CRIMINAL JUSTICE AND

PROSECUTION IN THE ARAB

WORLD
A STUDY PREPARED FOR THE UNITED NATIONS
DEVELOPMENT PROGRAM

PROGRAM ON GOVERNANCE IN THE ARAB REGION

OCTOBER 2004

BY HESHAM NASR, JILL CRYSTAL, AND

NATHAN J. BROWN 1

1 Hesham Nasr bore primary responsibility for researching and initial drafting of the sections on public prosecution. Jill

Crystal bore primary responsibility for researching and initial drafting of the sections on policing. Nathan J. Brown bore
primary responsibility for coordinating, redrafting and editing, and recommendations.
 1

I N T RO D U C T I O N

In recent years, interest in Arab legal systems has greatly increased. Those who focus on
development have increasingly emphasized institutional infrastructure and rule of law issues; those
with more of an interest in politics have given greater attention to legal institutions and mechanisms
of accountability.2 And it is not simply external donors who have increased their interest in the topic;
government officials, NGOs, academics, and citizens within the region have focused considerable
energies on legal and judicial reform. While the region has well-established, deeply-rooted, and
professional legal orders, leaders both inside and outside of government have evinced a
determination to improve existing systems.

However, for the most part, such efforts have focused largely on judges (especially on the
independence of the judiciary) and on specific areas of law (especially commercial law). Such a focus
is warranted, but it leaves important areas of the legal order underemphasized. In this report, we
have focused not on civil law but on criminal law; the institutions and functions that draw are
attention relate to policing, investigation, and prosecution rather than to adjudication per se.

Without questioning the interest in commercial law and the judiciary, we seek to shed light on
criminal justice, police, and prosecutors for several reasons:

• For many citizens of the Arab world, it is the criminal justice system that imposes itself
most directly. Civil disputes require at least one party to initiate legal action; the criminal
justice system assigns initiation to a state official. Police in particular are widespread in
most modern societies and represent the most immediately obvious representatives of
the legal order.

• It is primarily in the criminal justice system that human rights standards and practices
become most relevant. Most governments within the region have committed
themselves to an impressive array of international human rights instruments. Most
constitutions have extensive human rights provisions. Concerns and questions over
implementation and application of these provisions arise most frequently in the criminal
arena.

• More abstractly, it is in the criminal justice system that the three authorities of the
state—but most particularly the executive and judicial—meet and interact. Regional
guarantees of judicial independence and separation of powers are real (though certainly
not beyond improvement).3 But in the realm of criminal justice, such issues become
extremely complex. It is perhaps in the policing function that charges of executive
unaccountability are most acute. And with regard to prosecution, it is remarkable that
almost all Arab states have constructed systems that straddle both the executive and the
judicial authorities. To understand how the various authorities of the state interact—
and how separation of powers actually operates in the Arab world—the criminal justice
system is a necessary topic for investigation.

2See, for instance, the World Bank report Better Governance for Development in the Middle East and North Africa and the UNDP’s

Arab Human Development Report for 2002.

3 See Adel Omar Sherif and Nathan J. Brown, “Judicial Independence in the Arab World,” study prepared for the UNDP,

Program on Governance in the Arab Region, September 2002; and Nathan J. Brown, “Mechanisms of Accountability in
Arab Governance: The Present and Future of Judiciaries and Legislatures in the Arab World,” study prepared for the
UNDP, Program on Governance in the Arab Region, December 2001.
 2

• Finally, the criminal justice system in the Arab world has recently been called upon to
meet some new challenges based on a changed international environment. Money-
laundering and terrorism are of increasing concern domestically and internationally. The
police, prosecutors, and legal framework are now called upon to become significant
actors in international efforts to suppress terrorism and traffic in controlled substances.
But at the same time, these systems are also expected to become more scrupulous in
observing evolving standards of human rights. Meeting either demand would be a
significant challenge; meeting both simultaneously is a difficult task indeed.

Arab criminal justice systems bear a strong family resemblance to each other for historical,
cultural, and political reasons. Significant differences do exist, but the basic structure of policing and
prosecution shows strong commonalities throughout most Arab countries. And these commonalities
often puzzle outside observers, since some structures (such as that for public prosecution) display
some subtle (and quite interesting) differences from analogous systems in other regions.

In this report, we have selected five countries for particular focus, based on their regional
influence and/or friendliness to reform proposals: Yemen, Morocco, Egypt, Jordan, and Lebanon.
Other Arab states not treated in depth in this report still generally share similar characteristics, and
most of our recommendations could be applied to them as well.

Our country studies will focus on both the police and public prosecution. For the police, we will
present two issues: first, the historical development of the police force; second, current issues
involving policing, with a special focus on human rights concerns.

For the public prosecution, we will similarly focus on the structure and function (though since
these tend to be more complex and—paradoxically—better known than for the police, we will
present the material with more of an emphasis on the present than on issues of historical evolution.
We will then turn our attention to issues of appointment and training. Finally, we will examine
recent steps taken in the area of international cooperation, with a special focus on terrorism and
money laundering, two issues that have attracted a great deal of recent concern.

H I S TO RY A N D E VO L U T I O N O F P O L I C I N G I N T H E A R A B WO R L D

The Middle East invented policing: the world’s first civilian police forces arose in Egypt and
Mesopotamia.4 Modern policing, with a professionalized and specialized force distinct from the
military, did not begin in the Arab world until the era of European colonialism in the19th and 20th
centuries.

