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Constitutionalism, Human Rights, and Islam after the Arab Spring by Grote, Rainer; Röder, Tilmann J (22nd August 2016)

Part 6 Constitutional Courts: New Guardians of the Constitutions?, 6.4 Constitutional Reform and the Rise of Constitutional Adjudication in Jordan: Background, Issues, and Controversies

Mohammad Hammouri

From: Constitutionalism, Human Rights, and Islam after the Arab Spring

Rainer Grote, Tilmann J. Röder

(p. 723) 6.4  Constitutional Reform and the Rise of Constitutional Adjudication in Jordan

Background, Issues, and Controversies

The Arab Spring, which crossed Jordanian borders from Tunisia and Egypt, has compelled the authorities in Jordan to respond to the peoples’ long-standing demands for reform. As a response, the king formed a Royal Commission1 to propose amendments to the Constitution of 1952. After passing through government and parliament, the said amendments were issued and published in the Official Gazette of Jordan to come into force as of October 1, 2011. This article will touch on the considerations behind the Jordanian demands for reform, the views of the Constitutional Commission, the procedures through which the amendments were approved, and the most noteworthy constitutional changes. It will further concentrate on the essential elements of democracy that the Constitutional Commission did not take into account.

I.  The Backgrounds of the Reforms

The Jordanian Constitution of 1952 adopted the parliamentary system, which originated in England.2 In 1831, Belgium inherited said system as a bicameral parliamentary system and (p. 724) codified it to be its first constitution.3 Jordan took the rules of its 1952 Constitution from the consolidated version of the Belgian Constitution of 1921.4

The Constitution of Jordan, as any parliamentary constitution, regulates two subjects: the rights and freedoms of the people, and the authorities’ obligation to serve and promote said rights and freedoms. The provisions of rights and freedoms in the Jordanian Constitution have never been amended. They were, and still are, similar to any provisions in a well-respected democratic state. However, during the period between 1954 and 1984, 28 amendments were made to the constitution, effectively increasing the power of the executive branch at the expense of other branches.

Relying on this added power, along with the provisions of martial law which were in application until 1991, the executive branch turned Jordan into a police state during this period. Under the pretense of national security and loyalty to the Monarch, the members of the General Intelligence Directorate in Jordan (GID) utilized their position and became the dominating power in the country. A report from a member of the GID against any citizen was sufficient to send him to jail and to deprive him of any future job opportunity.5 Few could hold any position, high or low, without a green light from the Intelligence Directorate. Prime ministers and ministers alike had to pay heed to the regulations and recommendations of the Directorate, or depart from their posts. The power of the government to pass provisional laws and material orders effectively evacuated the individual’s rights and freedoms from their meaning or content. This atmosphere essentially changed the country into a state of powerful men rather than a state of law.

In their uprising of April 1989, the people of Jordan raised their voices against the practices described above and pressed the authorities for change and reform. The late King Ḥusayn responded by changing the government, holding elections for a new House of Representatives, abolishing martial law, and forming a commission to propose a National Charter. Distinguished lawyers and politicians participated in preparing and drafting the Charter, aiming to erect pillars of a democratic state. The Charter was promulgated in October 1991.6 Unfortunately, the Charter was neglected and forgotten. The Intelligence Directorate, which was and still is acting as the real yet hidden government,7 ensured that the Charter was nothing more than a way to placate the people. Jordan was declared to have entered the era of democracy; in reality, nothing had changed. Democracy was the cover under which the rule of men overshadowed the rule of law. This situation prevailed until the Arab Spring, which arrived in January 2011 and gave Jordanians an opportunity to rise again and call for real reform.

(p. 725) II.  The Driving Forces Behind the Reform Process

In May 2011, the king, upon the advice of his close advisors, formed a Royal Commission of 10 dignitaries in order to introduce any needed constitutional amendments. There are a number of facts about this Constitutional Commission worth noting:

  1. 1.  Neither the prime minister nor any member of his cabinet had anything to do with the formation of the Commission. They were neither represented nor is it known if they were consulted.

  2. 2.  Four out of the ten members were former prime ministers while the other six members had formerly occupied ministerial positions.

  3. 3.  Only three of the ten members were lawyers, but none of them was known to have written, published, or lectured in matters of constitutional law.

  4. 4.  Up to the point when the Commission was formed, all the dignitaries who became members of this Commission were of the opinion that the constitution should not be amended in any reform effort and that no constitutional amendments should be permitted.

These facts may help to explain the quality of the constitutional reform eventually produced. Upon the request of the Chairman of the Commission, the author of this article provided the chairman with a number of his publications on the topic of constitutional reform. However, the outcome of the Commission ignored the essential suggestions and took few of the views presented in said publications into account. The Commission held secret meetings for more than three months at the end of which it submitted its recommendations to the king. The recommendations were to amend 68 paragraphs grouped in 37 articles of the constitution. Upon the recommendations and the advice of his inner circle, the king directed the government and the two houses of parliament to finalize the amendments within 30 days. The Council of Ministers, which was composed of 30 ministers, and afterward the House of Representatives, which has 120 members, took 27 days to finalize the constitutional amendments. When the amendments reached the Senate, whose members had many observations and suggestions, the remaining three days were not enough for its 60 members to consider the amendments. As a result, the Senate decided to approve the amendments without a single change.8

To understand the defect in this process, it might be helpful to compare it to the constitutional reforms that took place in Morocco at almost the same time. In Morocco, the king, upon the advice of his advisors, formed a Royal Commission of 19 distinguished law professors,9 who in turn wrote to their colleagues at universities, political parties, and civil society associations to provide them with the suggestions they may have in this respect. After studying the received suggestions and relevant publications, the Commission formulated a draft of the amendments in order to discuss them in meetings with representatives of civil societies that followed. Eventually, the outcome of said meetings was turned into provisions for the Moroccan Constitution.10

(p. 726) Today, many Jordanians view the constitutional amendments announced on October 1, 2011, as falling short of meeting the real and substantive needs of the country. Thus, the issues which Jordanians protested against remain as they were. Accordingly, demonstrations, which started in January 2011, have continued, and up to date (March 2016) Jordanians still claim that the constitutional amendments of October 2011 did not remedy the essential defects in the Jordanian political system.

