explanatory memorandum on the review of the 1952 constitution of the hashemite kingdom of jordan...

8/6/2019 Explanatory Memorandum On the Review of the 1952 Constitution of the Hashemite Kingdom of Jordan Issued in 2

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Explanatory MemorandumOn the Review of the 1952 Constitution of

the Hashemite Kingdom of JordanIssued in 2011

A brief introduction on the parliamentary and constitutional life in Jordan

during the formation era of the Kingdom:

Jordan was familiar with parliamentary representation before the establishment of the

modern Jordanian state. A representative from Karak was elected for the Turkish

Chamber of Deputies in 1908 to represent the district under the Ottoman rule. He was

re-elected for the same council in 1914.

In addition, six representatives from Transjordan were elected for the first council

established in Syria to represent the southern sector of Syria. In the second council,

the number of Jordanian representatives was raised to seven.

After the state (the emirate) was established in 1921, specifically one month after

Britain recognized the state in 1923, then Prince Abdullah issued a decree to form a

committee tasked with writing a basic law on the basis of which a parliament would

be elected in Jordan. The committee wrapped up its mission in 1924 but the British

mandate blocked the plan.

Any review of the modern history of Jordan since the inception of the emirate and the

popular movements in Jordan would pinpoint a high level and wide scope democratic

awareness among Jordanians, which was not in contradiction with the thought andwill of the emir. But the newly born state struggled with the obstacles placed by the

British occupation and its maneuvers, which impeded democratic progress and

delayed the completion of the necessary constitutional structure, despite the arduousnegotiation rounds Prince Abdullah went into with the British authorities and the

endeavors of national and popular movements that called for completing all theelements of constitutional and democratic life and real independence. The year 1928

was a milestone in the history of this struggle, as it witnessed the drafting of the firstpopular-political document in Jordan, titled: the National Charter, which boosted the

efforts the Prince and national forces were exerting to work out an effective formula

for the country's envisioned Constitution. These efforts were in harmony with the will

and the aspirations of the Prince.

Although the founding Prince had ordered the setting up of a panel tasked to draft a

basic law, which completed that in 1924, the implementation of its recommendations

did not take place before 1928; only after the Jordanian-British Treaty was signed. It

should be noted that the constitution drafted then was not up to the aspirations of the

people, who were seeking to see a complete democratic state.

Until 1946, and despite the declaration of the independence of the country, which

emerged as a kingdom then, the constitution did not go into full force before 1947.

Despite improvements and progressive amendments to some of its provisions, the

constitution was incomplete and unable to meet the needs of a modern state. It wasneither capable of responding to the aspirations of citizens to build a full-fledged


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democracy, especially with the major regional developments pertaining to the Jewish

occupation of a large part of Palestine. Then came the unification of the East and

West Banks during Jericho Conference and the formation of the first Parliament split

equally between representatives from both banks. This parliament endorsed the union,

setting as a condition the preservation of the Palestinian identity. That was on April

24, 1950. Then other developments surfaced: The two-bank Parliament was dissolvedand new elections were held for the 1950 Chamber of Deputies, which remainedfunctional till 1954.

It is worth highlighting in this context a remark from the address His Majesty the late

King Abdullah I delivered at the House. It was a statement of special significance wequote from historical records:

"You have joined my march over the past years and I will join yours in the coming

ones. It will be under your constitutional responsibility and I will offer fatherly

guidelines".

In implementation of that, the government formed a committee to draft a constitution

that was submitted to Parliament. The document had a contractual or semi-contractual

nature, especially since it was adopted after the unification of the two Banks was fully

established. That was the 1952 Constitution, which was issued after the assassination

of the founding King in Jerusalem. He was succeeded by His Majesty the late King

Talal bin Abdullah. The Kingdom entered a new era of its political development,

having at hand one of the best and most progressive constitutions in the modern Arab

history1.

1952 Constitution

In the Official Gazette, issue No. 1093 on January 8, 1952, the most importantdocument in the political and social modern history of the Hashemite Kingdom of

Jordan was published, seen as a very ground-breaking and progressive step in the

development of political life in the Arab World.

It started as follows:

"We, Talal the First, King of the Hashemite Kingdom of Jordan, in accordance with

Article 25 of the Constitution, and in pursuance of the decision of the Senate and

House of Representatives, hereby approve this revised Constitution and decree itspromulgation".

It is worth mentioning that this Constitution clearly emphasizes in its preamble and

the general provisions two basic principles that govern the democratic approach. In

Article 1, it explicitly stipulates that the Kingdom's "system of government isparliamentary with a hereditary monarchy".

In Article 24, under the chapter covering powers, it stipulates:

1Some of the references include Dr. Abdullah Tawalbeh's "Parliamentary Life in Jordan". Dr. Kamel

Abu Jaber's "Parliament in the Kingdom of Jordan" and "Constitutional Law," by Dr. Adel Hiari.


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(i) The Nation is the source of all powers.