Under the Ottoman Empire, a distinct police force did not exist. Janissary units performed
routine street and market patrols and other duties today associated with public order and crime
prevention. Although some specialized forces (such as the palace guard) supplemented these units, a
distinct police force did not exist.5 In the Arab provinces, with the exception of Egypt (which
developed an urban police force), Ottoman rule until the 19th century rested heavily on soldiers,
isolated in military garrisons, with few links to the community, maintaining order through
intelligence, local allies, and intermittent force. The abolition of the Janissaries in 1826 and the
creation of a new military force prompted a major reorganization of policing in the Ottoman

4Patrick Adamson, “Some Comments on the Origins of the Police,” Police Studies 14:1 (Spring 1991).
5Glen Swanson, "The Ottoman Police," in George Mosse, ed., Police Forces in History (London: Sage, 1975), 39-56.
 3

Empire.6 In 1846 police functions were separated from the military and in 1870 a new police
ministry was created. By the end of the 19th century, the Ottoman police functioned as a separate
non-military force in Istanbul, paralleling contemporaneous developments in policing in Europe. In
the Ottoman provinces, however, the military role in policing remained strong: spies and informers
continued to provide the information that community-based police elsewhere provided. The military
provided policing when these systems failed.

In the Arab regions, a distinct police force emerged first under European colonialism. Britain
and France developed local police forces largely because they were more cost-effective than using the
military for domestic order. Colonial police forces retained a paramilitary structure and a political
purpose as they emerged from an effort, first by colonial then postcolonial rulers, to maintain not
only general order, but also a particular order and a particular regime. Under the colonial powers and
their successors, the police continued to be reinforced by intermittent military intervention, especially
when containing large-scale opposition to the regime. The police forces that emerged were modeled
on the continental experience: a separate police force for the urban areas, gendarmeries for the less-
populated areas, and military forces when these units failed. Over time these police were typically
integrated as well into a civil (rather than common law) legal system, with separate judicial police
handling criminal investigations and ordinary police handling daily crime prevention and
investigation.

With independence, foreign officers were replaced by national officers (although foreign advisors
often remained), but the basic colonial police model was retained. Typically an urban force, housed
in the Interior Ministry, polices the capital and major urban areas. A paramilitary gendarmerie with
ties to the military polices the outlying areas and is used for intermittent crowd control. When
necessary, the army is brought in. With independence, police education was also domesticated as
training schools were established or those instituted by colonial powers expanded. Most countries
continued to send some officers abroad for training. Some, such as Egypt, began offering such
training to officers from other Arab states.

Security remains a paramount concern of all the regimes and political policing is typically
provided by a variety of overlapping forces consisting of a security service in the Interior Ministry, a
separate independent security service (typically answerable directly to the head of state), and some
internal security provided by the military as well.

Matters involving policing remain very sensitive in the Arab world, and police forces tend to
reveal very little about themselves. This makes gathering information for a report of this kind—
reliant on public information—difficult.

H I S TO RY A N D E VO L U T I O N O F T H E N I YA B A O R P U B L I C P RO S E C U T I O N I N T H E
A R A B WO R L D

The prosecution function in the Arab world emerged in the 19th and 20th centuries. As with the
police, there were some antecedents (with market inspectors, for instance, often responsible for
investigating offenses against the public order in cities), but the current prosecution system is an
evolved version of a system that arose with the era of legal and institutional reform that begun by the
Ottoman and Egyptian governments in the nineteenth century and spreading throughout the Arab
world in the twentieth century.

6See David B. Ralston, Importing the European Army: the Introduction of European Military Techniques and Institutions into the Extra-

European World, 1600-1914 (Chicago: University of Chicago Press, 1990), Chapter 3, “The Reform of the Ottoman Army.”
 4

Almost all Arab countries (and all of those selected for special focus in this report) have adopted
some form of a niyaba system. The term has no precise English equivalent, though it is often
translated as “public prosecutor.” This is an approximation at best (though it will be used in this
report); when structures literally designated as “public prosecutor” exist in the Arab world they tend
to be more clearly part of the executive branch. The niyaba, by contrast, is a quasi-judicial body,
often considered (to a degree that differs according to country and time, as will become clear) part of
the judicial branch of the state. It generally combines investigatory and prosecutorial functions
(again, to an extent that varies from country to country and over time). Members of the niyaba—
whose title is derived from the Arabic word for deputizing or representing—are considered
representatives of the society in fighting crime and ensuring security.

The niyaba evolved in a distinct pattern in the Arab world, showing influence of both external
and internal factors. In the late nineteenth century, when Egypt pioneered the adoption of a civil law
model, it also adopted the French prosecution system. Under the pressure of the British occupation,
but also showing some internal capacity for development, the system evolved in a distinctly Egyptian
way.7 From the beginning, the niyaba was caught between the executive and judicial branches:
investigation of crime was considered essentially a judicial function, though it was also one that
involved supervision of police work (and therefore of personnel employed by the Ministry of
Interior). Prosecution of crime was overseen by the head of the niyaba (al-na’ib al-`amm, sometimes
translated as procureur-general, prosecutor general, or more rarely, attorney general), an official within
the Ministry of Justice. Yet even when prosecuting a crime, a member of the niyaba was not to work
simply to obtain a conviction but instead was to represent the general interests of the society (and
thus take a less adversarial role than might a prosecutor in a common-law system). In Egypt, which
introduced the system to the Arab world, the investigation and prosecuting functions were originally
distinct but eventually were combined; as other countries experimented with the system, they
generally (though not always) combined prosecution and investigation. In addition, the niyaba has
often assumed some auxiliary functions, such as supervision of prisons.

Over time, the judicial character of the niyaba has been emphasized, and many of the
institutional guarantees of independence accorded to judges have been won by members of the
niyaba as well. Indeed, in most countries, the niyaba is now considered a full part of the judicial
apparatus. Yet important elements of its executive characteristics remain: the head of the niyaba is
still generally placed within the Ministry of Justice and members of the niyaba have a supervisory role
over police in the investigation of crime. Indeed, full separation between the niyaba and the
executive is probably not practicable, since establishing the criminal policy of the state—the areas it
emphasizes in suppressing crime—is properly a matter partly of executive concern.