III.  The Substance of the Reforms

Jordanians had patiently waited for a constitutional reform that would cure the defects in the system and overturn the practices which had made the country a state of powerful men. However, the outcome of the reform was and still is startling. The reform of 2011 amended some of the existing and added 68 new paragraphs to the constitution. Amongst the new provisions, 16 relate to rights and freedoms, and the other 52 paragraphs are related to the authorities. Although those paragraphs held some improvements, they did not remedy the essential defects in the structure of the system. The following sections are examples of the amendments.

A.  Prohibition of Torture (Art. 8.2)

This article of the constitution prohibits the torture of any detained person. Its amendment added a progressive rule to the constitution, but did not provide for an entitlement to compensation for individuals against the state or against the individual who tortured him. The importance of compensation in this respect is not only to help remedy the injury of the harmed person but also to warn those who torture that they will be personally liable and consequently deter them from torturing others or from obeying orders to that effect.11

B.  Protection of the Essence of Rights and Freedoms (Art. 128)

The amendments added a new paragraph to Art. 128, which introduces an advanced rule to the constitution, for it provides:

All laws issued in accordance with this Constitution for the regulation of rights and freedoms may not influence the essence of such rights or affect their fundamentals.

For a long time, many legal scholars and lawyers demanded a provision in the constitution similar to the First Amendment of 1791 to the US Constitution. The first amendment to the US Constitution provides as follows:

Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people peacefully to assemble, and to petition the government for redress of grievances.12

Though the provision of Art. 128 can be regarded as a step of progress in Jordan, it is still vague and not mature. The terms “essence” and “affect” do not have a definite (p. 727) meaning and will cause many problems in application. When compared to the US provision, the Jordanian text appears to be flimsy. A clear and decisive provision was suggested to the Commission, but it seems that they preferred the less assertive text that was chosen. Freedom of opinion is provided for in Art. 15.1 of the constitution as follows:

The State shall guarantee freedom of opinion, and every Jordanian shall freely express his opinion by speech, writing, photography and the other means of expression, provided that he does not go beyond the limits of the law.

Nevertheless, the authorities have separated the freedom provided for in said articles from its content. This may be exemplified by the following most recent amendment: On June 1, 2014, the authorities added paragraph 6 to Art. 3 of the Law on the Prevention of Terrorism, No. 55 of 2006. This paragraph considers any published opinion which affects the friendly relationship of the Jordanian Kingdom with other countries as a terrorist crime.

Moreover, on November 29, 2014, relying on said paragraph, the authorities accused Zakī Banī Irshayd, the deputy leader of the Islamic Action Front, of committing a terrorist crime because he criticized the government of the United Arab Emirates on his Facebook page. He had been sentenced to eighteen months in prison by the State Security Court (i.e., Martial Court).

C.  Establishment of a Constitutional Court (Arts. 58–61)

Arts. 58–61 of the constitution created a Constitutional Court in Jordan and provided for its cognizance. Although Jordanians have long demanded the establishment of such a court, any jurist who examines the relevant provisions will find that the said court is tailored to suit the government and not the people, and this is for the following reasons:

  1. a)  The nine judges of the court are appointed by a decision taken by the government and approved by the king.

  2. b)  The right to bring any direct action before the court to decide on the nonconstitutionality of a law or bylaw is given only to the government, the House of Representatives, and the Senate.

  3. c)  Before the establishment of the Constitutional Court, the prevailing rule in Jordan was the same as the rule established by the American case Marbury v. Madison (1803) by Chief Justice Marshall,13 i.e., any of the 1,000 judges of Jordan had the jurisdiction to decide on the nonconstitutionality of a law or bylaw, relating to a case before him, whether or not such nonconstitutionality was pleaded by the parties of a case. The judges assumed such jurisdiction even though there is no legislation to this effect. However, the constitutional amendments were silent regarding the authority of the judge to question or challenge the constitutionality of the law without a plea presented by any party, and it was believed that the practice will continue as it was before. On the other hand, Art. 60 of the constitution gives the parties to any case a right to plea the nonconstitutionality of the law before the court and if a plea in this regard is raised, the judge will consider its merits. If the judge finds a ground for the plea, he/she should refer the file to a higher court for an audit of his decision. The provisions of the constitution do not designate the Higher Court, but such designation was to be provided for in a law that was to be issued. On June 7, (p. 728) 2012, the Law of the Constitutional Court, No. 15 of 201214 was issued and Art. 11 of said law provided for the establishment of said Higher Court, composed of three judges of the Court of Cassation.

    According to Art. 60 of the constitution, said Higher Court will judge whether or not the plea of unconstitutionality should be referred to the Constitutional Court. These long procedures for the case to come before the Constitutional Court will, in the view of the author, be a burden for the parties of the case and may defy justice.

  4. d)  Apart from the government, the House of Representatives, and the Senate, the authorities who were tailoring and directing the reform rejected all suggestions concerning the establishment of a right of individuals to bring a direct action before the Constitutional Court. Not even political parties were vested with such a right.

  5. e)  Up to now, neither the government nor the House of Representatives (Deputies) or the Senate have brought any action to the Constitutional Court to nullify a nonconstitutional law. Moreover, regarding the plea of nonconstitutionality before any ordinary court, the Constitutional Court has to date revealed a tendency of refraining from ruling on the nonconstitutionality of laws related to the rights and freedoms of the parties to the underlying case. Out of the 12 judgments which the Constitutional Court has issued so far, 8 cases were dismissed without any logical or persuasive reasoning.15

  6. f)  When comparing the Jordanian Constitutional Court to the one established in Morocco through the constitutional amendments of July 2011, the defects of the Jordanian Court become clear. By virtue of Art. 130 of the Moroccan Constitution, there are 12 judges of (p. 729) the Constitutional Court. Six of those judges are elected in a secret ballot, three by the House of Representatives, and three by the Senate. One of the remaining six judges is named to the king by the secretary general of the High Scientific Council, and the other five judges are appointed by the king. It is obvious here that the executive authority can only influence the appointment of a minority of the judges. Moreover, Art. 133 of the Moroccan Constitution gives a right to any individual to plea the unconstitutionality of a law before any judge in Morocco who in turn has the jurisdiction to refer the case to the Constitutional Court based on merit supporting the plea.

