The 9th International Anti-Corruption Conference
CORRUPTION IN THE JUDICIARY
I - Definition of corruption
The institution of corruption is one of the most significant
manifestations of contemporary political systems. It is so much
widespread and strong that no political regime has escaped from it.
The term of corruption stands for a set of crimes that cause harm to
public funds, including the improper use of official office for
personal benefit, getting bribes or commissions on government
projects, in addition to the cases which are brought before the courts
and unlawful gains.
Corrupt practices have become part of everyday business, which is most
dangerous for it simply means that corruption is spreading out in an
astounding way, while the reason behind this is the desire to make use
of official office and benefit from its advantages since wealth is a
permanent source of power.
Corruption spread out in justice as a result of the historical
circumstances experienced by the state such as the weakness of
administration and poor civic education. Corruption is not a new
phenomenon, but it started to spread out with strength only recently.
II - Theories on the inception of corruption
There are two schools which analysed the conditions of the appearance
- The moral school:
This school attributes corruption to moral, ideological and religious
factors. For this school, corruption appeared in society as a result
of the weakness of the moral environment and the belief in religious
values and principles. Putting an end to corruption can only be
achieved through re-instilling these values and principles in society
and providing its members with moral education.
- The political school
This school ascribes corruption to the political system. Where this
system is based on dictatorship and domination, it contributes to the
development of corruption. This school does not deny the existence of
corruption in democratic systems, but these systems are capable of
combating and putting an end to corruption thanks to the existence of
administrative and juridical guarantees, unlike dictatorships and
autocratic systems where corruption is considerably spreading Out due
to lack of control and political accountability.
III - Definition of corruption crimes
Corruption crimes are committed by civil servants alone. Corruption
crimes are typical of this social group. This sort of crimes can
affect all members of society: individuals, workers, businessmen, and
They are considered as financial crimes for they involve making an
improper use of public office and draw benefit from it.
Corruption crimes are considered as being out of reach for justice or
law, which means that they are very difficult to approach. As
corruption is widespread among the ruling classes, these classes are
in a position to face up to any attempt to uncover their crimes. In
addition, they do own the means whereby they can have their cases
closed by means of the immunity they enjoy and the authority they
hold. Handling of corruption crimes which are committed by these
classes does not require the convening of international conferences or
the existence of an anti-corruption organisation.
As to corruption crimes which are committed by ordinary individuals
other than government officials, the public prosecution can indeed
track them and investigate on them and bring their authors before the
courts. Therefore, such crimes can be addressed and controlled by
Because the term of corruption applies to a corrupt authority and not
to an ordinary person and because the corrupt leader is identified by
his office and commits his crime under the umbrella of this immunity,
the public prosecution cannot reach him.
IV - The serious impact of corruption crimes
Corruption crimes are a very grave affair:
- Undermining the national economy The spreading out of corruption
has a deep impact on the national economy and can deprive some
countries from the loans granted by the donor states for fear they
might not be spent as provided for. The fact that the so-called "clean
hands" have been unable to put an end to the institution of corruption
attests to its strength.
- Destroying national conscience Corruption crimes in society lead
to the tearing up of the social fabric, to the dislocation of the
relationships of allegiance and sense of belonging to a community as
well as to the destruction of values among people and to the ruining
of national conscience.
Destroying the sense of law and good, while laying the foundation for
deviation and plundering have become common ways of doing business in
every field today. The destruction of national conscience is in favour
of the hostile forces which indeed draw benefit from these practices.
- Stripping the judiciary from its mission Corruption crimes lead
to stripping off the judiciary from its mission and wasting away
- Eroding people's confidence in government Corruption leads to the
erosion of people's confidence in government. The authority of
government is undermined, and individuals need to be reassured about
their rights for the good conduct of administrative and political
V - Reasons for corruption in the judiciary:
- Domination of the executive authority Domination of the
executive authority is an essential factor in corruption. Judges are
put under the pressure of this authority and are compelled to render
justice in opposition with the law. In Jordan, the executive authority
exerts its full domination over the judiciary. When the Supreme Court
issued in 1998 a decision ruling that the provisional law on
publications and the press adopted by Najali's government was
unconstitutional, this government exerted pressures on the Judicial
Council with a view to pensioning off the president of the Supreme
Court who then became the president of the Court of Cassation. This is
indeed what happened, then the government appointed to this office a
politician who had never before practised as a judge, while such a
position should normally be granted to a professional who must have
spent several years working in the judiciary.