(ii) The Nation shall exercise its powers in the manner prescribed by the present

Constitution.

Meanwhile, Articles 25, 26 and 27 include provisions that call for separation betweenthe legislative, judicial and executive powers while maintaining balance in a flexibleway that facilitates cooperation between the powers without any of them infringing

upon the jurisdiction of the other. It states how each of these branches exercises itspowers as authorized by the Nation and stipulated in the Constitution. These articles,

among others, constitute the pillars and constants of constitutional democracy.

The 1952 Constitution, which crowned the long struggle of the Jordanian people

under their inspired leadership, set the foundations for constitutional life and the

democratic process. It is still viewed with high esteem by the people. Regardless of

the changes that have been made in the past era, the Constitution remains the corner

stone and the beacon that illuminates the way ahead and guides the successful marchof our noble people. It is the safe threshold that leads to modernization and

development and the guide for any movement seeking reform and positive change that

might be required under certain circumstances and in light of the natural course of

life.


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Revision of the 1952 Constitution

By the Royal Committee tasked with reviewing the Constitution-

2011

The Constitution of the Hashemite Kingdom of Jordan is classified as a relatively

rigid document in the sense that any amendment to its provisions is subject to stricter

measures than those need to amend a regular law. A constitution is described as

flexible if it was amendable in the same manner needed to change laws.

Article 126 of the Constitution sets conditions to endorse constitutional amendments,

including that such amendments are passed by a two-thirds vote of both Houses of

Parliament (the Senate and the Chamber of Deputies). In all cases, no constitutional

amendment should go into effect without the King's endorsement. The 1952Constitution has been subject to 30 amendments so far, some were dictated by

external and international developments, while others came in response to internalnecessities and conditions and to the emerging needs of the Jordanian state as deemed

necessary by the competent authorities when the changes were effected. A list of thechanges made is compiled in Appendix (1).

Reviewing these amendments, the historical context and the conditions under which

they were made, we concluded that some of these were necessary under the

circumstances prevailing then, while the changes made to other provisions are no

longer valid because the conditions that dictated them are over. To keep such

amendments unchanged might become a burden and an obstacle hindering progresstowards a more progressive model of democracy that is compatible with the vision of

His Majesty the King. In fact, some view these amendments as a threat to the

development and reform process and the political and socio-economic progress

envisaged by the leadership and aspired by the Jordanian people.

The Hashemite leadership has foreseen the need to revisit these amendments and see

if it was essential to keep them in light of the changing conditions in the region andthe world. The leadership understood that maintaining the majority of these changes

might be interpreted by some as an obstacle to the envisaged development it seeks forits people to unleash their potential and creativity to build the future they aspire to.

Meanwhile, the leadership has been aware of the fact that the world is changing andsocieties undergo transformations and face challenges to all aspects of development.

These include the mechanisms of government and state administration andrequirements of success in catching up with the spirit of the age and modernizing the

social, political and economic structures. In fact, the Hashemite leadership has

foreseen the future and the coming challenges very clearly and believed in the need to

respond to these challenges. It has called and is still calling for consistency with the

future vision of the modern state and has undertaken from the very beginning a

pioneering role to introduce the necessary changes and achieve reform and

development. It has been well-aware of the importance of developing political work

and the political system so as to maintain its leading role in ensuring political andsocial balance in state administration, especially since our political system was


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founded on a Constitution based on separation and balance between powers,

preventing any of these power to infringe on the other and ensuring that each enjoys

integrity and independence so as to realize the ultimate goal of government, namely,

to achieve the best level of a decent and stable life for the noble Jordanian people.

Accordingly, the leadership has called for revisiting the Constitution, which is the

supreme and most important document in the Kingdom's political and intellectualheritage that has posed as a testimony to the country's pioneering role in terms of itsnational achievements and its contribution to the human civilization. This document

has served as the covenant and the robust social contract that preserves the socialfiber, diversity and pluralism and entrench the principles of our system of

parliamentary monarchy that is based on the rule of the law and sovereignty of theNation.

As the Hashemite leadership has always enjoyed farsightedness and commendable

prudence and because it is fully aware that what is required is well-studied change and

reform that is planned away from instant emotional reactions and spontaneous

responses to emergencies and short-term needs and that maturity, experience, patienceand conscious analysis are the best means to achieve what people wish in any society,

the Royal committee for reviewing the Constitution was entrusted not only with

revisiting the constitutional amendments that were the focus of a recent debate, but

also to carry out a comprehensive revision of the constructional provisions in this

prestigious document that has a special place in the hearts of Jordanians and which is

trusted as a reliable source referred to when there is a debate is over any political,

national or social issue or over the way to revive political life within a constitutional

context and improve the performance of political parties and Parliament so that theNational Assembly can aptly carry out its legislative and monitoring duties and the

role of the judiciary is consolidated as an independent referee between all authorities,agencies and parties. The judiciary should always remain a robust institution at all

levels and in all forms of litigation.