D.  Judicial Power (Art. 98)

Since 1952, the Jordanian Constitution provides that the judicial power shall be exercised by the courts of law, that judges are independent in the exercise of their judicial functions and that they are subject to no authority other than the law. Nevertheless, one of the main complaints of Jordanians, especially lawyers, was the continuous effort of the government to influence the courts.

Responding to the people’s complaint, the Commission added two paragraphs to Art. 98, making the original text of the article the first paragraph of the new article. The second paragraph of the article in its new form reads as follows: “A Judicial Council shall be established by law to be in charge of all affairs relating to Civil Judges.”

It is obvious that the term “all affairs” is used to give the council the authority of appointing and promoting the judges, as a way of preventing any interference or influence of the government in the field of judicial functions, while the term Civil Judges is used to exempt the Judges of the State Security Court (Martial Court).

Moreover, in order to substantiate the above meaning, the third paragraph of the new article provides: “The Judicial Council shall alone have the authority to appoint Civil Judges.” Again, the word “alone” in the provision leaves no doubt about the conclusive authority of the council in appointing the judges. The paradox here appears when the three paragraphs are read together: Paragraph 1, in view of Art. 40 of the constitution, gives the government the authority to appoint and dismiss judges, whereas the other two paragraphs grant said authority to the Judicial Council. In addition, the Sharīʿah judges who are mentioned in paragraph 1 have been forgotten in the other two paragraphs.

In the view of the author, no court independence can be realized, while paragraph (1) in Art. 98 of the constitution is still in existence. Moreover, said paragraph should be replaced by a provision that prevents the dismissal of judges, as will be discussed later.

E.  Reform of the State Security Court (Art. 101)

For decades, Jordanians continuously complained about the State Security Court, the existence and jurisdiction of which stems from a special law issued for that purpose.16 The chief prosecutor of said court is required to be a general in the army who performs his duties under the leadership of the Chief of Staff of the Armed Forces. The other military judges of the court perform their judicial functions under the auspices of the general who directs the prosecution against the accused person before those judges. Such a type of court is not part of the judiciary system. Its practices have provoked many lawyers to say that a person sent to the State Security Court is effectively sent for being sentenced, not tried. However, (p. 730) instead of preventing the establishment of this court by adding a corresponding provision to the constitution,17 the Royal Commission proposed a provision for instituting a State Security Court with jurisdiction for considering three types of crimes. In its turn, the government approved the proposal and passed the draft to the House of Representatives. As the demonstrations and protests in the country increased, the House deleted the proposal, and instead rewrote paragraph 2 of Art. 101 as follows:

No civilian may be tried in a criminal case where all its judges are not civilian, the exception to that are crimes of treason, espionage, terrorism, the crime of drugs and currency forgery.

In the eyes of the people, things have become worse. Instead of narrowing down the jurisdiction of the State Security Court to three crimes, it was extended to five. Further, civil courts are now prohibited from considering these five crimes. By elimination, the only remaining court in the country to consider the said criminal cases is the State Security Court. The Senate approved the paragraph, and it has become a provision in the constitution. There is no provision in the constitution defining any of these five crimes. This effectively opens the door for enacting overreaching laws and accommodating definitions that could jeopardize the rule of law. Moreover, as Art. 101.2 requires a civilian to be tried in a criminal case before civilian judges, the authorities took the liberty for appointing Civil Judges in the State Security Court to carry out the trial, as if the constitution was only concerned with the uniform worn by the judges.

There is no persuasive reason for establishing a State Security Court in Jordan. In matters relating to civilians, Civil Judges are more qualified and trained to serve and protect justice than martial judges. Proponents of the State Security Court furthermore contend that its judges conduct faster trials than Civil Judges. The fact that this assertion is far from true is demonstrated by the example of the recent case of Ḥusnī Mubārak and his sons in Egypt, where the relevant crimes were referred to a civil court to be tried in consecutive sessions.

F.  Provisional Laws (Art. 94)

In essence, the parliament, as the legislative authority, holds the constitutional power to issue laws. In the case of emergencies, circumstances do not leave time for the parliament to meet and pass a required law. In this case, constitutions allow governments to issue provisional laws for taking the needed measures quickly to remedy the situation.18 When the Jordanian Constitution was passed in 1952, Art. 94 provided that, in case the parliament was not in session, the Council of Ministers, with the approval of the king, had the competence to issue provisional laws covering situations such as general disasters, the state of war, and emergencies, and necessary expenditures which admit of no delay.

According to Art. 94, the provisional law, in order to have force of law, had to be placed before parliament at the beginning of its next session for approval, amendment, or rejection. On 5 May 1958, Art. 94 was amended and allowed provisional laws on “matters which require necessary measures that admit of no delay”. Furthermore, the amendment widened the scope of issuing provisional laws including cases where the House of Representatives had been dissolved. Relying on this amendment, governments used to dissolve the House and issue (p. 731) hundreds of provisional laws, disregarding the meaning of “necessity which admits no delay”. Moreover, the article, whether in its original text or after the amendments, did not specify any period of time for the parliament to consider these provisional laws. Therefore, many provisional laws have been before the parliament for years, some waiting for the last 30 years.

In January 1998, the General Assembly of the High Court of Justice held in five cases:19 “Necessity, which admits no delay means a state of war, public danger, fire, flood earthquake …” and accordingly declared the law in question under consideration to be unconstitutional. These rulings, however, did not have any impact on government practice. Over the last 15 years, Jordanian governments have issued many provisional laws even though they did not fall under a reasonable reading of the term of necessity. One government alone has issued 220 provisional laws within two years.20

In view of the above, the pressure coming from demonstrators urged the House of Representatives to make real changes in this respect. The recent amendments to Art. 94 restrict the issuance of provisional laws by restoring the original language requiring “public catastrophes” or “state of war and emergency”, and by obliging the parliament to decide on the provisional laws within two consecutive ordinary sessions. Otherwise, they will be null and void. In this respect, Art. 94 provides:

1.  When the House of Representatives is dissolved, the Council of Ministers—with the approval of the King—shall have the right to issue provisional laws to cover the following matters:

  1. a)  General disasters.

  2. b)  The state of war and emergencies.

  3. c)  The need for necessary and urgent expenditures which cannot be postponed.

