Open Letter to Members of the Royal Committee for Amending the Constitution

5 July 2011: Dear Members of the Royal Committee for Amending the Constitution

The Euro-Mediterranean Human Rights Network, Human Rights Watch and the International Federation for Human Rights welcome King Abdullah’s initiative to form a royal committee to revise the constitution, in order to move towards a rights-respecting democracy.

Our organisations urge the royal committee to pursue its efforts in a broadly inclusive manner, including in consultation with civil society, and on the full range of issues.

Our organisations recommend the royal committee address the call by Jordanians for strengthening a respect for rights in a state that upholds the rule of law and protects pluralist democracy and human rights.

The current discussion about revising Jordan’s constitution offers a unique opportunity to strengthen human rights. A basic starting point should be the constitutional affirmation that the kingdom’s international treaty obligations take precedence over domestic law, a principle court rulings have already acknowledged. Such an affirmation in the constitution would encourage Jordanian judges, prosecutors, law enforcement officers, and lawyers, to refer to provisions of international law, in particular, international human rights law, in the judicial process. Jordanian judges have already occasionally mentioned international human rights law, for example the Convention on the Rights of the Child, but there is much room for strengthening the domestic judicial process’s compatibility with Jordan’s international obligations. Furthermore, inclusion in the constitution of the supremacy of international treaty law over domestic law would encourage and guide revisions of domestic law to close gaps with and remove contradictions to, international human rights law.

The constitution should also be amended to include other basic principles of law with important effects on human rights. One area requiring improvement is extending the applicability of the constitution to all persons under Jordanian jurisdiction, including non-Jordanians – as required by the International Covenant on Civil and Political Rights – except for certain political rights, such as some rights related to the participation in public affairs. There should be no discrimination, for example, in the right to freedom of expression, between a Jordanian and a non-Jordanian resident of the kingdom. Another, related area, is the right to non-discrimination, and to equality before the law. Non-discrimination on the basis of sex, race, religion, and national or social origin is a basic principle to which Jordan has already subscribed by virtue of its international obligations. A constitutional provision enshrining non-discrimination as a principle of domestic law could serve in particular women who remain disadvantaged under current Jordanian laws, for example, in personal status, and in passing on their nationality to their children.

Our organizations specifically urge your committee to strengthen the rights to freedom of expression, association, and peaceful assembly in the constitution by removing current limits on those rights under domestic laws that exceed those permitted under international law. International law allows only those narrowly defined restrictions on these rights that are in conformity with the law and are necessary in a democratic society for national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others. Jordan’s domestic laws seriously undermine those three rights, and a stronger constitutional affirmation of those rights will provide a basis to review and amend those laws that abridge them.

For example, provisions of the penal code continue to criminalize defamation and vague and overbroad speech offenses against state security. For example, articles 188 to 199 of the penal code carry criminal sentences for speech found to defame the king, his family, and government officials, but also non-persons, such as the national flag, the military, the judiciary, and government institutions. Articles 118 and 150 of the penal code criminalize speech that is found to disturb Jordan’s relations with other states or that stirs up sectarian strife. There should be no criminal sanction for speech other than that which directly incites violence.

The newly amended Public Gatherings Law before parliament, while an improvement over the previous law, continues to use an exceedingly broad definition of “public gathering” as any meeting at which a matter related to public policy is discussed, even those in private. The proposed 2011 change to the law replaces the obligation to seek permission for public gatherings with an obligation to notify the authorities of such gatherings two days in advance. Since it is difficult to notify the authorities in advance of even casual, private meetings at which matters of public policy may come up for discussion, the law continues to give the authorities powers to break up such gatherings and to pursue legal action against the meeting’s organizers, undermining the right to peaceful assembly.

Article 164 of the penal code also criminalizes peaceful gatherings of seven people or more when the purpose of the gathering is to commit a crime or “disturbing public order,” an ill-defined concept in Jordanian law.