In his letter to the committee, His Majesty expressed hope that this would stimulate

the process of renewal in terms of structure, thought and performance and enhance

our democratic process so as to build a new Jordan where the potential of its young,conscious and creative people is unleashed to achieve a level of political performance

that leads to wider public participation in decision and policy making, protects

national accomplishments and defends freedom, justice, democracy and all the noble

values that our people hold dear: tolerance, chivalry and respect for human rights, and

selecting for public posts only those who are qualified and trusted by the citizens.

The Royal committee has been honored by this assignment and is fully aware of theimportance of the mission as a sacred national duty. It has handled the job with the

sincerity and objectivity required away from any consideration other than achievingthe best for our noble people and fulfilling the task we have been assigned to by the

Hashemite leadership.

The committee worked non-stop for three months, during which it carried out acomprehensive review and an in-depth study of the Constitution and the amendments

that had been introduced to it. The committee received a considerable number of

significant legal and constitutional opinions that entailed suggestions for amendmentsto provisions and principles or proposed additions. It also followed what the media


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published of articles related to the topic. Such proposals and opinions were very

enriching to the process and of great benefit to the members of the committee, who

also referred to numerous studies specialized in constitutional issues in several world

countries, taking most of these into consideration after a deep comparative study to

determine if these opinions apply to the evolution and development of constitutional

systems in countries that were the focus of the studies in question. The committee alsolooked into the new trends in the field of constitutional studies and political systemsand the circumstances surrounding these systems and how responsive these trends are

to the national needs and necessities ensuing from the process of political andconstitutional reform, without compromising the established principles that govern

democratic life in general, having also become an integral part of the human heritage.These principles are not different from the basic guidelines of the Jordanian

Constitution in force.

Having said that, we also took into consideration the changes that are sweeping theglobe and the challenges arising from the fast-paced developments that engulf the

entire world. The aim was to ensure that we are on the right track to achieve thegenuine political reform that responds to the democratic transformations in the region

and the world and brings about the highest level possible of social concord and

deepens the values of democracy, social justice and human rights and dignity in a

manner that does not contradict with Jordan's national and historical constants and the

ultimate goals of the political reform it seeks. We sought through our work to

revitalize the mechanisms of democratic action so as to ensure the widest political

participation and the highest degree of social peace at the minimal human cost.

Undoubtedly, the guidelines included in His Majesty's letter to the committee, which

were consistent with and responsive to the increasing public desire to see wide-scope,

sincere, sustainable and developable reforms, served as guidelines for us and helped

achieve the best results. So did the recommendations of the National Dialogue

Committee and the outcome of the continuous political action by groups in the

Jordanian arena, who proudly recognize the achievements of the Jordanian people and

its leadership through a long era of continuous building and development, which was

not necessarily flawless or immune against the influence of the wide differences inopinion and, at times, the different paths taken at the political and social levels.

As we stated above, the Jordanian Constitution of 1952, regardless of the amendments

it has seen as a result of external conditions or, sometimes, unsound opinions that

have had their side effects resulting in slow progress in the modernization anddevelopment process that should have moved on at a faster pace, has always been a

reference for the nation, a beacon and a haven to which we have resorted to correct

wrong situations and overcome obstacles, congestions and failures, thanks to the

values of democracy, social justice, freedom and equality it embraced.

The committee tasked with reviewing the Constitution concluded that certain

amendments should be introduced and others removed (out of what has become a

necessity) from the Constitution, which has provided and still provides the political

and social reference framework for the process of development and modernization

and the right response to the present and future challenges.


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Emphasizing its respect and appreciation of all parties that might hold opposing views

to what have been concluded, the committee asserts that it was driven by a desire to

foresee the future, meet the requirements of the modernization process and learn the

lessons of the past and present, with a view to realize the objectives stated in the

Royal letter of designation and meet the aspirations of our great people to achieve a

brighter future and proudly lead a life of national and human dignity where theirdreams of better livelihood come true and noble human values that are part of theirspiritual, psychological and religious heritage and collective message, prevail.

The committee was keen to bring the proposed amendments closer to the Royal vision

and national consensus and to respond to the requirements of political andconstitutional development. In the following part, the committee would like to

highlight the major amendments it painstakingly made with the guidance of the Royalletter, detailing some of the reasons behind the decisions.


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Recommendations of the Royal committee for Constitution Review

Chapter Two: Rights and Duties of Jordanians

1- Article 6: Two paragraphs, 2 and 4, were added:

Paragraph (2) reads: Defending the homeland, its land and people's unity and

maintaining social peace are sacred duties of every Jordanian.

Paragraph (4) reads: The family is the foundation of the society. It is founded

on religion, morals and patriotism. The law preserves its legal entity,

strengthens its ties and values, protects under it motherhood and childhood andcares for youth and people with disabilities and protects them from

exploitation.

The mandating reasons behind including these two paragraphs are obvious.