The provisional laws—which should not violate the provisions of the Constitution—shall have the force of law, provided they are placed before the Parliament in the first sitting it holds. The Parliament shall take decisions in their regards during two consecutive ordinary sessions from the date of their referral. It may approve, amend or reject such laws. If it rejects them or the period provided for in this Paragraph elapses without decisions, the Council of Ministers should—with the approval of the King—declare their nullity immediately;

Though the latest amendment of Art. 94 might be considered a step of progress, for it authorizes the government to issue provisional laws only in the case that the House of Representatives is dissolved; in case the House is simply out of session, however, the government is not authorized to issue provisional laws. Still one might claim that this rather ironic amendment is not acceptable in a democratic system for two reasons:

  1. a)  By virtue of Art. 73 of the constitution, the elections for a new House of Representatives should take place within four months following the dissolution of the House, and there is no democratic reason for absenting the dissolved House during said period. Accordingly, there should be a provision in the constitution that sets the day of the old House’s dissolution as the first day of the new House. The House is the people’s representative and accordingly, it should not be absent in any manner at any time.

  2. (p. 732) b)  Regarding the other scenario, i.e., when the House is out of ordinary session—the ordinary session lasting for six months beginning with October according to Art. 78—the government should be authorized to issue provisional laws to remedy the extraordinary events mentioned above, but Art. 94 does not permit the government to do so.

G.  Dissolution of House of Representatives (Art. 74)

In parliamentary systems like the one adopted in the Jordanian Constitution in 1952, the balance of power between the executive and legislative branches is essential.21 In Jordan, this balance is guaranteed by the following: The House of Representatives can revoke confidence in the government which entails its resignation. In turn, the government can dissolve the House.

On April 17, 1954, paragraph 2 was added to Art. 74 in order to complete this balance. The paragraph provided that:

If the House of Representatives is dissolved the government shall resign within a week from the date of dissolution and a transitional government shall administer the parliamentary elections.

In theory, the consideration behind the principle stated by the above provision is that the House of Representatives is usually dissolved when disputes arise between the government and the House. Therefore, it is expected that the cooperation between the government and the House will reach gridlock. In practice, this situation arises in democratic states when no party or organized group obtains a sufficient majority in the House of Representatives and a coalition government is formed. Again, in theory, the people should judge this dispute through elections. The people should elect a new House under the supervision of a nonbiased government. The elections would decide who will be the next prime minister and ministers. If the same members of the House or the majority of them are re-elected, this means that the House was right and accordingly the head of state will not appoint the same prime minister, because the same disputes will rise again. However, if the previous members of the House are not re-elected, that reveals that the House was wrong and the previous prime minister may form the new government. This principle, which governs democratic states, has never worked or been applied in Jordan.

However, on May 4, 1958, the added paragraph to Art. 74 was deleted and since then all consecutive Houses of Representatives have been dissolved before the end of their term and elections have been held by the governments who decided on the dissolution. Note here that during the last decade, many prime ministers and even a chairman of the intelligence agency confirmed the belief held by many Jordanian civil society groups that elections have often been rigged by the government.22

(p. 733) In view of the above, the amendment of Art. 74 becomes extremely important for remedying a defect in the system. The suggestions of the Royal Commission restored part of the provision of 1954 which provides: “The government—in the tenure of which the House of Representatives is dissolved—shall resign within a week from the date of dissolution.”

As the suggestion neglected the last part of the provision calling for a transitional government to oversee the elections, the prime minister, who signed the dissolution of the House, can accordingly form the transitional government and hold the elections. Effectively, this shows that the Royal Commission in its suggested amendment considers the dissolved House to always be wrong in its conflict with the government. The author of this article provided the government with a study, which proposed to include the part of Art. 74, which the commission had neglected. However, the government disregarded the suggestion and approved the amendment as prepared by the Commission.

The House of Representatives confirmed the first part of Art. 74 as received, but added the second part in a manner, which lacks suitability. The text of the article now reads as follows:

If the House of Representatives is dissolved the government shall resign within a week from the date of dissolution; and its head may not be designated to form the government that follows.

It is to be observed, in this respect, that the king alone is the one who appoints prime ministers,23 without consulting political parties, for Jordan has never had a majority party, except the government of Sulaymān al-Nābulsī which lasted five5 months and twelve days, i.e., from October 29, 1956, to April 10, 1957. As such, the added provision addresses the king and instructs him: “You are not permitted to appoint the Prime Minister of the dissolved Government to be the next Prime Minister.” What the House of Representatives wanted to convey is that the prime minister who has dissolved the House would be biased if he were to form a new government to hold the elections and therefore he should not be allowed to do so. Although the article in its paraphrasing of 1954 constitutes a more polite and suitable text which serves the same purpose, the new, rather impolite text of the second part was adopted and the Senate approved it.

Another point of criticism to raise here is that paragraph 1 of Art. 74 provides: “If the House of Representatives is dissolved for any reason, the new House shall not be dissolved for the same reason”.

It is obvious that in order not to dissolve the new House for the same reason, the reason of dissolving the former House must be stated in the decision of dissolution. As mentioned before, to date all consecutive Houses have been dissolved before the end of their term, but none of the decisions of dissolution mentioned a reason for any of the dissolutions. This 60-year-long practice should have drawn the attention of the Commission to the importance of amending the paragraph in a manner which directly requires mentioning a reason for dissolving the House, such as: “The reason of dissolving the House of Representatives should be stated in the decision of dissolution.”

(p. 734) Nevertheless, neither the Royal Commission nor the government nor the House of Representatives have paid attention to the advice published by interested Jordanians who were keen to change the above practice through an obvious provision.

H.  The Constitutional Amendment of August 2014

On August 14, 2014, Prime Minister ʿAbdullāh al-Nasūr surprised the Jordanians when he announced that Arts. 67 and 127 of the constitution would be amended. Four days later, the government presented the two amendments and on August 24, 2014, the House of Representatives approved said amendments. After the confirmation of the Senate, the amendments were signed by the king and published in the Official Gazette No. 5299 of September 1, 2014.

1.  Art. 67

The amendments deleted paragraph 2 of Art. 67, which was introduced to the constitution in 2011, and replaced it with the following:

An independent commission shall be established by a law to administer parliamentary and municipal elections and any general elections pursuant to the provisions of law; the Council of Ministers may assign to the independent commission the administration of other elections or the supervision thereof at the request of the entity legally authorized to conduct those elections.