Despite the spread of the niyaba system, significant differences remain among Arab countries in
how they structure its work. In general, the functions of the niyaba can be divided into two main
categories: countries where prosecutors possess both investigatory and prosecutorial powers (Egypt,
Jordan, and Yemen) and countries where prosecutors possess mainly prosecutorial powers while
investigatory powers and functions are handled through judges (Lebanon and Morocco).
Nonetheless, this classification is not strictly applied as prosecutors in the second category do
conduct investigations under different titles or different circumstances, while in the first category the
possibility of having a judge to carry out the investigation exists (i.e. Egypt).

7 See the coverage on the evolution of the niyaba in Enid Hill, Mahkama! Studies in the Egyptian Legal System, (London:

Ithaca Press, 1979) and Latifa Muhammad Salim, Al-nizam al-qada'i al-misri al-hadith, [The Modern Egyptian Judicial system,
1875-1914], volume 1 (1875-1914), and volume 2 (1914-1952), Cairo: Markaz al-Dirasat al-Siyasiyya wa-l-Istratijiyya bi-l-
Ahram, 1984
 5

The relationship of public prosecutors with the Minister of Justice takes many forms in the
selected countries. In Morocco, public prosecutors are bound by the Minister’s orders. Nonetheless
they have the freedom to express their opinions in court to the contrary but only orally. In Egypt and
Jordan, public prosecutors follow the orders of the Minister of Justice in their administrative capacity
but not their judicial one.

This relationship is based on the nature of the public prosecutor’s office itself. Public
prosecutors have executive nature and in many parts of the world they do not enjoy judicial status.
The government’s recognized role in achieving security in the society and implementing criminal
policy makes cooperation essential. This linkage is demonstrated in the case of Morocco where the
legislature entrusts the Minister of Justice in implementing criminal law policy for the state.

This linkage and the powers the Minister of Justice exercises over public prosecutors in some of
these countries suggests that one cannot think of public prosecutors as part of the judiciary per se. On
the other hand, their judicial status strengthens the independence of public prosecutors vis-à-vis the
Minister of Justice and the Executive.

The selection and appointment process in the selected countries have similarities in their basic
requirements viz. nationality, education, personal character, and the selection authority. These
requirements differ in two major respects. Firstly, in Yemen, Morocco, Lebanon and Jordan
candidates are eligible for both a judge’s positions and that of prosecutor. In Egypt candidates are
selected as prosecutors only. Secondly, Jordan requires that applicants for the judiciary have previous
training in the judicial institute. Lebanon, Morocco and Yemen select candidates to join the judicial
training institute and upon satisfactory performance are admitted to the Judiciary. Egypt appoints
prosecutors after which they enroll in the judicial training institute.

The requirements for the entry examination vary as well. This entry examination reflects
transparent and objective selection criteria. Morocco has an outstanding competitive entry
examination, while in Egypt such a requirement is omitted at entry level.

The selected countries adopt formal training programs for public prosecutors in judicial training
institutes. The length of the training programs varies from 6 months in Egypt to 3 years in Yemen.
The variation in length reflects the objective and the curricula of the respective training programs.
Egypt is the only country that provides an exclusively tailor-made training program for prosecutors
while the other countries simultaneously provides training for the bench and the prosecution. This is
largely due to the judicial structure in those countries where candidates are able to start their careers
either as judges or prosecutors, whereas in Egypt they start mainly as prosecutors.

The status and role of the training institutes also vary. Some are organized under the domain of
the Ministry of Justice (Jordan) while some have independent status (Morocco). For some, it is
training institutes for prosecutors while for others it tests their eligibility.

The Office of the Public Prosecutor in selected countries has a particular focus on strengthening
international cooperation with other judicial entities in issues such as extradition. But in this regard
only Egypt has an office for international cooperation within the structure of the niyaba system.

Anti-terrorism legislation and measures have been adopted and applied in selected countries.
Morocco introduced new legislation specifically to fight terror financing. As for money laundering, all
the selected countries are categorized as cooperative in fighting money laundering by The Financial
Action Task Force (FATF), a watchdog sponsored by the Group of Seven (G7) industrialized
nations.
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YEMEN

POLICE

Historical Development

Yemen’s first modern police force, the Aden Police, was established by Britain in 1937. After
independence (following British withdrawal in 1967) and the emergence of a Marxist government in
the south, a Public Security Force was established in the Interior Ministry and developed with East
German aIbid. It consisted of three main divisions: the Armed Police, the Riot and Security Police
and the Rural Police. The Aden Police retained responsibility for the capital and had six divisions:
crowd control, riots, labor disturbances, morals, municipality, and traffic. A Revolutionary Security
Service was also created in the Ministry of State Security.8

While police in the south were under firm executive control via the National Front, in the North,
policing was less centralized and less pervasive. There, the authority of the central government
outside the capital was weak. Public order was (and to a degree is) maintained by tribal leaders who
demonstrated their autonomy from time to time by kidnapping (and usually releasing) foreigners,
typically to bring some political or economic grievance to the government’s attention.

Yemen’s unification in 1990 thus brought together uneasily two very different forces. Following
unification, the government established a single police force in the Interior Ministry, including both
regular police and Central Security. A separate force, the Political Security Organization retained
primary responsibility for internal security, including terrorism, and reported directly to the President.
Southerners, however, complained about this new force, as well as the army, which they held directly
responsible for increased banditry. They also accused the largely northern security forces of attacks
on socialists and their supporters.9 The tensions associated with the unification led to a brief civil
war in 1994.

Current issues

Yemen’s police face a number of problems. The first is the large amount of policing that remains
in private hands. The government has extended its authority in recent decades to most of the
country’s towns; however the tribal rural areas in the north retain substantial autonomy. A recent
International Crisis Group report notes that “the central government has yet to exert full control
over tribes in remote areas.”10 Tribal leaders continue to maintain primary responsibility for policing
throughout much of the country, even to the extent of maintaining their own jails. Even in the cities,
prominent figures have their own bodyguard retinues who continue to clash at times with the
government’s security forces. Yemen also remains a very heavily armed society, with more than
three guns for each citizen.11 The ICG reports that “even heavy weapons, such as anti-tank rockets,
are readily available and have been periodically employed in inter-tribal fights and occasionally in
clashes with the Yemen security forces a well.”12

8Kurian, p. 478
9Paul Dresch, A History of Modern Yemen (Cambridge, Cambridge University Press, 2000), p. 191.
10International
Crisis Group, “Yemen: Coping with Terrorism and Violence in a Fragile State,” January 8, 2003,
www.crisisweb.org, pp. ii.
11Jonathan Schanzer, “Yemen’s War on Terror,” Orbis 48:3 (Summer 2004).
12ICG, “Yemen,” p. 1
 7

Professionalization has increased as police forces are now trained in the police academy in San`a,
but as in other countries professional training has moved farther in the acquisition of advanced
technology than in the subordination of the forces to rule of law.