They respond to developments and transformations societies have witnessed

and it has become necessary to protect the society though binding and decisive

legal provisions.

2- Article 7:

A new paragraph (2) was added to Article 7, stipulating: Any infringement onthe rights and public freedoms or sanctity of private life of Jordanians is a

crime punishable by law.

That is to emphasize the right of exercising public and private freedoms andhuman rights.

3- Article 8 has become as follows, consisting of two paragraphs:

1- No person may be arrested, detained, imprisoned, have his/her freedomrestricted or prevented from free movement except in accordance with the

provisions of the law.2- Every person who is arrested, imprisoned or his/her freedom is restricted,

must be treated in a way that preserves his/her human dignity. It is

forbidden for him/her to be tortured (in any form) or harmed physically or

mentally, as it is forbidden to detain him/her in places outside of those

designated by the laws regulating prisons. Any statement extracted from a

person under duress of anything of the above or the threat thereof shallneither bare any consideration nor reliability.


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4- Article 11:

The phrase" or any part thereof" was added to Article 11, which has to do with

expropriation of properties, to become:

No property of any person or any part thereof may be expropriated except forpurposes of public utility and in consideration of a just compensation, as maybe prescribed by law.

The aim is to support the freedom to property ownership and prohibit

expropriation.

5- Additions were made to Article 15, to read:

1. The State shall guarantee freedom of opinion. Every Jordanian shall befree to express his opinion by speech, in writing, or by means of

photographic representation and other forms of expression, provided thatsuch does not violate the law.

2. The State shall guarantee freedom of scientific research. It shall alsoguarantee the freedom of literary, artistic and cultural creativity if not

contrary to public order and public morals.

3. Freedom of the press, publications and mass media shall be ensured withinthe limits of the law.

4. Newspapers shall not be suspended from publication nor shall their permits be revoked except by a judicial order in accordance with theprovisions of the law.

5. In the event of the declaration of martial law or a state of emergency, alimited censorship on newspapers, publications, books, broadcasts and

other means of communication in matters affecting public safety andnational defense may be imposed by law.

6. Control of the resources of newspaper shall be regulated by law.It should be noted that a very important amendment was made by adding a

general provision (Article 128) which ensures that laws are free from any

provision that would impair the substance of the rights adopted by the

Constitution or affect their fundamentals. In other words, by virtue of the

amendments made, laws that drafted to regulate freedoms and rights are

explicitly prohibited from compromising basic freedoms and rights.

6- In Article 16, the word "associations" was added to Paragraph 2 after the phrase

"establish societies" and to Paragraph 3 after "establish societies" to remove any

ambiguity in interpretation and because both share the same reasoning.

7- Article 18 was changed to read:

All postal, telegraphic and telephonic communications and other means ofcommunication shall be treated as secret and as such shall not be subject to

censorship, suspension or confiscation except by judicial order in accordancewith the provisions of the law.


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The aim was to fully protect personal freedom.

8- In Article 20, the word "basic" was added before "education" to go with the

international term.

9- In Article 27, the word "independent" was added after "The Judicial Power" todecisively assert the independence of the judicial power.

10- Article 33 was amended to read:

1. The King declares war, concludes peace and ratifies treaties.2. Peace, alliance, trade and maritime treaties and other treaties which entails

modification in the territory of the State, impinge on its sovereignty rights,

financial commitments on the Treasury or affect the public or private rights of

Jordanians shall not be valid unless approved by the National Assembly. In no

circumstances shall any secret terms contained in any treaty or agreement be

contrary to their overt terms.

The word "agreements" was removed because depending on its rank, it does not

reach the level where it is ratified by the King.

11- In Article 42, the phrase "not holding a nationality of another state" was addedafter "No person shall be appointed a minister unless he/she is a Jordanian". That is to

make sure that people in power are only loyal to their homeland and to prevent anyconflict of interest.

12- The phrase "or by any other legislation" was removed from Article 45 to

emphasize the Council of Ministers' general mandate over all state affairs and prohibit

delegating any of these powers or responsibilities by virtue of a regular law to any

other party, and keep the matter within the Constitution due to the importance of

restricting the general jurisdiction over state affairs to the Council of Ministers and to

prevent any abuse of law or loose wording of laws in a way that might compromise

the principle of Cabinet's general mandate. It is also aimed at ensuring the

determination of responsibilities and the scope of accountability in the event of

violations. All matters related to state affairs must be linked directly to those parties

concerned as stipulated in the Constitution for which they are held accountable and in

order to prevent any other department or institution from infringing on the authorities

of the party that has the principal mandate as authorized by the Constitution throughexplicit provisions.

13- Article 50:

This article was re-phrased by adding "or death" with regards to the Prime Minister

due to the similarity in nature and to prevent any confusion in such an occurrence.

Also, the phrase "[having automatically] been dismissed from their offices" was

removed, keeping the word "resigned", which is more legally accurate and realistic.

