By Mohammed Ersan

Translated by Julia Thomason 

Queen Noor Al Hussein, the mother of Prince Hamzah, who is the half-brother of Jordan's King Abdullah II, has raised questions about the constitutionality of the formation of the Royal Family Council, which recommended that the King restrict Prince Hamzah's communications, residence, and movements against the backdrop of the so-called "issue of sedition."

The Queen said in a tweet, "We must remain calm and respect the sovereignty of His Majesty the King, for the good and stability of the Jordanian people. According to legal experts, the council, which was formed in accordance with the Royal Family Law of 1937, is a violation of Jordan's 1952 Constitution, and the right to representation is key."

There have been widespread reactions about the legality and constitutionality of the Royal Family Council's decision, and whether the council has the right to restrict freedoms without specific periods of time, or if that is entrusted to the Jordanian legislature. 

Laith Nasraween, Professor of Constitutional Law and former member of the Jordanian Constitutional Court, explained that "unless any legislation is passed to repeal or amend the Royal Family Law of 1937, this law is considered effective, and no constitutional or legal doubt may be attributed to it. The council was established under the terms of the Royal Family Law and does not violate any constitutional provision. In addition, the composition of the council includes representatives of the constitutional authorities.”

Nasraween added that the right to representation "applies if this council is a judicial authority, but this council is not considered a judicial body and therefore its decisions are not considered judicial rulings. Rather, its role was to express an opinion in the case of Prince Hamzah."

According to Nasraween, "the royal letter clearly indicated that the president of the council, formed under the chairmanship of Prince Ali bin Al-Hussein, was present when the King met with Prince Hamzah in March, and listened to the discussion about the actions of the Prince. The contents of this discussion were taken into account when the council reviewed and studied all relevant papers, investigations, and evidence contained therein. The council’s decision was made in consideration of the supreme interests of the State which requires taking precautionary measures to protect them, strengthen their bonds, and face any challenges or dangers affecting the State’s security, territorial integrity, and people."

In response to the question from Arabi21: "Does the Price have the right to appeal the decision?" Nasraween answered, "This decision is not subject to appeal by anyone because it is not an administrative decision."

The Royal Family Council invoked Article 15 of the Royal Family Law of 1937 to restrict the Prince's freedom, which stipulated that "the council shall, at the request of His Highness, express its opinion on any matter concerning the royal family."

The Council consists of its President, Prince Ali bin Al Hussein, and the membership of: Prime Minister Bishr Al-Khasawneh, the Minister of State for Prime Minister Affairs / Member of the Government appointed by Prime Minister Ibrahim Mashhour Al-Jazi, Judge Abdul Hafez Al-Taqla, and the President of the Court of Cassation, Dr. Mohammed Al-Ghazwi. 

However, retired judge, lawyer, and human rights and political activist, Louay Obeidat, told Arabi21: “the issue is different here as it concerns restricting personal and public rights.”

He pointed out that "the provisions of the Jordanian Constitution apply to princes as well. Article 8 of the Constitution states that no one may be arrested, held, detained, or deprived of his freedom - except in accordance with the provisions of the law. Anyone who is arrested, held, imprisoned, or restricted shall be treated in a manner that preserves human dignity.”

"Which means arrest, detention, and restriction of liberty may only take place within the provisions of the law, as personal freedom is the second holiest human right. The jurisprudence of the judiciary stated that legislation should establish a clear legislative framework for the process of arrest, detention, and restriction of freedom, including the relevant authority, justification, and reason for such a restriction in a clear manner,” he added.  

He continued: “This legal framework governing the power to restrict freedom should include adequate safeguards for the person targeted by this procedure in its introduction, consisting of setting ceilings for the periods in which freedom may be restricted - including the restriction of the freedom of communication. Additionally, it should guarantee the right to appeal and challenge the procedure before a judicial authority designated by law, as well as other safeguards on the restricted movement and communications procedures. The safeguards should include informing the target in this procedure of the basis on which he is being held, enabling him to communicate with his lawyer and family members, as well as other guarantees referred to in the conventions on the rights of detainees and arrestees,” according to Obeidat.

"The decision of the Royal Family Council is illegal, unconstitutional, and incompatible with the International Covenant on Civil and Political Rights, which Jordan ratified and published in the Official Gazette in 2006 and has become part of the legislative and legal system," said Obeidat.

In his opinion, the Court of Cassation decided in several provisions, including in Human Rights Judgement 2353/2007, that international treaties and conventions which exhaust all their constitutional stages take precedence over all laws but remain lower than the Constitution. In other words, if the provisions of domestic law are incompatible with the International Covenant on Civil and Political Rights, they apply the provisions of the international conventions and covenants and disregard the ordinary law's conflicting provisions.

Obeidat said: "Article 9 of the Special International Covenant developed a regulatory framework for fair trials and restrictions of liberty. It affirmed that freedom may only be restricted by the provisions of the law, meaning that there shall be a competent authority, that the detainee shall be provided with sufficient guarantees, that the detainee shall be informed of the crime he is to be accused of, and that he shall be guaranteed the right of appeal.” He pointed out that "Article 5 of the Royal Family Law stipulates that the laws in force in Jordan shall apply to members of the Royal Family, except as otherwise stipulated in the law. Therefore, the general basis is for princes to be treated as Jordanian citizens and for the legal system applicable to other citizens to be applied to them as well.”

He continued his legal reading, stating that "the Code of Criminal Procedure in Article 114, the longest article in Jordanian legislation, stipulates that pre-trial detention shall be precluded and shall not be subject to chaos, tampering, temperament, or miscalculation – as it undermines the second most sacred human right, personal liberty - until administrative detention under the Crime Prevention Act, with objection, specify who the competent authority for administrative detention is, in which cases the administrative judge may use power, in which categories the arrest is intended, and what the periods of detention are, while ensuring that the administrative decisions of the judge are appealed to the Administrative Court."

"If the administrative judge abuses this power, the legislator shall grant the victims of this arbitrary arrest the right to file a criminal complaint against the administrative judge and prosecute him for the crime of unlawful deprivation of liberty through the suspension of Article 346 of the Penal Code," he said.

He stressed that "as long as Article 5 of the Royal Family Law equates princes and ordinary citizens as having the same legal responsibilities and being subject to the same legal systems, it has not addressed measures related to restricting the movement, freedom, and communications of princes, nor has it established a special regulatory framework for them. The provisions and legal rules applicable to ordinary citizens regarding these measures apply to princes as well, notably that Article 15 of the Royal Family Law did not grant the Family Council the power to place restrictions on the freedom of any prince or restrict their communications. The article is broadly worded and is not tolerated by the General Principles on Measures of Arrests and Restrictions of Movement and Communications, which should contain a clear framework.”

“In other words, the deprivation of the personal freedom of a prince or any person must be subject to a comprehensive regulatory framework, including the reasons for this matter, guarantees for the accused, and the right to appeal,” Obeidat said. 

In the Royal Family Law, it is clear that "this council, consisting of five members, holds two powers; the first is the right to recommend a civil quarantine to discourage any member of the Royal Family from engaging in acts that may result in a civil obligation, such as concluding contracts, pledging, borrowing and giving. Second is the right to place the King in the position to remove any member of the family, if his actions offend his princely status and the royal family."