The essential change in this respect is that the amendment added municipal elections to the duties of the commission. The purpose of adding paragraph 2 to the constitution is to remedy the complaint of Jordanians regarding forging the elections by the Ministry of Interior, which used to administer and supervise the elections.

In the view of the author, the new paragraph will not remedy the defects complained of, for according to law No. 11 of 2012 and its amendments, the independent commission is composed of five high-ranking employees appointed by the government and has no staff for supervising the elections and thus will have to depend on the human resources of the Ministry of Interior. However, on December 8, 2012, King ʿAbdullāh the Second formed a Royal Committee for preparing a Charter for a National Integrity System. His Majesty said in his royal decree: “We decided to select the following eminent figures as members of the committee …” and stated 12 persons, amongst them the prime minister, the Speaker of the Senate, the president of the Judicial Counsel, and the author of this article. Due to the well-known fact that elections are often forged, the Committee, after long discussions, was persuaded and decided that the Law of the Independent Commission should be revised during the first six months of 2014, so that the Commission will be formed of highly qualified judges and will enjoy functional and administrative independence.24 In this respect, the independent commission of judges will appoint a judge for supervising and tallying each ballot box in the country.

Unfortunately, even though the Charter was approved in a National Conference on November 30, 2013, under royal patronage, to date none of the suggested amendments have been enacted. Moreover, on April 14, 2014, a royal decree signed by the government (p. 735) was issued for the appointment of five government employees as the Board Members of Independent Commission.

2.  Art. 127

The amendments also added the following paragraph 3 to Art. 127:

Notwithstanding of what is provided for in Art. 40 of the Constitution, the King shall appoint the Commander of the Army and the Director of Intelligence, dismiss them and accept their resignation.

According to Art. 40, the king shall exercise his powers by a royal decree signed by the prime minister and the ministers or minister concerned. When considering Arts. 40 and 127.3 together, the conclusion will be that the paragraph added to Art. 127 vests the king with absolute power with respect to the appointment of high-ranking executive officials. The question here is: Who will be responsible before the House of Representatives regarding any misconduct or corruption, if any, of the Commander of the Army and the Director of Intelligence? Although Art. 45 confers onto the government the power of administering all internal and external affairs of the state, and Art. 51 makes the Prime minister and the ministers jointly responsible before the House of Representatives for the public policy of the state, the government has nothing to do with the appointment of the Commander and the Director, and, accordingly, it can in no way be held liable. On the other hand, the king cannot be held liable either, for according to Art. 30 of the constitution, His Majesty is immune from every liability and responsibility.

In the view of the author, the advisors of the king and his inner circle who are accountable for the above-mentioned paragraph 3 added to Art. 127, turned our state from a constitutional monarchy into a presidential monarchy and harmed the king and the royal family. Moreover, on April 18th 2016, the Jordanian Government surprised its people by sending a number of provisions to the House of Representatives for amending the Constitution. At the time of writing these words, the amendments had been approved by the House of Representative but have not been voted upon by the Senate. According to the information available to the present writer, these amendments focus on granting the King more absolute power chiefly by making Him the exclusive and only authority to appoint every single member in the Senate (including its president), the Chairman of the Judicial Council, all the Judges of the Constitutional Court, and the Commander of the Police Special Forces. Similar to the mentioned amendments of 2014, the current amendments retained the King’s immunity from liability and responsibility.

IV.  Important Issues Ignored in the Reform Process

A.  The Senate as a Government-controlling Body

Since 1952, the legislative body has been composed of the Senate and the House of Representatives. Contrary to Art. 24 of the constitution, which provides that the people are the source of all powers, the members of the Senate are still appointed and dismissed by a royal decree signed by the government and then by the king. These provisions are still in force despite the fact that the Senate is actually supposed to be a legislative body and in charge of supervising the government. Legislation coming to the Senate from the House of Representatives for approval can be delayed and its enactment may eventually be averted in the Senate. One of the core demands of the Jordanian people is to abolish such a Senate, (p. 736) especially since its existence contradicts the principle which makes the people the source of all powers. If it is necessary that such a House remains, it should consist of representatives elected by the people. Nevertheless, public demands to this effect have been neglected and the structure of the Senate remains as it is.

In comparison, Arts. 60 and 63 of the Moroccan Constitution emphasize that in order to convey the will of the people, the Senate and the House of Representatives should both be elected.

B.  Democratic Legitimization—The Elections

Since the establishment of political parties is an integral element of parliamentary systems, the king has no other choice but to appoint the leader of the majority party represented in the parliament to form the government. Otherwise, the House will not grant the government a vote of confidence. In its turn, the minority party will form the opposition. Naturally, the majority party will carry out the plan or program upon which it was elected.

In Jordan, Art. 16 of the constitution emphasizes that Jordanians have the right to form political parties. In addition, Art. 35 provides: “The King appoints the Prime Minister and may dismiss him or accept his resignation”. In law and practice, over these 36 years during which Martial Law existed, Jordanians were deprived from establishing political parties, as according to Jordanian criminal law, forming a political party was a crime. This period lasted until 1992, when a law was issued allowing the formation of political parties. The conditions and various punishments provided for in the new law coupled with the fear embedded in the society due to past practice hindered the growth of parties. The only real example of a mature political party is the Muslim Front Party, which is the political front of the Muslim Brotherhood, a movement which has officially existed since 1945 as a religious society. The Muslim Front Party was formed in 1992 when the formation of political parties was legalized. The influence gained by the Muslim Front Party was not the result of a mature political party law but rather a result of the decades of social work by the Muslim Brotherhood. To illustrate this, we note that in the elections of 1989, before the party law existed, the Muslim Brotherhood gained 20 seats in addition to seven allied seats out of a total of 80 seats of the House of Representatives.25 The members representing the Muslim Brotherhood became members of the Muslim Front Party immediately when it was formed in 1992, thus forming the largest coalition or ipso facto party in the House of Representatives.26 Unfortunately, in 1993, the House was dissolved before the end of its term and the government issued a provisional law for elections.