14- Article 54:

1. The last sentence in Paragraph 3 " the Speech from the Throne shall beconsidered to be a statement of its policy for the purposes of this Article"


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was removed and replaced by Paragraph 4, which reads: If the Chamber of

Deputies is not in session, it will be summoned to convene in an

extraordinary session, during which the government has to present a

statement of its policy and request a vote of confidence on the basis of the

said statement within one month of its convening

This is compatible with the genuine democratic approach, which requiresthe government to present its policy statement that represents its own

program and approach, on the basis of which it seeks a vote of confidencewithin a month, instead of taking the easy way and hide behind the Speech

from the Throne. To win House confidence, as the case is with establisheddemocracies, the government must articulate its program and political

vision for purposes of confidence on the one hand, and parliamentary

monitoring and accountability, on the other.

2. A fifth paragraph was added as follows: If the Chamber of Deputies isdissolved, the government has to present a statement of its policy andrequest a vote of confidence on the basis of the said statement within one

month of the convening of the new Chamber.

This amendment has the same mandating reasons of Paragraph 4.

15- Article 55:

This article has been amended and a new provision introduced to address theissue of trying ministers in a way that is firmly consistent with democratic

traditions and to prevent abuse of laws during implementation. A newauthority is suggested to be in charge of trying ministers, enabling the

judiciary to carry out the job in a direct and uncomplicated manner. The articlereads:

"Ministers shall be tried for crimes attributed to them resulting from the

performance of their duties before the Court of Appeal in the capital. These

cases are heard by a panel of five judges appointed by the Judicial Council.

Decisions of the Court shall be taken by a majority vote."

With this, things are back to normal and the judiciary has restored its power,which means that there are no more exceptions from the rule of overall

judicial jurisdiction. Ministers will have sufficient guarantees, but they will

receive no preferential treatment that necessitates special arrangements as they

are citizens and should be tried before regular courts for violations attributed

to them in accordance with the basic principles of justice and equality before

the law.

16- Article 56:

This article was replaced with a new text to govern referral of cases to the

attorney general. The article now reads:


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"The Chamber of Deputies is entitled to refer ministers to the Attorney

General, stating the reasons justifying such a referral. The referrals decision

should be issued by a majority of the members of the Chamber".

The proposed text regulates the new situation and at the same time ensures

ministers the necessary guarantee by setting the approval of a two-thirdsmajority of the Chamber of Deputies as a condition, which creates balance

between monitoring and accountability and ensures that such a constitutional

power is not abused, without compromising the legislative power's right ofmonitoring.

17- Article 57:

A substantial change has been made to this article as result of the amendment

made to the trial of ministers. The original text was cancelled and replaced

with the following:

1- The Court of Appeal shall apply the provisions of the Penal Code in force inrespect of crimes specified therein. A special law shall specify the crimes for

which ministers shall be responsible in cases where such offences are not covered

by the Penal Code.

2- A minister who is accused by the Attorney General shall not be suspended fromoffice except after a final ruling of his/her conviction is issued. His/her

resignation shall not prevent the institution of criminal proceedings against

him/her, or the continuance of his/her trial.

This is necessitated by the new provisions governing trial of ministers, with

ensuring the necessary guarantees in terms of applying the provisions of thelaw and principles of justice and rule of law on the one hand, and to provideguarantees to prevent abuse of these provisions and ensure respect for the

principles of justice and fairness on the other.

Chapter Five: The Constitutional Court

18- Article 58:

Under this article and the following Articles 59 and 60, the establishment of a

constitutional court is stipulated. Article 58 consists of two paragraphs asfollows:

1- A constitutional court shall be established by a law in the HashemiteKingdom of Jordan based in Amman. It will be an independent and

separate judicial body, and shall consist of nine members, including the

president, appointed by the King. The quorum of Courts sessions will be

present when seven of its members at least including the president, and in

his absence, his deputy presides the session. The rulings and decisions of

the Court are issued by the majority of six members at least.

2- The term of membership in the Constitutional Court is four years, subjectto renewal. The members of the Court shall not be dismissed during theirmembership.


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19- Article 59: under this new two-paragraph article, the wording becomes as follows:

1- The Constitutional Court shall monitor the constitutionality of laws andregulations in force and issue its judgments in the name of the King. Its rulings

are final and binding on all authorities and all. Its rulings will take effectimmediately unless another date is specified by the ruling. The ConstitutionalCourts rulings will be published in the Official Gazette within fifteen days

from the date of issuance.2- The Constitutional Court has the right to interpret the provisions of the

Constitution if so requested either by virtue of a decision of the Council ofMinisters or by a resolution taken by the Senate or the Chamber of Deputies

passed by an absolute majority. Such interpretations shall be effective upon

publication in the Official Gazette.