PROSECUTION

Structure and function

Yemen has a niyaba system for investigation and prosecution and has given legal and
constitutional recognition to the niyaba as part of the judiciary. According to the judicial authority
law, public prosecutors are part of the judicial corps.13

This judicial status is recognized by the 1994 Constitution. Articles 147 and 149 provide that the
judiciary is independent administratively and financially. According to Article 147, “The judicial
authority is autonomous in its judicial, financial and administrative aspects and the niyaba is one of its
sub-bodies. The courts shall judge all disputes and crimes. Judges are independent and not subject to
any authority, except the law. No other body may interfere in any way in the affairs and procedures
of justice. Such interference shall be considered a crime that must be punished by law. A charge
regarding such interference cannot be nullified with the passing of time.” Article 149 provides that
“members of the judiciary and the niyaba shall not be dismissed except under the conditions
stipulated by the law. They may not be transferred to non-judicial posts except with their consent and
with the approval of the relevant judicial council, unless that action was taken as a disciplinary
measure. The law shall regulate the disciplinary trial of the judiciary and it shall organize the legal
profession.”

Thus, in their investigative and judicial functions, members of the niyaba fall fully within the
judiciary. By contrast, in their prosecutorial function they are tied to the executive through the
Ministry of Justice. Public prosecutors follow their superiors, then the Chief Public Prosecutors, and
finally the Minister of Justice.14

The Supreme Judicial Council has exclusive jurisdiction in disciplinary measures over
prosecutors,15 though some monitoring and evaluation work is carried out by judges seconded to the
Ministry of Justice (who refer cases to the Supreme Judicial Council). The judicial disciplinary
committee within the Ministry consists of judges and is headed by a member of the Supreme Court;
they are seconded to the Ministry for renewable two-year terms.16 The committee evaluates the
judge’s work and reports its findings to the Supreme Judicial Council,17 receives complaints against
the judiciary;18 and reports to the Minister of Justice the status of a courts’ performance.19 When a
member of the judiciary is referred to the Supreme Judicial Council for disciplinary measures, the

13 See Judicial Authority Law No. 1 for 1991, art. 50

14 Ibid., art. 54.
15 Ibid. art. 111
16 Ibid. art. 92.
17 Ibid. art. 94,1.
18 Ibid. art. 94,2.
19 Ibid. art. 94.3.
 8

disciplinary committee in the Ministry of Justice prepares the case against him.20 The council may
delegate its powers to a disciplinary committee consisting of 3 members of the council or 3 judges.21

One distinctive element of the Yemeni judiciary—especially in contrast with other countries in
the region—Is that the Supreme Judicial Council is granted control of the judicial budget.22 This has
been a significant demand of judicial reformers in the Arab world.

On a more negative note, the Yemeni niyaba is not able yet to cover the country’s large territory.
There are 223 offices with human working power of 800 prosecutors. In this regard, Yemen has
particular need of infrastructural development, even by regional standards (most countries in the
region complain that physical infrastructure is inadequate). In Yemen, there is particular need for
work related to buildings, equipments and human resources (administrative and judicial) in order to
provide for the basic needs of effective public prosecution function.

Appointment and Training

Rules for appointment, transfer, and privileges for prosecutors are the same as those applicable
to the judiciary.23 They must be Yemeni nationals, hold a law degree, have good reputations, and may
not have been convicted of a criminal offense.24 Candidates are appointed through
recommendations by the Chief Public Prosecutor with a decree from the Minister of Justice for a
two-year trial period.25 The Supreme Judicial Council appoints those who demonstrate competence
to enroll in the judiciary.26 The Chief Public Prosecutor and the First Attorney General are appointed
through a presidential decree.27

Training for Yemen’s prosecutors and judges is carried out at the country’s High Judicial
Institute, founded in accordance with Law No.16 of 1981. Applicants have to pass written and oral
examinations as well as a personal interview. The curriculum consists of a theoretical and a practical
component. The theoretical component lasts for 3 years. Completion of this part grants a trainee two
diplomas: one in Civil Law and another in Islamic Criminal Legislation. The practical training lasts
for 6 months as assistant judge or public defender.

The niyaba supervise the police forces in their criminal justice function.28 Furthermore, the
prosecutors do supervise and oversee the prisons within their jurisdiction to ensure the legality of the
detention and the treatment of prisoners.29

Yemen witnessed two prosecution systems in the south and the northern parts before political
unification led to the adoption of a unified niyaba system throughout the country. There is a need for
training for the existing and new prosecutors. In addition, as explained above, Yemen’s niyaba suffers

20 Ibid. art. 112.

21 Ibid. art 111
22 See the Yemen Constitution, Article 152
23 See, the Judicial Authority Law, supra note 1, art. 56.
24 Ibid. art. 57
25 Ibid. art 59.
26 Ibid.
27 Ibid. art 60.
28 Law No. 39 for 1977, Art. 7
29 Law No 1 for 1991, Art 53
 9

from shortages of both human and physical resources. There is a further need for providing
prosecutors with the logistic support they need for their work. In particular, computerization has
been identified as a particularly pressing concern.

International Cooperation in Criminal matters

The General Public Prosecutor is in charge of international cooperation. Yemen enacted

legislation against money laundering30 and established a watchdog unit31 under the central bank
domain.