Apart from the new elections of 2013, which took place according to the Election Law, No. 25 of 2012,27 all elections during the last 20 years have been governed by provisional laws. In the eyes of Jordanians it has become common practice for the authorities, hidden or apparent, to rig the elections in order to guarantee the required parliamentary seats for the people they employ in the House of Representatives.28

(p. 737) The new election law has not remedied the defects in the electoral system, which have been subject to criticism for the last twenty years.29 The essence of the complaint is that the successive election laws divided the country into constituencies, allocated a certain number of parliamentary seats to each constituency and gave the elector the right to vote for one candidate only. In this context, each candidate depended on his relatives to vote for him, thus reviving old tribal traditions. Accordingly, outcomes of the elections were determined by tribal factors and not by political programs or agendas.30 With time, this electoral system fractured Jordanian society into social enclaves. Under the pressure of demonstrators for reform, the government formed a National Committee for the development of a better electoral system in 2011. After meetings had been held over a period of six months, the committee presented suggestions for a new system, but the government ignored the work of the committee when drafting the Election Law of 2012. As a response, the national political groups and parties boycotted the elections of January 2013.31

The said Election Law raised the number of representatives in the House of Representatives from 120 to 150. Each of the 150 members has/her his own agenda, and it is difficult to speak of any common political program or agenda among any group in the House. As a result, no political party became or was allowed to become a majority and the hidden government continued to direct the political process as well as the parliamentary scene. This prevailing practice precluded any progress in democracy and political life. On March 13, 2016, His Majesty the King signed a new election law32 for the House of Representative, which replaces the law of 2012, but in view of the author, the new law did not remedy any of the defects in the election system.

C.  The Prime Ministers and Their Governments

The king may, by virtue of Art. 35, appoint anyone to be prime minister. It is natural in constitutional monarchies for the king to appoint the prime minister who forms the government.33 In Jordanian practice, however, the king tends to appoint persons whom he personally considers fit instead of being advised on this question by a board of advisors. These prime ministers are appointed suddenly and are dismissed suddenly within months, they do not have any prepared plans or any program for the country and reasons neither for their appointment nor for their dismissal are made public. This is also the case for the ministers who are suddenly called upon to serve in a government that is formed within one or two nights. After a short period of time in office, and before they can even fully grasp the nature of the country’s problems, which would be necessary to formulate the required remedies, the prime minister and his ministers find themselves out of work and a new cabinet replaces (p. 738) them. During the period from January 1, 2011, until October 10, 2012, four governments were dismissed in this manner.34 During the last 20 years, this method of appointing and dismissing cabinets has led to the formation of 22 governments.35

Moreover, a prime minister who knows that he comes and goes at the king’s will without any backing from a political party or parliamentary group will always aim to please the king in order to keep his post. For example, during the past decade it became a common practice for prime ministers and their ministers to announce that their decisions were made upon directions, orders, or recommendations of the king. This practice gives the impression that prime ministers and their ministers are mere employees of the king. This also means that the prime minister will try to please the high-ranking people who form the king’s inner circle, such as the king’s advisors, the Chairman of the Royal Court, or the Director of the General Intelligence Directorate. Though the prime minister and his cabinet have constitutional authority36 and are subjected to constitutional liability,37 the influence of the king’s inner circle has lead cabinets, in practice, to surrender their constitutional authority to the will of the truly powerful.

In reality, the people of the said circle seem to think that the king and not the constitution is the source of the government’s authority. Suffice it here to state what was written in the king’s letter of acceptance of the resignation of Prime Minister Awn Al-Khasawneh on April 20, 2012. The king’s letter included the following statement: “I granted you and your government all authorities, trust and freedom to enable you to perform your duties.”

The question here is whether the king thinks that he is the source of the government’s authority, or whether this is what the inner circle of the king believes. In my view, the letter directed to the prime minister and signed by the king has been written by the king’s advisors.

It is clear here that the language of the letter reflects the understanding that the king’s power, in the eyes of His Majesty’s inner circle, is still the same as it was during the Middle Ages, and this is what the members of said circle want the people of Jordan to believe. Moreover, the members of the circle who participate in nominating prime ministers and ministers still dominate the political scene in the country and direct reform in a manner which suits their interests. The Jordanians know well that these people have become very wealthy without any apparent professional success or without inheriting from a deceased relative while, at the same time nobody dares to question their wealth. As a consequence, corruption has surged, and the performance of various governments has deteriorated to the lowest levels.

The Royal Commission, which suggested the constitutional amendments, did not pay any attention to the loud voices of academics and of the demonstrators recently populating Jordanian streets, all calling for a remedy to the issues described above. No attention was (p. 739) paid to the importance of political parties and their role in any constitutional system aspiring to be a democracy. Any suggested constitutional amendments urging the king to consult parliamentary groups before appointing a prime minister were rejected. In Morocco, as a contrary example, the voices of the people were heard, and, accordingly, Art. 47 of the constitution emphasized that “the King appoints the Prime Minister from the party who gained greater number of seats in the House of Representatives.”

D.  The National Integrity Charter and the Dismissal of Judges

As we have seen, paragraph 1 of Art. 98 read with Art. 40 of the constitution empowers the government to appoint and dismiss the judges. The Royal Committee of the National Charter discussed this matter several times while the author of this article provided the committee with several memorandums for remedying the defect in Art. 98.1 of the constitution. In the end, the Committee was convinced and arrived at the following provision:

Any future constitutional amendments should take into consideration that judges can not be dismissed from office after they are appointed except when the dismissal comes as a result of a criminal offence or behavioral misconduct.38

Unfortunately, the constitution was amended on September 1, 2014, without any regard to what the Royal Committee had decided.

V.  Conclusion

The authorities in Jordan consider the constitutional amendments of 2011 to be a proper response to the voices requesting reform.39 In reality, it is becoming clear to the people that such amendments were merely meant to subdue the demonstrations and protests which were taking place in various towns and cities across the country. The adopted method of procedures coupled with the quality of the resulting amendments reveals the real intention of the dominating power to direct the reform scene. Even the language of the amendments can in no way be considered acceptable by a specialized lawyer.

It seems that high-ranking individuals, who feel that actual reforms and the establishment of democratic structures would deprive them of their privileges, advised the king to reform which does not meet the peoples’ needs.