20- Article 60: It reads as follows:

Only the following authorities have the right to challenge the constitutionality

of laws and regulations in force before the Constitutional Court:

1. Council of Ministers.

2. Senate.

3. Chamber of Deputies.

4. If a plea of unconstitutionality was raised before any court, it must refer it to

the president of the Court of Appeal with which it is affiliated. The presidentof the Court of Appeal has the right to refer the matter to the Constitutional

Court if deemed justified.

21- Article 61: After the amendment, it reads as follows:

1- The minimum age of the members of the Constitutional Court is fifty. Themembers are selected from among current or former judges of the Court of

Cassation, current or retired law professors at universities or legal experts

and specialists.

2- The law shall determine the manner in which the Court functions, how it ismanaged, how to appeal before it and all related matters, including its

procedures, rulings and decisions. The Court shall begin its work after its

relevant law comes into effect.

The establishment of a constitutional court is an extremely significant juncture

in the accelerating efforts to apply democracy in a manner ensuring

consistency with the highest international criteria. It provides a critical,

feasible mechanism that is binding on all parties, including the administration,

state agencies, the three powers and all citizens in the sense that such a

mechanism is prone to sustain the rule of law, lead to the adoption of the principle of legitimacy as the basis of the democratic state and preserve

professional, social, spiritual and religious values. At the same time, itmaintains a balance that is reflected in the protection of all forms of human

rights and freedoms, keeping up with developments in the concepts of humanrights protection, preventing the administration from abusing rights, and the


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exercise of all the citizens' rights stipulated in the Constitution and laws,

including the freedom of speech and freedom of assembly, and ensuring that

human dignity is protected and abuse of power and all practices condemned by

human, international and national values are prevented.

The issue of establishing a constitutional court has received considerablesupport in all the studies, letters, suggestions and legal opinions expressed bycitizens of all walks of life and social strata and levels of education.

The committee paid special attention to and went into a lengthy discussion of

the issue. It conducted a study and discussed all the opinions and suggestionsit received, regardless of how differing they were. It balanced between all

these suggestions taking into consideration the subjective conditions and

realities that make each society distinct from others in its political visions for

reasons related to geographic, demographic, philosophical and historical

considerations, starting from the inception of the state as a modern entity and

ending with establishing an efficient democratic life. In the final analysis, theconstitutional court is the best mechanism among all other alternatives

available to solve or manage differences, respect pluralism, apply the

principles of democracy, including the rule of law and equality before the law,

achieve legitimacy, prevent monopoly power or infringement of a power on

another, practice sound management of crises that face democratic

performance, and set the principles and traditions that are prone to promote

human dignity and freedoms and enable the individual to play his/her role at

its best towards the homeland and the political system they have embraced.

Chapter Six

The Chamber of Deputies

22- Article 67 has been amended by adding Paragraph (1) at the beginning:

"The Chamber of Deputies shall consist of members elected by secret ballot in

a general direct election and in accordance with the provisions of an Electoral

Law which shall ensure the following matters and principles:1. Establishing an Independent Commission to oversee elections.2. The right of candidates to supervise the process of election.3. The punishment of any person who may adversely influence the will of

voters.

4. The integrity of the election process at all stages".

This paragraph was added as experience has proved there is a need for setting

up an independent commission to oversee elections, away from the influence

of any party, so as to ensure more guarantees for fair and transparent elections

without any interference. The suggestion was also made in response to therecommendations of the National Dialogue Committee and demands by


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citizens and in order to provide the election process with all elements that are

prone to ensure complete fairness and transparency under the rule of law.

23- Article 69:

Paragraph 1 of this article was amended, extending the term of the Speaker ofthe elected Chamber of Deputies to two years instead of one year, starting the

beginning of the ordinary session. Parliamentary experience has proved that

the one-year term is not appropriate due to the confusion ensuing from theannual election of the Speaker, leading to adverse effects on efforts to reach a

mature parliamentary experience and a legislature that performs its duties withefficiency and swiftness.

24- Article 70:

It has been amended to lower the minimum age of candidacy for the Chamberof Deputies to 25 calendar years. The aim is to pave the way for young people

to utilize their huge potential and empower them to play their political role in

development and ensure their effective participation in developing political

life.

25- Article 71:

Some provisions of this article were amended to read:

The Judiciary shall have the right to determine the validity of the election ofthe members of the Chamber of Deputies. Any voter shall have the right to

present a petition to the Court of First Instance whose jurisdiction covers theelectoral district of the deputy whose election validity is contested within

fifteen days of the announcement of the results of the election in the OfficialGazette. The petition shall include the legal grounds for invalidating the

election of any deputy. The Courts panel examining such a petition shall be

comprised of three judges. Its rulings shall be final and cannot be challenged

by any method of appeal. Its rulings will be issued within thirty days from the

date of filing of the petition.

This amendment was meant to remove a source of complaining and criticismof the elections process and to respond to citizens' wish to revoke the

Chambers power to look into contests filed against its members. The long

experience and practice have proved the futility of such a formula and the

need for a neutral judicial party to look into these contests. This is one of the

most important amendments introduced.