Among other examples of government interference in the judiciary,
there is the case of trading in children whereby the minister of
justice undertook to choose some specific judges nominally to handle
this case. The minister also requested the setting up of a special
court structure for the trial of the person accused in Case N0 144/97
at the Court of Appeal and asked the president of Amman's court of
appeal to choose three judges whom he designated by their names for
handling this case and who happen not to be the court members that
were previously designated in this particular case (trading in
children). This decision left a deep impact among international
The chosen court members considered the case and issued a court
decision that was consistent with the minister's wish.
Such a grave practice infringes upon the judiciary and violates the
principle of the independence of the judiciary which is safeguarded by
When the Supreme Court ruled in its decision N0 226/97 that the
provisional law of 1997 on publications and the press was
unconstitutional in view of its inconsistency with the provisions of
article 94 of the Constitution, the executive authority requested the
president of the Court of Cassation that the High Constitutional
Council which is entrusted with explaining the Constitution and which
includes the president of the Court of Cassation, four judges from
this court in addition to four members from the Council of
Dignitaries, should undertake to construe the provisions of article 94
of the Constitution in order to demonstrate that it is the Council of
Ministers which is competent to assess whether there is a state of
necessity as provided for in this article and which is a prerequisite
for issuing the provisional law. The aim was to overrule the decision
of the Supreme Court which had considered that it was entitled to
exert its control over the state of necessity and the state of
emergency which is a prerequisite for issuing provisional laws by
virtue of article 94 of the Constitution, keeping in mind that the
High Constitutional Council which is entrusted with explaining the
Constitution is not entitled to construe a legal text which had
already been construed by the Supreme Court, for the decisions of the
Supreme Court enjoy pre-eminence above all other bodies. No other
party is entitled to oppose this decision, and even the High
Constitutional Council which is entrusted with explaining the
Constitution is not allowed to provide an interpretation that is
inconsistent with the principles ruled by the Supreme Court in
construing the constitutional provisions, and claiming that the
decision of the Supreme Court may be inconsistent with the
Constitution amounts to an affront to the judiciary.
The president of the Court of Cassation rejected this request in 1998,
for the constitutional principles cannot be subject to compromise and
cannot be construed according to the wishes of the executive
authority, and because the members of the Court of Cassation cannot be
under the authority of the government and do not produce legal
opinions according to the wishes of the executive authority and are
only accountable for the decisions they issue by virtue of the
Constitution and the law.
It is high time that the martial and dictator-oriented turn of mind
which still takes its inspiration from the dark ages and which still
prevails over government policy, it is high time for it to give way to
democratic principles, to end its hegemony and stop giving orders as
to the interpretation of constitutional texts and laws before these
forces are crushed by the people and before they are asked to account
for their interference in the independence of the judiciary and for
the pressures they exert on the highest judicial body in the country
in a attempt to obtain court decisions that are in keeping with their
wishes. Following the refusal by the president of the Court of
Cassation of the minister's request, he became subject to several
attempts from the government to dismiss him from his office.
It is absolutely necessary to rise up against such reactionary ideas
that seek to hold back the country and maintain it in
underdevelopment, in order to allow for the dignity of the judiciary
and the development of the country.
In the report published by the US State Department in 1998 on human
rights, it was stated that in Jordan, the judiciary is not independent
and that it is subject to government pressure. The report mentioned
the case of pensioning off of the president of the Judicial Council
because he had ruled that the provisional law on publications and the
press was unconstitutional. The report also talked about the
scandalous affair of trading in children and the Jordanian
government's interference in this affair.
- Opportunism Opportunism among judges is one of the manifestations
of corruption, whereby some judges seek to gain various material and
moral advantages and benefits. Here are some examples from Jordan: One
president of a court of justice handled the case of a politician on
the basis of some charges. After he ruled that the accused was not
guilty of such charges, he gave a reception to celebrate his
Such practices show to what extent this opportunistic judge had lost
his sense of impartiality. Celebrating the innocence of the accused
influential politician meant that the judge expressed his interest for
this person, which is of course in total opposition to impartiality.
What is worse is that such practices are encouraged. As a matter of
example, this judge got promotion and advancement to the office of
secretary general of the ministry then to the office of president of
Amman's Court of Appeal.
- Fear of the Executive authority The executive authority has been
exerting fear and terror on judges, and such practices contribute to
the corruption of the judiciary. Such pressures are exerted in
different ways, such as transferring them to other occupations in case
judges should issue court decisions that do not comply with the wishes
of the executive authority.