As a matter of principle, when the executive branch dominates the legislative and judiciary branches, one cannot speak of the adoption of any real reforms or the actual establishment of democracy. In this respect, two essential requirements for structural reform should be taken into consideration.

First, any state authority should be encountered by another independent authority to keep the balance between the authorities in the state. This is why modern democracy is based on three independent authorities.

Second, the opinion and policy according to which the state is governed should be encountered by another permitted opinion and policy to reveal any defect in the conduct (p. 740) and behavior of those in power. This requires actual opposition parties as is the case in Western democratic States. In order for these two factors to become effective, peoples’ enjoyment of actual freedoms are fundamental.

In the view of the author, Jordan should employ further reform in order for the country to become the actual constitutional monarchy and real democracy which the king has repeatedly called for. This new reform can in no way be properly accomplished under the watch of the politicians and king’s advisors, whose position it has always been that any amendment of the constitution is a red line not to be crossed. These advisors forming part of the “old guard” or elite circles of Jordanian society and dominating the political scene are against any real reform. It is natural to expect the old guard to exert their utmost effort in order to protect their own interests in a reform tailored only to their benefit, just as has happened when the king was advised to accept the recent constitutional amendments. The old guard’s drive to protect their own interests, under their claim that it is protecting the king, is in reality the main threat to the king’s throne.

For the first nine months of the year 2011, the demonstrators and protestors in the streets of Jordan refused to speak a single negative word against the king. However, as soon as the outcome of the reform process began to crystallize, some people completely lost faith in the executive and legislative branches and directed their anger toward the king. As such, the demonstrations started using an increasing number of slogans and signs openly critical of the king. This has never happened before. What further attracts the observer’s attention is that this direct criticism of the king started in the southern regions of Jordan, an area where people have always been seen as the backbone of the regime. Yet, said criticism has been increasing over years.

During the last five years, the author of this article has toured most of the cities and towns of the country, lecturing on constitutional reform and having discussions with thousands of Jordanians. The outcome of the discussions confirms that the removal of the king has never been a demand by the people of Jordan. In fact, the opposite has always been the case: The people of Jordan have historically shared a common belief that the Hashemite family, represented by the king, provides a much needed balance and equilibrium in a country like Jordan.40 The fear is that without real reform, independent of and without interference by the old guard, this sentiment shared by most Jordanians might change.

Footnotes:

1  In the following, referred to as the Constitutional Commission.

2  More on the concept and history of the parliamentary system: Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, Oxford 2012) 556 et seq.

3  Belgian Senate, “Bicameralism in Belgium between 1831 and 1993,” http://www.senate.be/english/federal_parliament_en.html#T.1, accessed June 3, 2015.

4  Belgium’s Constitution was adopted on February 7, 1831. In 1920, the constitution was revised for the third time since then, see http://eur-lex.europa.eu/n-lex/info/info_be/index_en.htm, accessed June 3, 2015.

5  Art. 125 of the constitution provides: “The King may by a Royal Decree, based on a decision of the Council of Ministers, declare Martial Law in the whole country […] and issue such orders as may be necessary for the defense of the Kingdom, notwithstanding of any law in force […].” According to material law, the cognizance of deciding the accusation against a citizen, was given to the State Security Court (Martial Court) subject to the approval of the Martial Governor, whose decisions are not subject to any court appeal. Moreover, no one can be employed without the approval of the GID whose decision is final.

6  Text of the Charter: http://www.kinghussein.gov.jo/charter-national.html, accessed June 3, 2015.

7  See also Ambassador Fu’ad Batayneh, The Jordanian Scene (Dar Alafris for Publication and Distribution, Amman 2005) 193–215.

8  Jordanian Official Gazette no 5117 (October 1, 2011).

9  Cf. Madie Schutte, “Post-Election Reflection: Morocco’s 2011 Constitutional Referendum” (August 16, 2011), http://www.consultancyafrica.com/index.php?option=com_content&view=article&id=822:post-election-reflection-moroccos-2011-constitutional-referendum-&catid=42:election-reflection&Itemid=270, accessed June 3, 2015.

10  Moroccan Official Gazette (July 19, 2011).

11  Cf. Manfred Nowak, ICCPR Commentary (N.P. Engel, Kehl 2005) Art. 7 para. 36.

12  Cornell University Law School Legal Information Institute, http://www.law.cornell.edu/constitution/first_amendment, accessed June 3, 2015.

13  Marbury v. Madison (1803) 5 US. (1 Cranch) 137.

14  Jordanian Official Gazette no 5161 (June 7, 2012) 2519 et seqq.

15  Suffice it here to refer, as an example, to case no 5 of 2013, where a voter, by virtue of Art. 71 of the constitution, brought an action before the Court of Appeal in order to nullify the supplementary parliamentary elections for a seat in the second constituency in Amman, and based his claim on the nonconstitutionality of some provisions of the election law. The three judges of the Court of Appeal found serious grounds which support the nonconstitutionality and therefore adjourned its ruling, and referred the claim to the Court of Cassation, which, on the same grounds as the Court of Appeal, sent the file to the Constitutional Court.

In this respect, Art. 20 of the Election Law, no 25 of 2012, provides that bringing any case to nullify the elections is exempted from any court fees, and therefore, neither the Court of Appeal, nor the Court of Cassation requested any fees. In this respect, Art. 2 of the bylaw on Fees of the Constitutional Court provides that a claimant whose plea of nonconstitutionality is referred to the Constitutional Court should deposit 250 Jordanian Dinars to the depository of the Court of Appeal which referred the claim. Though the case is exempted by a clear provision in the Election Law and Art. 2 of the bylaw on Fees of the Constitutional Court does not apply to the case under discussion, the Constitutional Court relied on said Art. 2 in order to dismiss the case.

This ruling is shocking. For many decades it has been a settled practice that in cases where court fees were not paid for any reason, the courts at all levels respite the case until the party pays the required fees, but the Court of Cassation did not do so. Moreover, it was a settled practice that every judge holds a jurisdiction to challenge the unconstitutionality of a law, without any such plea raised before him, since neither the constitution nor the law regulating the establishment of the Constitutional Court prevent such practice. Therefore, and irrespective of whether any required fees have been paid or not, when the Constitutional Court is required to consider the unconstitutionality of a law, the court should examine the finding of the Court of Cassation, evaluate its merits, and judge accordingly. By dismissing the case without challenging the constitutionality of the concerned law, the Constitutional Court conveys the meaning that no judge in Jordan has the jurisdiction to challenge the unconstitutionality of a law or bylaw even when there are merits for said challenge. This means that any judge, who has sworn to respect the constitution, has to apply the law or bylaw, even if he or she is convinced of its nonconstitutionality.

