The legal work ahead

The Royal commission designated by His Majesty King Abdullah to reform the judicial system has plenty on its plate.

Fortunately, most members of the commission are well versed in international law and jurisprudence and capable, therefore, of identifying and rectifying most of the shortcoming in the judiciary.

From my perspective as a former member of the quasi judicial UN Committee on Civil and Political Rights and currently the chairperson of the Committee on Economic, Social and Cultural Rights, I can safely say that most of the challenges facing the reform body is the extent national laws and practices conform to international standards emanating from the various treaties that the country signed and ratified, and that thus not only became part and parcel of domestic legislation but take precedence over them whenever there is conflict.

Jordan is a state party to several important human rights instruments, among which the Covenant on Civil and Political Rights, the Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of Persons with Disabilities.

There are of course other complementary treaties that must also be considered, including key ILO and refugee conventions.

It would be impossible for members who are not acquainted with these international instruments and their developing jurisprudence to discern the conflicts that exist between them and national laws.

The Constitution says that international treaties that Jordan had duly ratified supersede national laws when there is a conflict, but not when they come in conflict with the Constitution.

It so happens that this restriction on the application of international treaties is not viewed as legal by international law. 

Jordan has also entered several reservations on some treaties pertaining to women’s equality with men, especially in reference to their absolute right to give their children the Jordanian nationality when they marry a foreigner. 

The commission needs to take notice of the international jurisprudence on the issue of reservations, which says that a reservation that comes in conflict with the core obligation under a treaty is simply unlawful and, therefore, null and void.

The commission must, therefore, address head on this last mentioned issue. 

It must also take note of the fact that no matter how long we in Jordan procrastinate on this issue, it will simply not go away, as all human rights treaty bodies are unanimous in calling on Jordan to amend its existing law that prevents Jordanian women from passing their citizenship onto their children.

The familiar explanation that this is done in order to safeguard the Palestinian nationality and the Palestinians’ right of return to their homeland is political and not legal. This position is simply untenable.

To be sure, there are other bottlenecks in our national legislation that await serious reconsideration, including the random and arbitrary detention of people over a contractual obligation at airports or border crossings.

Jordan has become a victim of the archaic judicial practice of detaining people at airports or border crossings over a civil court judgement against them.

Next thing Jordanian may find out is that non-payment of a water or electricity bill can become grounds for detention and arrest.

This practice is obviously contrary to international norms and needs to be addressed by the commission.