27- Article 73:

This article was amended by removing the fourth, fifth and sixth paragraphs,and keeping the first, second and third paragraphs. The Committee found that

the need for such paragraphs does not exist anymore.


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28- Article 74:

This article was amended to consist of two paragraphs (1 and 2). It is highly

significant as it stipulates:

1. "If the Chamber of Deputies is dissolved for any reason, the new Chambershall not be dissolved for the same reason.2. The government, during whose term the Chamber of Deputies is dissolved,

should resign within one week of the dissolution date".

This amendment was also meant to achieve balance between the executive andlegislative powers as dictated by democratic principles, because the

government in such a case derived its legitimacy from the confidence granted

by the Chamber of Deputies, which ceased to be, let alone that it agreed to the

dissolution decision.

Part III

Provisions Governing Both Houses

29- Article 75It has been amended as follows:

First: In paragraph (1), Item (b) the phrase " Who claims foreign nationality or

protection' was replaced by a more accurate and clear phrase, because the

concept of claiming a foreign nationality or protection does not exist any more

and is not realistic. To avoid confusion or wrong interpretation, it became: (b)

"Who holds a foreign nationality".

Second: Items (g) and (h) were re-numbered to become (f) and (g), while the

original Item (g) was replaced by Paragraph 2 in the amended version and the

original Paragraph 2 was replaced by Paragraph 3.

The new Paragraphs 2 and 3 have become:

2- Each member of the Senate and Chamber of Deputies should refrain duringhis/her membership from contracting with the government, public legal

persons, public companies, state-owned enterprises or other legal persons, orcontribute thereto whether the contract is concluded in his/her capacity as

entrepreneur, supplier or contractor and whether in person or through anintermediary.

3- Should any Senator or Deputy become disqualified according to paragraph

1 of this Article during the term of office or should it appear after election that

he/she lacks one or more of the qualifications or contravenes paragraph 2 of


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this Article, his/her membership shall, by a resolution of two-thirds of the

members of the Senate or Chamber of Deputies, be revoked and his/her seat

declared vacant, provided that such a resolution, if passed by the Senate, is

submitted to the King for ratification.

It is obvious that the amendment to the Article's paragraphs and items wasmeant to provide members of both Houses with guarantees and warn themagainst falling in a conflict of interest, which might have grave consequences.

30- Article 78:

Paragraph 3 of this article was amended to extend the ordinary session of

Parliament to six months instead of four. The amendment came in response to

the need to raise the efficiency and swiftness of the legislation process. The

last line was rephrased to include the phrase "the six months" instead of the

"four months" in line with the same amendment.

31- Article 84: Paragraph 1 of this article was amended as follows:

1- No meeting of either House shall be considered duly constituted unlessattended by the absolute majority of members of either House, and shall

continue to be valid as long as this majority of the members of either

House is present.

32- Article 88:

It was amended by removing the last part to become:

When a seat becomes vacant in the Senate or in the Chamber of Deputies by

death or resignation or for any other reason, it shall be filled by appointment inthe case of a Senator and by the holding of a by-election in the case of a

deputy within a period of two months from the date on which the Government

is notified of the vacancy by the House. The term of the new member shall be

for the remaining part of the term of his predecessor.

33- Article 89:

Paragraph 1 of this article was amended by adding the Article (29) to the

paragraph.

34- Article 94

An important amendment was made to this Article. Paragraph 1 thereof reads:

1- In cases where the National Assembly is not sitting or is dissolved, theCouncil of Ministers has, with the approval of the King, the power to issue

provisional laws to face the following emergencies:

A- General disasters.B- State of war and emergencies.


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C- The need for urgent expenditures incapable of postponement.The rest of the paragraph remained unchanged.

This is an extremely significant amendment. It will prevent to a great

extent infringement of the executive power on the legislative power anddeprives the former from ability to resort to provisional laws withoutstrictly observing the restrictions provided for in the amendment. It is

hoped that such an amendment would eradicate once and for all the trendtowards issuing provisional laws by the executive power without clear

controls or compliance with the strict constitutional restrictions.

Chapter Seven

The Judicial Power

35- Article 98:

This article was amended to consist of two paragraphs. The new Paragraph 2

reads:

"A Judicial Council shall be established by a law. It will be responsible for

matters related to civil courts and shall have the sole right to appoint civil

judges. The law shall explain the Councils powers in matters relating to the

career of judges."

This paragraph explicitly stipulates the establishment of a Judicial Council by

virtue of a constitutional provision that was not existent before. The provision

defines the authorities of the council and stipulates that it has the exclusivepower to appoint judges of civil courts without any interference by any other

authority or party, and therefore, it consolidates the independence of thejudiciary to a great extent without the need for opinions or interpretation.