The Penal Law of 1976 includes special provisions against terror acts. Articles 104, 105, 122 and
128 penalize acts against the state, public activists, acts against foreign nations’ representatives or
property, and plane hijacking.

M O RO C C O

POLICE

Historical development

Morocco’s police force was established by the French colonial authorities and remains based on
the French model. When Morocco’s long struggle for independence from France (and Spain) ended
in 1956, however, the existing police force had virtually ceased to exist. Policing, such as it was, was
provided by party militias.32 The new government quickly created a police force by reconstituting
what elements it could of the colonial police, cobbling them together with former guerilla units and
using French advisors. In May a government decree created the new force: the Surete Nationale,
under Interior (and later Defense) Minister Muhammad Oufkir. He built this force into a
centralized, powerful, independent, and often ruthless force. During the 1960s opposition to the
government grew and in 1965 the government declared a state of emergency which lasted until 1970.
After riots in Casablanca in 1965, the Surete was also reorganized as an autonomous organization,
directly answerable to the king.33 After coup attempts in the early 1970s, the king strengthened the
paramilitary Gendarmerie to balance the army’s power.

Morocco’s police today are still based on the French model. Morocco has a number of different
police organizations, with overlapping responsibilities, nearly all paramilitary in structure. The Surete
Nationale, Morocco’s primary police force, polices urban areas and falls under the jurisdiction of the
Interior Ministry. The Urban Corps, the largest unit of the Surete Nationale, provides most ordinary
policing in urban areas. Other units include the Border Police, the Auxiliary Forces, the National
Brigade and the country’s intelligence service (Cirection de la Surveillance du Territoire). The Mobile
Intervention Companies provide crowd control and emergency service and also patrol the highways
along with the Gendarmerie. The Royal Gendarmerie, a separate force, polices rural areas. In
keeping with the French model, the Gendarmerie also has responsibilities outside regular policing
duties such as collecting truant children and unpaid taxes and maintaining traffic statistics. Most of

30 Law No. 35 for 2003.

31 Decree No. 48 for 2003.
32C.R. Pennell, Morocco Since 1830 (New York, New York University Press, 2000), p. 300.
33Kurian, p. 264
 10

its officers are seconded from the army. The Judicial Police, once in the Interior Ministry, are now in
the Justice Ministry and handle criminal investigations. Finally, the Royal Moroccan Army intervenes
in domestic disorder from time to time.

Current issues

Beginning in the final years of King Hasan’s rule, a process of political reform began and gained
speed with the accession of King Muhammad in 1999. One of King Muhammad’s first acts was to
fire Driss Basri, the Interior Minister responsible for years of repression. The king also released
thousands of political prisoners and victims of the former governments or their relatives were
allowed to publish their stories, although human rights groups have pressed the new government to
itself publicize past abuses and compensate victims. In 2000 a human rights center was opened and a
government commission began compensating victims of past political repression. This opening,
while important, has been cautious and forward momentum has slowed since 2001. Police have not
hesitated to use force to disperse rallies, whether organized by human rights activists or Islamists.

The police and especially security forces continue to commit serious human rights abuses, often
with impunity as well as engage in more ordinary forms of corruption. Despite liberalization in recent
years, Moroccan and international human rights groups report continuing allegations of
incommunicado detentions, confessions extracted with torture, deaths in police custody, and
arbitrary arrests and detentions. The war on terrorism has also set back police reform. Following
bombings in Casablanca in 2003, one human rights organization claimed that over 2000 people had
been detained.34 New anti-terrorism legislation extended pre-arraignment detention and limited
access to legal counsel for those suspected of vaguely-defined terrorist activities.

PROSECUTION

Structure and function

Like the original Egyptian system and the current Lebanese system (but unlike the other
countries covered in this report), the Moroccan criminal justice system separates the investigation
and the prosecution functions. Thus, while the prosecution is termed a “niyaba,” there are important
structural differences between the Moroccan system and most others covered in this report.

Investigation of crimes is considered a judicial function and is carried out by designated members
of the judicial corps. The law requires that certain grave crimes must be investigated by a judge. In
this case, the prosecutors will assign the case to the judge to be investigated. The other types of
crimes are considered minor and the prosecutors are entitled to primary procedure to prepare the
case for the court. If the prosecutor feels the need for further investigation s/he would assign the
case to the investigation judge requesting certain elements to be investigated.

When investigation is judicial, prosecutors fall under the authority of the Minister of Justice.35
This is justified partly by the view that prosecution is a legitimate executive function, intimately tied
to policy concerns. In essence, the Ministry of Justice oversees the criminal policy of the state,
including prosecution.

34 Middle East Watch, Morocco: Counter-terror Crackdown sets Back Rights Progress, October 21, 2003.

35 See the Basic Order of Judiciary Law, adopted in 11/11/1974. art 56.
 11

There is some tension inherent in this arrangement, since public prosecutors in Morocco are
legally considered part of the judicial corps.36 Article 82 of the Constitution states that the judiciary
shall be independent from the legislative and executive branches, but prosecutors unlike judges are
under the authority of the Minister of Justice.

The Minister of Justice is responsible for implementing criminal policy of the Kingdom through
the Public Prosecutors.37 The Minister of Justice has the authority to inform the public prosecution
of any criminal misconduct and order it, in writing, to prosecute.38 Prosecutors are obliged to follow
those instructions. Nevertheless, prosecutors are free to express their opinion orally in courts.39
Promotion and evaluation for public prosecutors lies as well within the Minister of Justice’s
domain.40 Moreover, The Criminal Affairs Department in the Ministry of Justice has the authority to
supervise the public prosecutors in the conduct of criminal cases.41

Morocco reformed its criminal procedure law recently, providing more rights to the defendants
and incorporating new mechanisms for settling disputes. The presumption of innocence has been
asserted, the police reports are subject to the scrutiny of the court and the defendants and
substituting imprisonment with other lesser penalties subject to the approval of the victim has been
recognized.

