeks to highlight these problematic areas and connect them to the normative practices of the government, while attempting to provide decision-makers, observers, and the general public with a number of recommendations that contribute to enhancing rule of law framework and its respect, based on international human rights law as the sole source of standards on which review was built on.
2. Rule of Law is Fundamental Condition for Upholding and Respect of Human Rights
2.1. Upholding and respecting human rights originates from the law and is carried in accordance with its stipulation(s).
2.2. Protecting and nurturing human rights are the duties entrusted with the state solely.
2.3. Upholding human rights derives from implementing public laws that are compatible with international human rights standards.
2.4. The framework under which human rights are implemented and demanded must be based exclusively on instruments of law.
2.5. The legal implementation framework should stipulate equality and responsibility before the law, fairness in law implementation, separation of authorities, avoiding arbitrariness, transparency, and integrity in the legal procedures implemented.
2.6. The legal framework should also provide opportunities for justice and accountability throughout all procedures related to implementing legislations.
3. Stifling Rule of Law
3.1. Arbitrary actions represent by far the major challenge that undermines the principles of the rule of law. Arbitrariness in this context and in any context related to the International Human Rights Law, which Jordan is bounded to, means that the state, or any agencies, departments or individuals acting on its behalf, undertake procedures that violate the law, and are therefore deemed void of legitimacy.
3.2. Enacting legislation in a manner that infringes upon principles of rule of law represents one form through which rights and freedoms are restricted without justification, based on international standards. This approach could take different forms, perhaps the most prominent of which is enacting legislations that contradict in their provisions the principles of the constitution and some of its stipulations, in addition to violating relevant international conventions. The notable example of such conduct in Jordan is represented in the Crime Prevention Law which grants individuals the executive authority “the administrative ruler” judicial authorities, which represents a clear violation of the principle of separation of authorities. Add to this the vague and ambiguous text in this law, which could render detention and deprivation of freedom a discretionary issue far from complete control of the judiciary.
3.3. Expanding the use of the discretionary powers granted to state employees represents a blatant challenge to the principles of rule of law, especially that they are practiced without indicating the reasons requiring them, which reinforces selectivity and nurtures a fertile environment for corruption.
3.4. Impunity, with all that it indicates an intentional or non-intentional absence of accountability, represents a form of encroachment on the rule of law, due to the implied and real immunity for violators and violations, which sets the foundations for an implied official tolerance with the principle of violation. Perhaps the source of impunity in many cases is the text of the law itself, which provides the perpetrator with the abilities to dodge the penalty due to conditions and justifications entrenched in customs and traditions, which violate the core of human rights basic principles. An example is the text of article (308) of the penal code, which grants the perpetrator the potential for impunity for crimes of rape or ravishment, as soon as a marriage certificate [between perpetrator and victim] is concluded within the conditions stipulated by the law. Furthermore, some of the practices by law enforcement agencies, particularly dealing with some cases with the approach of tribal customs and practices, such as “atwah [blood money]” and “sulha [reconciliation]”, are bound to dedicate a trend that becomes embedded in the collective conscience. Such norms and traditions have hindered rule of law and its sovereignty.
3.5. Lack of public disclosure in any of the governmental decision-making processes could also jeopardize the principles on which the rule of law is built.
3.6. Breach of the requirements of fair trials, and guarantee that the accused stand before their natural judge may undermine the principle of the rule of law. In this respect, it is noteworthy that there are legislations that bestow legitimacy to making trials related to civilians of an extraordinary military nature. Texts related to “anti-terrorism,” whether in the penal code or the anti-terrorism law transfer jurisdiction in many case to the State Security Court. Taking into consideration that these texts are mostly general and confus[ing] in nature, so that the simple expression of opinion in many cases is considered as a crime resulting in its perpetrator appearing before a special court, the level of seriousness of the role played by legislations in undermining the principle of the rule of law becomes clear, at a time when the law is supposed to be the source of its sovereignty, and the proper procedures compatible with it are a translation of the sovereignty principle.
4. Current Problems
4.1. Issues Related to Individual Freedom and Deprivation of Freedom, including administrative detention as an example, which takes place in accordance with the Crime Prevention law, which grants the administrative ruler executive and judicial authorities at the same time. Measures taken within this framework ascend to the level of arbitrary actions and those connected to the widening the discretionary powers granted to state employees in a manner that undermines legal guarantees to the right to proper and fair due process to restrict freedom, including knowledge of the charges, directing charges, contacting a lawyer, and presentation to court during a specific legal period, and imprisonment based on issuing a conviction decision.
4.2.Issues related to the use of administrative authorities in a manner that violates the law without accountability, including, for example, prohibiting public gatherings without the right to do so, in a manner not permitted by the law.
4.3. Issues related to enacting legislations that undermine the principle of the rule of law, including, for example, the Crime Prevention law, which is essentially based on contradicting the principle of the rule of law by granting legitimacy to a regulation (or law) outside the law-enforcement system implemented in the state, and therefore undermining all (legal) guarantees available as part of this system, the least of which, for example, the right to a fair trial. This includes the issue of executive instructions and regulations that contradict the laws by which they were issued.
4.4. Issues related to the expansion of granting the discretionary authority, which is essentially reflected in the absence of written, documented, and public provisions that identify the framework of taking the measures applied in issues related to implementing the law, reducing reliance on the civil servants’ discretion.
5.1. Issue instructions by the Prime Ministry strictly prohibiting taking any executive measure by any public servant, including public security staff members, unless such a measure is based on a written legal provision, and to subject any executive order or measure issued without legal basis to accountability within a framework of the applicable disciplinary measures.
5.2. In order to prevent abuse and encourage a doctrine based on being overt, disclosure, and transparency, gag orders limiting publishing in cases before courts should be limited, provided that any decision prohibiting publishing in a case serves specific objectives, within the narrowest possible manner, in accordance with the justifications permitted by international law for the purpose of preserving national security, public safety, public order, public health, public morals, or protecting the rights and freedoms of others.
5.3. That the government requests, exclusively and clearly, without any ambiguity, that the Opinion and Legislation Bureau integrate human rights agreements and international conventions ratified by Jordan as a primary source in preparing draft legislations and laws, which guarantees avoiding any form of discrimination or tolerance, expressed or implied, with any human rights violation.
5.4. Procedural legislation require a revision regarding the long period of litigation, since these procedures cause individuals, to a large extent, to avoid resorting to the legal system, which in turn encourages the use of conflict-solving methods outside the judicial system framework. The government should simplify procedures related to civil and criminal, and even commercial litigation.
5.5. The government should guarantee the basic role of the National Center for Human Rights in accordance with the Paris Principles, so that it forms a national mechanism for monitoring violations related to individuals, institutions, or non-governmental organizations.
5.6. The government must reinforce the role of internal control systems in government agencies and restructure them to become a reinforcing factor to monitor the implementation of the law transparently and equitably.
5.7. Accommodate the legislative and procedural environment in a manner that allows civil society organizations to practice their role of monitoring the state of human rights, monitor violations of all forms, and observe the implementation of the law.