36 - Article 100:

An important amendment was made to this article, to which the following

phrase was added: "whose law shall state that the administrative judiciary

should be at two levels". This constitutes a new development in the judicial

field and justice as it ensures individuals the right to appeal decisions of courts

through a two-level litigation system. The provision stipulates that

administrative courts also apply the two levels of litigation to ensure

maximum justice and meet international criteria.

37- Article 101:

This article saw one of the most important amendments, as it stipulates thatcivilians shall not be tried in a criminal case before by a court all of whose


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judges are not civilians, with the exception of crimes of high treason,

espionage and terrorism. Therefore, civilians cannot be tried except by a court

all of whose judges are civilians. Paragraph 2 of the article was amended

accordingly.

A new paragraph (3) was added to the article. It reads:

1- "Courts hearings shall be public unless the court decides that they shouldbe secret in the interest of public order or morals. In all cases, the verdictshall be pronounced during a public session".

Another addition was Paragraph 4, which provides for a basic international

and human principle:

"The accused is innocent until proven guilty."

38- Article 109:

It was amended by adding Paragraph 2. Many have demanded such an

amendment. It reads:

Such laws shall determine the procedures to be followed by the Tribunals of

the Religious Communities in the trials they hold and the requirements of

appointing their judges.

39- Article 110:

It was amended by adding a new paragraph (2), which reads:

1- "A State Security Court shall be established. Its jurisdiction is limited tohigh treason, espionage and terrorism".

This provision limits the crimes seen by the State Security Court. It is obvious

that laws related to the establishment of this court should abide by the

exclusive jurisdiction defined in the Constitution in the sense that no additions

are allowed.

40- Article 112

Paragraph 1 of this article was amended by adding "and budgets of

independent institutions" so that all state agencies, including those financially

and administratively independent are subject to the provisions of the state

budget law.

40- Article 119:Paragraph 1 of this article was amended by adding "the Senate", which will,

too, receive the Audit Bureau's report in addition to the Chamber of Deputies.Also, the phrase "any of the two Chambers demands" was added.


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Chapter Nine: General Provisions

41. Article 122:

A very important amendment was made to this article based on the changes to

authorities and the previous articles. It consists of three paragraphs, the thirdof which is the most important, as follows:

1- A High Tribunal shall be is composed of the Speaker of the Senate asPresident and eight members, three of whom shall be selected by ballot by

the Senate from amongst its members and five members to be selected

from amongst the judges of the highest Civil Court in order of seniority. In

case of necessity, the number shall be completed from the presidents of the

lower courts, also in order of seniority.

2- The High Tribunal shall have the right to interpret the provisions of theConstitution if so requested either by virtue of a decision of the Council of

Ministers or by a resolution taken by the Senate or the Chamber ofDeputies passed by absolute majority. Such interpretation shall be

implemented upon its publication in the Official Gazette.

3- (New paragraph) Article (122) of this Constitution shall be deemed voidonce the Constitutional Courts law comes into effect.

It is clear that such an amendment abolishes the High Tribunal for theInterpretation of the Constitution, which is replaced by the Constitutional

Court. This is a critically important development in the constitutional contextof the democratic process that has multiple dimensions and effects. In fact, the

existence and composition of the High Tribunal for the Interpretation of theConstitution was subject to continuous criticism from several viewpoints. This

provision shall end its existence as soon as the Constitutional Court Lawcomes into effect.

42- Article 128:

This article has also been amended in a way that it acquires a special

importance and long-term significance. It has extremely significant effects and

would decisively foster the principle of separation between the powers and

preventing the infringement of the executive power on the legislative power. Itis prone to further protect the citizens and their freedoms.

Paragraph 1 of the amended version is a new addition, while the original

Paragraph 1 was re-numbered to become Paragraph 2.

Paragraph 1 in the new proposed version is the more important. It reads:

1. The laws issued by virtue of this Constitution to regulate the rights andfreedoms shall not impair the substance of these rights or affect theirfundamentals.


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In fact, the introduction of this provision is a guarantee to preserve the

freedoms and rights of citizens stipulated in the Constitution and a shield that

repels all attempts by the executive power to include in the laws it drafts any

provisions that might undermine any of the rights and freedoms guaranteed by

the Constitution or compromise any of the guarantees the Constitutionprovides regarding human rights protection and safeguarding human dignityand rights against any violation and under any pretext, even if such

infringement comes in the form of a law.

This provision is a true embodiment of the political will to make real changeand improve legislative practices by competent authorities. It was meant to

block any practice of authoritarian legislation or that which would take away

from people the rights they are entitled to enjoy as humans. It was also meant

to provide real protection of freedom in real life practice and serve as a

guarantee to safeguard human rights.


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Appendixes

1. The amendments made to the 1952 Constitution2. A table listing the recommendations and amendments proposed by the Royal

committee for reviewing the Constitution

3. A letter of acknowledgement to all who sent suggestions, contributions andstudies to the committee.

explanatory memorandum on the review of the 1952 constitution of the hashemite kingdom of jordan...

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