The Charitable Societies Law of 2008, as amended in 2009, puts onerous restrictions on civil society organizations and grants the government excessive powers of interference in the activities of nongovernmental organizations (NGOs). For example, the prime minister must approve all foreign funding to Jordanian NGOs; the government has the power to dissolve the NGO or replace its management with government appointees, and has the right to access internal documents, including meeting minutes and financial documents.

We also urge that the constitution include an explicit prohibition of torture and ill-treatment consistent with the Convention against Torture and Cruel, Inhuman and Degrading Treatment or Punishment. Jordan in 2008 criminalized torture but failed to criminalize ill-treatment, defined as cruel, inhuman or degrading treatment or punishment. Given the recurrent allegations of torture in Jordan, even if somewhat fewer over the last two to three years, a constitutional provision against torture would send a clear signal and strengthen prosecutors’ and judges’ hands in eliminating this prohibited practice.

A constitutional provision prohibiting enforced disappearance consistent with the International Convention for the Protection of All Persons from Enforced Disappearance would likewise bring Jordanian law closer to international norms.

We also recommend including references to the rights to work, education, health, and social security. Currently, the constitution provides only for the right to work, but Jordan’s international obligations under the International Covenant on Economic, Social and Cultural Rights, carry with them state duties for the progressive realization of these rights. A constitutional provision could guide lawmakers and government officials in the formulation of specific laws and policies addressing those rights.

Your committee is already considering constitutional changes resulting from recommendations made by the national dialogue committee regarding new election and political party laws. We commend a proposed change to include an independent electoral commission under judicial supervision, and further urge that the constitution reference the international right to periodic, free, and fair elections. Currently, the fairness of elections is not adequately guaranteed, namely the vote of one elector is not equal to the vote of another. In Jordan, electoral districts have vastly unequal numbers of voters. The Human Rights Committee, which monitors state compliance with the International Covenant on Civil and Political Rights (ICCPR), has interpreted the right to participate in public affairs to provide for the equality of each person’s vote: “The drawing of electoral boundaries and the method of allocating votes should not distort the distribution of voters or discriminate against any group and should not exclude or restrict unreasonably the right of citizens to choose their representatives freely” (General Comment No. 25 on article 25 of the ICCPR).

Lastly, we urge the committee to strengthen the independence of the judiciary. To that end,Jordan should abolish the special courts the constitution currently allows. The State Security Court, one such special court to which the prime minister may refer any case and whose majority of judges are military officers appointed by their superiors, lacks independence. The Police Court is another special court that tries members of the Public Security Department, including when they are charged with abusing civilians, such as when a prison guard beats a detainee. The police chief appoints the Police Court’s prosecutors and judges, who are all members of the Public Security Department. These courts are difficult to reconcile with the principle of an independent judiciary, which is necessary to uphold the right to a fair trial.

Constitutional guarantees of the principles and rights described above would greatly benefit Jordan’s democratic reforms.

In consultation with civil society organisations, constitutional reforms should:
– enshrine the supremacy of international human rights treaty law over domestic law;
– amend guarantees of the rights to freedom of expression, peaceful assembly, and association, to reference any limitations on these rights as provided for in international human rights law;
– enshrine the rights to education, health, social security, and work, as defined in international
law;
– strengthen democratic processes by including guarantees for the fairness of elections in addition to strengthened guarantees for free elections, such as an independent election supervision body;
– enshrine the prohibition of torture, including of cruel, inhuman, and degrading treatment, and the prohibition against enforced disappearance;
– guarantee equal rights between men and women in all areas, including civil, political, economic, social and cultural rights;
– enshrine the principle of non-discrimination on the grounds of sex, race, religion, political or other opinion, national or social origin, property, birth or other status, in accordance with international human rights law;
– enshrine a commitment to parity in representation of men and women in political and public bodies and undertake to take all necessary measures to this effect
– enshrine the equality of all persons before the law and guarantee the constitutional independence of the judiciary, including by abolishing special courts such the State Security Court;
– ensure constitutional guarantees pertain to all persons under Jordan’s jurisdiction, except for certain political rights.

We thank you for your time and attention.