Appointment and training

Appointment in the Office of the Public Prosecution follows the same process and pattern as
that for judges. Applicants for such positions are required to have a law degree or degree in Islamic
law from Qarawiyin University or certified equivalent.42 In practice, holders of an Islamic law degree
are in the minority among accepted applicants. The Ministry of Justice announces a public
examination for law school graduates under the age of 30 years and 40 years for judiciary clerks with
five years of experience.43 Candidates are selected and appointed based on their performance in
entry-level positions in the judiciary.

Judiciary trainees must undergo a two-year training program concluded by an examination.44 At

the end of the training period, trainees are given four oral and five written examinations.45
Consequently, trainees are ranked and assigned to positions by the Supreme Judicial Council where
they will ultimately be appointed by Royal Decree.46

36 Ibid. art. 1.
37 Ibid. art. 51.
38 Ibid. art 51.
39 Ibid. art. 38.
40 See Decree 23/12/1975, art. 3
41 Ibid.
42 See Official Ordinance dated 11/11/1974, Sect. 5.
43 See <http://www.justice.gov.ma/ar/recrutement/magistrat.asp?v=1>.
44 See Nasser Amin, The State of the Judiciary in the Arab Region (2001) p.37.
45 See <http://www.justice.gov.ma/ar/recrutement/magistrat.asp?v=1>.
46Article 84 of the constitution state that “upon recommendations made by the Supreme Council of the Judiciary, judges
shall be appointed by royal decrees”
 12

Investigation judges are appointed among judges on the bench for a renewable 3 years by
ministerial decree from the Minister of Justice. They can be released from their duties within that
period by the Minister of Justice in his/her discretion.47

The National Institute of Judicial Studies, established by Decree No 2-69-587 January 29, 1970,
carries out the training for the accepted applicants. Recently, the law has been amended granting the
Institute a status independent of the Ministry of Justice. It is now called the High Judicial Institute.
The training program lasts for two years and it includes theoretical and practical components. The
theoretical component lasts for 5 months while the practical component lasts for 15 months. 48The
theoretical component consists of lectures in law, legal research, and human rights while the practical
component includes training in appellate courts and courts of first instance for fifteen months under
judges’ supervision. Finally, 4 months of training is carried out in penal institutions, with public or
private contractors, and banks. The final results determines where each candidate will be assigned
and to which judicial office (courts/prosecution office). Prosecutors are appointed among judicial
trainees upon compilation of the institute studies and the recommendation of the institute and
Ministry of justice needs.

As is common in the region, discipline is overseen by the Ministry of Justice and the Supreme
Judicial Council, though the role of the former is more extensive than in most Arab states. The
Minister of Justice notifies the Supreme Judicial Council with the acts that a prosecutor has been
accused of, and after consulting the permanent members of the Council, appoints a prosecutor with
higher rank than the accused. If a decision is made to the effect of removing a prosecutor, the
Minister of Justice removes this judge from office. These decisions will take affect in the form of a
Royal Decree and are not subject to appeal. Prosecutors can be suspended from their posts
immediately by a decree issued by the Minister of Justice if they are criminally prosecuted or commit
a gross error. Similarly, judges who have been criminally prosecuted or committed a gross error may
be suspended from work by decree from the Minister of Justice. The decree may decide that the
suspension is without salary.”49

International Cooperation in Criminal Matters

Morocco has enacted law No. 3 for 2003 against terror acts and terror financing. The
government drafted the law citing the need to bring Morocco into international standards, to fill
loopholes in preexisting legislation, and to allow authorities to move against the financing of terrorist
groups. It also constructed a special unit in the Ministry of Justice for International Cooperation in
this regard.

While the terrorism law had been drafted before the Casablanca terrorist attacks in May 2003,
the parliament responded quickly to public concern by passing the draft by an overwhelming
majority shortly after the bombings. The law has provoked some controversy (for instance,
following the arrest of a journalist for publishing a claim of responsibility for the Casablanca
bombings).

Morocco has responded to international calls for increasing human rights protections by
amending its criminal law; it has also begun drafting a law against torture to fill some of the gaps in
the existing legal framework. The United Nations Committee Against Torture and international

47 See Criminal Procedure law, art. 52.

48 See Amin, p. 37.
49 See The Basic Law of the Judiciary No 1.74.467, arts. 54, 59, 62
 13

human rights organizations have lauded these moves but noted that further actions are needed; they
have also called for greater attention for documenting and implementing compliance with the law.50

Morocco will extradite non-nationals, but Moroccan citizens are charged and tried in Moroccan
courts.

EGYPT

POLICE

Historical development

While Egypt has a long history of policing, Egypt’s police force today can be dated back to the
British occupation of 1882. The British established a national police force in 1883 largely in the hope
of reducing the costs of occupying Egypt. It was staffed and trained by British officers at a police
school established in 1894. British efforts to create a local force nonetheless responsive to British
control were never really successful and so resulted in decades of reform. The resulting force was
formally turned over to the Egyptian government in 1922, but the British presence continued. The
force was paramilitary in formation, well-organized, well-armed, and designed above all to serve the
regime.51 The degree of British influence over internal aspects of Egyptian governance declined after
the conclusion of the Anglo-Egyptian treaty of 1936; though the history of British intervention did
not end until 1956, its direct control over structures like the police gradually diminished.

After the 1952 revolution, the new government instituted a series of police reforms, placing all
police functions in the Interior Ministry and introducing new standards and training.52 The new
regime also established a pervasive internal security apparatus. Officers were now sent to the Soviet
Union to train. In the 1970s, the police were again reorganized and placed it under four deputy
ministers of interior (for public security, special police, personnel and administrative affairs).
Changes were also introduced in the police officer training program, and a new police academy was
established in Cairo in 1975 to provide training for most commissioned officers. In 1977, the Central
Security Forces, a paramilitary force responsible for guarding public buildings and sometimes for
crowd control, was formed in order to free the military from domestic policing. Under then
President Anwar al-Sadat, the role of the military intelligence organization in the Defense Ministry
was reduced and more security functions were taken over by units in the Interior Ministry.