16  Jordanian Law of the State Security Court, no 529 of 1959 as amended.

17  As the reforms in Morocco did by adding Art. 127 to their constitution.

18  For more information on this topic, see Stephen Morton, States of Emergency—Colonialism, Literature and Law (Liverpool University Press, Liverpool 2013).

19  Case no 226 (1997); case no 234 (1997); case no 341 (1997); case no 351 (1997); case no 352 (1997).

20  The government which was in office June 19, 2000–October 25, 2003; see Mohammad Hammouri, “Provisional Laws between Constitutional Requirements and political whims” (2003) Jordanian Bar Association Journal—June paper.

21  Cf. Thomas Fleiner and Lidija R. Basta Fleiner, Constitutional Democracy in a Multicultural and Globalised World (Springer, Berlin 2009) 230 et seq. For a short but precise overview on the topic of the balance of powers and its alternatives: OECD, Governance in the 21st Century (OECD Publications Service, Paris 2001) 46 et seqq.

22  Ambassador Fu’ad Batayneh (n 7); see also Hossein Omar Toaqa (a Researcher of Strategies and National Security Studies, Former General, Late King Ḥusayn Advisor and Ambassador), “General Intelligence Directorate in Jordan between forging the elections and imposing the appointments,” Today’s Opinion Newspaper (London, January 26, 2014); see also Alāʿah al-Fazzah, Al-Sharq Newspaper (Qatar, October 9, 2012) 15, referring to what ʿAbdullāh al-Nasūr said in this respect before being a prime minister; Al-Ghad Newspaper (February 21, 2012)—an interview with Prime Minister Awn Shawkat Al-Khasawneh, where he complained about forging parliamentary elections.

23  Cf. Art. 35 of the constitution.

24  “National Integrity Charter—Executive Plan to Enhance the National Integrity System,” English version (2012) 58, http://inform.gov.jo/Portals/0/Report%20PDFs/7.%20Role%20&%20Performance%20of%20Government/iii.%20National%20Integrity%20Systems/2012%20National%20Integrity%20Charter%20and%20Action%20Plan.pdf, accessed June 3, 2015.

25  Bakr Mohammad Albidoor, The Parliamentary experience of Islamic Movement in Jordan 1989–2007 (Dar Almamoon-Publisher and Distributors, Amman 2011) 7.

26  The Muslim Brotherhood’s Islamic Action Front Party is described as the leading opposition force by Sean L. Yom, “Don’t Forget about Jordan: A Regime Caught between Contagion and Consent,” Foreign Policy (February 2, 2011), http://foreignpolicy.com/2011/02/02/dont-forget-about-jordan-a-regime-caught-between-contagion-and-consent/, accessed January 20, 2015.

27  Jordanian Official Gazette (July 1, 2012) 2965 et seqq.

28  The same observation is made by Danya Greenfield, “Optimism after Jordan’s Election,” Foreign Policy (January 25, 2013), http://mideast.foreignpolicy.com/posts/2013/01/25/optimism_after_jordans_election, accessed June 3, 2015.

29  To the same conclusion comes Daoud Kuttab, “Jordan: Birth Pains of Democratic Politics,” The World Post (April 25, 2013), http://www.huffingtonpost.com/daoud-kuttab/abdullah-ensour-jordan-elections_b_3151902.html?view=screen, accessed June 3, 2015.

30  This evaluation is shared by Laurie A. Brand and Fayez Hammad, “Identity and the Jordanian Elections,” Foreign Policy (January 17, 2013), http://mideast.foreignpolicy.com/posts/2013/01/17/identity_and_the_jordanian_elections, accessed June 3, 2015.

31  For more information, see Curtis R. Ryan, “Elections, Parliament, and a ‘New’ Prime Minister in Jordan,” Foreign Policy (March 11, 2013), http://mideast.foreignpolicy.com/posts/2013/03/11/elections_parliament_and_a_new_prime_minister_in_jordan, accessed June 3, 2015.

32  Election Law for the House of Representatives, Law number 6 for the year 2016, Jordanian Official Gazette number 5386 (March 15, 2016).

33  Cf. for example, Art. 62 lit. d of the Spanish Constitution, Part III Section 14 of the Danish Constitution, Chapter IX Section 171 of the Thai Constitution, Art. 54 para 5 of the Constitution of the United Arab Emirates.

34  These are the government of Samīr Rifāʿī, which resigned on February 1, 2011; that of Maʿrūf al-Bakhīt, which resigned on October 17, 2001; that of Awn Al-Khasawneh which resigned on April 26, 2012; and that of Fāyaz Ṭarāwnah, which resigned on October 10, 2012.

35  For 2011, the report on progress made on implementation of the EU-Jordan ENP Action Plan released on May 15, 2012, by the European Commission talks about three successive governments in nine months, http://ec.europa.eu/world/enp/docs/2012_enp_pack/progress_report_jordan_en.pdf, accessed January 20, 2015.

36  Art. 45/1 of the constitution provides: “The Council of Ministers shall be entrusted with the responsibility of administering all affairs of the State, internal and external […].”

37  Art. 51 of the constitution provides: “The Prime Minister and Ministers shall be jointly responsible before the House of Representatives for the public policy of the State […].”

38  “National Integrity Charter” (n 24) 57.

39  Speech of King ʿAbdullāh II and the speech of the president of the Royal Committee on Constitutional Review Aḥmad al-Lawzī on the occasion of the publication of the constitutional amendments: http://www.jordanoholic.com/blog/news/jordan-constitution-amendments-2011, accessed January 20, 2015.

40  A controversy arises when taking into account that the opposite belief held by some Jordanians might be eliminated before being distributed across the country, such as in this case: “Jordanian Activists Detained for Criticizing King Abdullah II” (Press Release, March 15, 2012), http://www.freedomhouse.org/article/jordanian-activists-detained-criticizing-king-abdullah-ii, accessed June 3, 2015.