- Bribery Bribery is the worst form of corruption in the judiciary.
Its expansion among judges leads to the undermining of the judiciary
and to the erosion of people's confidence in the state and in its
capacity to treat all citizens on an equal footing. Therefore, the
state loses one of the most significant grounds for its existence.
The former president of the Judicial Council submitted to His Majesty
the late King a memorandum on corruption in the judiciary which had
been studied by the security authorities. Then His Majesty agreed to
implement all the recommendations contained in the memorandum and
informed the president of the Judicial Council of his approval of the
contents in the memorandum, but the prime minister and the minister of
justice did not wish to implement this reform for it would have
affected the interests of several of their friends who were in charge
of enforcing their orders and directives in various fields. So the
memorandum was never enforced. Subsequently, Majali's Cabinet
undertook to conspire against the president of the Judicial Council
and requested the Judicial Council to pension him off, which the
Council actually did.
Corruption crimes, as they become widespread among judges, represent a
grave danger not only for justice but also for the future of the
The absence of anti-corruption action and the protection of the
corrupt leads to the decline of law.
- Improper use of office The improper use of office in various cases
that are referred to the courts of justice to the benefit of private
interests is disgraceful and it is one form of bribery.
Nothing is more dangerous for justice than the interference of the
executive authority in the judiciary, for in that case, the judiciary
loses its independence and becomes dependent on the executive
authority, which leads to the erosion of people's confidence in it and
to the upsetting of its equilibrium, while citizens' rights are simply
- Internal interference Jeopardising the independence of justice
may also come from inside the judiciary itself and from the judges
themselves who permit interference of other judges in their affairs.
Such interference corrupts the judiciary, for, should he not give
satisfaction to a higher-ranking judge, the lower-ranking Jordanian
judge may be subject to measures of retaliation such as transfer to
remote areas or he will simply be disposed of.
In Jordan, there is indeed a famous case of such practices. It is the
well-known case of tobacco and cigarettes in which the major person
accused in this affair was released on bail on the basis of a deposit
amounting to ten million Lebanese dinars. The president of the
Judicial Council exerted pressure on Justice Mohammad Ghaith Mismar in
order to replace the bank guarantee by a legal guarantee. But the
judge refused to do so, then he was threatened and was treated rudely
and accused of being against the state and the political authority of
the country. This led the judge to resign, and as his resignation was
rejected, he requested to be transferred to provisional retirement,
which was also rejected. He then deliberately left his office and the
Judicial Council decided that he was destitute of his position.
- Partiality Partiality in justice is one form of corruption.
Impartiality may be brought about as a result of several reasons such
as kinship, common ideology, religion or nationality or political
Partiality is opposed to neutrality which is the basic component of an
independent judiciary. An independent judiciary consists in issuing
court decisions in total objectivity far away from any bias. Court
decisions should not be influenced by any inclination.
In justice, when groups of judges belong to the same faction, the same
party, or the same family, court decisions cannot be safe from these
The Jordanian judiciary is subject to these factors which are strongly
affecting its impartiality and independence. At least one hundred
judges belong to ten factions, that is an average of ten judges for
each faction who are all closely linked by blood and parent
- Gifts and donations Donations can be made in monies or in kind.
Gifts are offered to the judges with a view to influencing them. This
is also a form of corruption.
- Drawing interest Judges may draw all sorts of material or
moral interest from their office such as a promise to get a higher
position or advancement, to settle their debts or get a bank loan.
- Secret payments One of the worst practices in corruption is that
practice by which the government offers secret payments to the judges,
which contributes to corrupting their conscience. The first prime
minister to have offered secret payments to certain judges was Zaid
Some ministers of justice also used to offer material temptations to
the judges. For instance, Minister Riad Shakaa used to offer positions
in the courts of justice to the judges' sons and daughters and provide
them with private cars for their personal use in order to obtain their
sympathy. He also sent two judges to Abu Dhabi under the pretext of
giving lectures at the Judicial Institute there in order to gain some
financial benefit against their accepting to issue court decisions in
a particular case to the benefit of one of the beneficiaries from the
affair of trading in children.
- Political coverage of corruption in the judiciary Corruption in
the judiciary draws benefit from political protection. The powerhouses
acting within the state and which are interested in maintaining the
judiciary corrupt do indeed provide protection for the corrupt judges
in order to safeguard their interests within the judiciary.