Egypt has been in a state of emergency with only for three-quarters of a century with only short
interruptions, giving police broad powers. The Emergency Laws are supplemented by a penal code
that also grants the state broad detention powers (e.g., police may detain suspects for up to six
months pending investigation). The Penal code also contains special provision for combating
terrorism, which it defines quite broadly.53

50See the conclusions and recommendations of the UN Committee against Torture, 5 February 2004,
http://www.unhchr.ch/tbs/doc.nsf/385c2add1632f4a8c12565a9004dc311/35b5adec21c0a623c1256e680033c4fb?OpenDo
cument&Highlight=0,Morocco
51Harold Tollefson, Policing Islam: the British Occupation of Egypt and the Anglo-Egyptian Struggle over Control of the Police, 1882-1914

(Westport: Greenwood, 1999).

52George Kurian, World Encyclopedia of Police Forces and Penal Systems (New York: Facts on File, 1989), p. 102.
53United Stated Department of State, Egypt Country Reports, 2003.
 14

Current issues

Egypt increased its police numbers in the 1990s to deal with radical Islamist opposition. During
the period of the confrontation with Islamists, the government was reported to have arrested as
20,000 dissidents.54 By the end of the 1990s the Islamist opposition had largely been defeated,
though there is no evidence that the police force has decreased in size.

Today the regular police are housed in the Interior Ministry and are supplemented by single
mission agencies such as the Tourist and Antiquities Police and an anti-narcotics unit. In addition to
the regular police, there are various security forces. General Intelligence reports directly to the
president. The General Directorate for State Security Investigations, the primary agency for
domestic policing on security matters, is in the Interior ministry. Little is known about its internal
workings: even the number of employees is a state secret.55 There is also the paramilitary Central
Security Force that handles terrorism, demonstrations and guarding public buildings and strategic
sites. This force, however, is recruited from poorly-educated rural conscripts, many of whom had
failed to qualify for the army. Housed in poor conditions and generally neglected, this force rioted in
1986 on a rumor that their service would be extended from three years to four. The CSF had to be
contained by the armed forces. Afterwards more than 20,000 (of the then estimated 300,000)
members were fired.56 The Defense ministry also has its own military intelligence unit.

Human rights NGOs charge that the police, and particularly the security forces, engage in
systematic abuse of detainees. The government responds that while individual cases of abuse may
occur, there is no systematic policy and abuses are investigated. Even before the rise of the radical
Islamist opposition in the 1990s, Egypt’s security service was still charged by one NGO leader “a
habitual and unrestrained violator of human rights.”57 That reputation worsened through the 1990s.
While government officials felt such view unfairly singled out Egypt, the existence of repeated
instances of police misconduct suggests that a problem exists. According to human rights groups
such as Human Rights Watch and Amnesty International, not only political but ordinary detainees
are frequently tortured or mistreated, some to the point of death, to extract confessions, or deter
others. While security forces are most often charged as the primary perpetrators of abuse, the regular
police also accused of engaging in torture and abuse of detainees.

While Egyptian government sources view the NGOs as excessive in their language, concerns
about torture are not restricted to human rights NGOs; they have been voiced by the United Nations
Committee against Torture.58 Egypt has replied by citing very strong legal basis prohibiting and
punishing torture.59 And indeed, the problem is not primarily a lack of legal protections: Article 42
of Egypt’s Constitution prohibits torture. Egypt’s Penal Code prohibits torture. The Penal Code
makes torture a felony.60 And Egypt acceded to the Convention Against Torture in 1986.

In addition, the Egyptian government is able to point to a series of prosecutions of police

officials for torture, though critics charge this represents a small proportion of the number of

54 Helen Metz, Egypt: a Country Study, (Washington: Library of Congress, 1991), Introduction.
55Virginia Sherry, “Security Forces Practices in Egypt,” Criminal Justice Ethics 12:2 (Summer-Fall 1993).
56Helen Metz, ed., Egypt: a Country Study (Washington: Library of Congress, 1990).
57Virginia Sherry, “Security Forces Practices in Egypt,” Criminal Justice Ethics 12:2 (Summer-Fall 1993).
58 http://www.hri.ca/fortherecord2002/documentation/tbodies/ccpr-co-76-egy.htm
59http://www.unhchr.ch/tbs/doc.nsf/385c2add1632f4a8c12565a9004dc311/f2cae3b7c4416edbc1256ca6005a6269/$FILE

/G0344824.doc
60United States Department of State, Egypt, Country Reports on Human Rights Practices, 2003.
 15

incidents of torture. The problem deepened in the 1990s, as did the number of police deaths,61 with
the virtual war between the police and the radical Islamist opposition, but that problem has now
abated substantially. However, human rights NGOs charge that police practice has not improved as
the security threat has lessened. Human Rights Watch, which has documented this phenomenon
perhaps most thoroughly, notes that “torture in Egypt is a widespread and persistent phenomenon.
Security forces and the police routinely torture or ill-treat detainees, particularly during
interrogation,” typically to abstract information or a confession.62 Originally used primarily against
political dissidents, it has become, in Human Rights Watch’s words, an “epidemic” potentially
affecting all citizens including children (especially street children). Whether or not such strong
language is justified, this may be an area for particular concern and attention from the authorities.

PROSECUTION

Structure and function

Egypt follows a niyaba system in which the investigation and prosecution powers are judicial
functions practiced by the public prosecutors. Indeed, Egypt pioneered the adoption of the system
in the Arab world. Originally the investigation function was handled separately by a judicial official.
And until today, the criminal procedure law provides for the option of appointing a criminal
investigation judge63 as in Morocco or Lebanon. However, this option has rarely been used.

Members of the niyaba are part of the judiciary corps64 and the niyaba is legally considered part
of the judiciary. The status of prosecutors is identical to that of judges. However, they do retain
some tie to the executive branch. The niyaba is headed by the General Public Prosecutor (who
serves in the Ministry of Justice) and follows the Minister of Justice administratively. In general, most
judges begin their careers as prosecutors, enhancing the judicial nature of the niyaba.

