Lawyer Khaldoun Salaita

Following is an informal translation of an article originally published in Arabic and can be read in its original format here.

Based on my belief that the judiciary is one of the most important foundations on which a modern state is based, especially since an independent judiciary guarantees the achievement of justice, stability of society and legal positions, and non-abuse of power, I felt obligated to clarify the constitutional violations that have affected Jordanian courts formed under the constitution.

To clarify this, I will first start with a preface to clarify the constitutional and legal basis for the Jordanian judicial system and then address the formation of ecclesiastical courts in Jordan.

Referring to the Constitution of the Hashemite Kingdom of Jordan, we find that it stipulates the following:

Article (27): “The judicial authority is independent and is exercised by courts of all types and degrees, and all judgments are issued in accordance with the law in the name of the King.”

Article (99): “Courts are of three types:

1. Regular courts.

2. Religious courts.

3. Special Courts.

Article (104) Religious courts are divided into

1. Sharia Courts.

2. Councils of other religious communities.

Article (109)

The councils of religious communities are formed in accordance with the provisions of the laws that are issued for them, and these laws specify the competencies of the said councils regarding personal status matters and endowments established for the benefit of the relevant community, while the personal status matters of this community are

Personal status issues of Muslims fall under the jurisdiction of the Sharia courts. The councils of religious communities apply the rules and provisions related to personal status issues that are not considered personal status issues for Muslims that fall within the jurisdiction of the sharia courts, provided that the legislation of these councils regulates the conditions for appointing their judges and the principles of trials before them. Turning to a review of the 2014 Law on the Councils of Christian Communities, we find that it states the following:

Article (2)

A. The Christian communities in the Kingdom that are listed in the table attached to this law may establish courts called “Councils of Christian Communities” that have the authority to hear cases within their jurisdiction.

B. The Council of Ministers, based on the recommendation of the Minister of Interior, may recognize any Christian community, in which case it shall be added to the table attached to this Law after the Council of Ministers’ decision is published in the Official Gazette.

Article (3)

A. For the purposes of this Law, the word “court” wherever it appears in this Law shall mean (Councils of Christian Communities).

b. The President and members of the Court shall be appointed and dismissed by a decision of the Council of Ministers based on the recommendation of the Supreme Spiritual Head of that denomination in the Kingdom, provided that the decision is accompanied by the Royal Will.

Article (16)

A. The Court shall be composed of at least three judges, presided over by the President of the Court or the oldest judge in his absence, and its decisions shall be issued unanimously or by majority.

B. The court may include more than one body.

C. The tribunal shall hold its sessions within the Kingdom at the place determined by the president of the tribunal.

Article (22)

The judgments issued by the Court and the Court of Appeal of the Christian Community shall be enforced by the Execution Department of the regular courts in accordance with the provisions of the Execution Law.

Article (23)

A. Within a period not exceeding one year from the date of entry into force of this Law, judgments issued by the Court prior to its entry into force may be appealed to a duly constituted Court of Appeal outside the Kingdom for the Christian communities.

b. Subject to the provisions of paragraph (a) of this article, and within a period not exceeding six months from the effective date of this law, each Christian denomination shall form a court of appeal in the Kingdom in accordance with the provisions of this law, under penalty of invalidating the decisions and actions taken by the appeal courts formed outside the Kingdom.

C. The president and members of the Court of Appeal of the Christian community shall be appointed and dismissed in the Kingdom by a decision of the Council of Ministers based on the recommendation of the Supreme Spiritual Head of that community in the Kingdom, provided that the royal will accompanies the decision.

Article (25)

The Court and the Court of Appeal of the Christian Community formed by the provisions of this Law in the Kingdom shall

A. Issue its judgments in the name of the King.

B. Record the minutes of its sessions and decisions issued by it in the Arabic language.

From the above, the ecclesiastical courts are formed based on the constitution and according to the Christian Communities Councils Law on two degrees of litigation, namely the first instance and appeal, which must be located within the Hashemite Kingdom of Jordan, and its judges are appointed by a Royal decree and its decisions are issued in the name of His Majesty the King.

But what actually happens is that in some of those courts violate the constitution and the law. Our example is that a church court of first instance issued its decision on a case that was subject to the invalidation of declarations of inventory and exits that included immovable property. The church court of appeal supported that decision and then referred the case to a non-Jordanian party without any jurisdictional status.

From the above, we find that what is happening before some ecclesiastical courts is a clear violation of the constitution and the law, as they are subject to decisions from external parties that do not have any judicial status in the Hashemite Kingdom of Jordan, which constitutes a violation of the independence of the judiciary, which guarantees its neutrality without interference or pressure from any party, whether internal or external.

In light of this, our question becomes legitimate and even a necessity that cannot be ignored. How long will Jordanian courts formed under the constitution continue to operate without any oversight body, and here we mean the administrative oversight carried out by the supreme judicial authority or the competent authorities such as the judicial inspection that monitors the work and behavior of judges and verifies compliance with the laws, as the continued violation of the constitution and law by external parties poses a serious risk to justice, in addition to compromising the sovereignty of the state.