There are several specialized niyabas in Egypt, devoted to specific matters such as state security,
personal status, and financial crimes.

Appointment and training

Applicants for niyaba positions have to be Egyptian nationals, at least 21, holders of a law
degree, and fit and proper persons.65 The General Public Prosecutor announces the vacancies for
public prosecutors positions. Applications are reviewed through the disciplinary committee in the
office of General Public Prosecutor. Thereafter, a judge (usually the Attorney General) interviews
each candidate. Finally, candidates have to pass a final interview with the Supreme Judicial Council.
Prosecutors are selected by the Supreme Judicial Council and then appointed by Presidential Decree.
Selected candidates are thereafter admitted for training to the National Center for Judicial Studies.

61Maye Kassem, Egyptian Politics: the Dynamics of Authoritarian Rule (Boulder: Lynne Rienner: 2004), p. 41
62Human Rights Watch, “Egypt’s Torture Epidemic, a Human Rights A Watch Briefing Paper,” February 2004.
63 See Criminal Procedure Law as amended by law 121 for 1956, arts. 64-67.
64 See Law No. 35 for 1984
65 See Judicial Authority Law No. 46 for 1972.
 16

The National Center for Judicial Studies (NCJS) was founded on 24 June 1981, in accordance
with Presidential Decree 347 of 198166. Based on Article 2 of the decree, the purposes of the NCJS
are as follows: training members of judicial organizations and giving them the qualifications necessary
to carry out their duties, refining the skills of those who work in coordination with judicial
organizations, collecting, publishing, and maintaining the documents, research and legislation which
would assist in the administration of justice.

The NCJS is administered by a board chaired by the Minister of Justice. The remainder of the
board is composed of the president of the Court of Cassation, the president of the State Council, the
Prosecutor General, the Head of the State Cases Agency, the Administrative Prosecutor General, the
NCJS Director, and four members chosen by the Minster of Justice for a renewable one-year term.
The director of the NCJS is chosen by the Minister of Justice after consulting the Supreme Council
for Judicial organizations.67 Training is carried out by members of the judiciary, university professors,
visiting foreign judges, and professors. The period of study is set at 12 months although the board
of governors has the power to decrease or increase that period. In the last decade, the period of
training has been decreased ranging from 4 to 6 months for theoretical training.

The theoretical component is tailored solely for public prosecutors unlike other judicial institutes
that provide training for both prosecutors and judges. Hence, the study program focuses on criminal
law, criminal procedure, structure of public prosecution, applied criminal investigation, evidence,
jurisprudence in criminal law, logic and methods of scientific inquiry, dictates of Islamic law
concerning crime, establishment of guilt, punishments, juvenile justice, personal status issues (that is
related to the specialized public prosecution office for family law), forensic medicine, material
evidence analysis, psychology and mental illness, criminology, penology and prisons, values and
traditions of the judiciary, criminal investigation, morals, legal arguments, and Arabic, English,
French languages and legal terminology.

Each week, trainees attend seminars presented by public figures in different disciplines. In
addition, the trainee undergoes a series of on-site visits to prisons, forensic laborites, and the
departments’ investigation forgery cases.

Trainees are evaluated through oral examination by different committees: the Criminology
Committee, the Associate Criminology Committee, the Forensic Medicine Committee and Material
evidence committee, Islamic criminology, Jurisprudence and personal status committee, the judiciary
values and ethics, and French language exam.

Having passed these exams, trainees attend a program of vocational training that takes the form
of seminars each focusing on relevant court cases. Trainees study actual cases under the supervision
of judges and prosecutors. Cases are evaluated for various shortcomings including investigation
techniques, in court actions, or legal error. Each seminar is evaluated separately and trainees receive
final grades based on their performance in the two components.

There has been a long awaited project for a national judicial institute that requires two years of
mandatory studies for individuals seeking to join the judiciary. A proposal to this effect has been
submitted to Parliament for approval.

66 Based on article 2 of the decree, purposes of the NCJS are as follows: training members of judicial organizations and
giving them the qualifications necessary to carry out their duties, refining the skills of those who work in coordination with
judicial organizations, collecting, publishing, and maintaining the documents, research, and legislation, which would assist in
the administration of justice. See Amin, p. 34.
67 See art. 4 of Minister of Justice’s Decree 2782, issued on August 16, 1981
 17

Prosecutors are removed from office through a mechanism similar to that use for judges. The
Ministry of Justice supervises judicial inspection and discipline. The inspection and disciplinary
committee consists of judicial personnel seconded to the Ministry of Justice for that purpose. Their
recommendations are submitted to the Supreme Judicial Council. A panel of the Court of Cassation
hears appeals from the decisions of the committee.

International Cooperation in Criminal Matters

The Public Prosecutor has a special office for international cooperation. Legislation includes
special provisions against terror acts in the Criminal Procedure Law. Also, Egypt passed law no.
80/2002 for combating money laundering. This law obligates financial institutions to report any
suspicious transactions. The legislation grants access to the identity of clients and their relevant
documents. The law recommended an independent entity for money laundering which would receive
reports on suspicious processes, so as to take the necessary measures against them in due course. A
special unit has been established headed by a judge for combating money laundering.

J O R DA N

POLICE

Historical development

Jordan’s police force has its origins in the Arab Legion, which the British created in 1921, initially
as a paramilitary force tasked primarily with internal order and protecting the regime.68 This force
was financed, equipped and trained by the British until 1956 when it was placed under Jordanian
leadership and divided into separate police and military forces. From 1957-1958 the police were
placed under army control during a 20-month period of martial law. Since then, however, the police
force has been independent. In 1959 a criminal code was adopted based (via the Syrian and
Lebanese codes) on the French model

The regular police is the Public Security Force in the Public Security Directorate of the Interior
Ministry. Geographically it is divided into urban, rural and desert contingents. Administratively, it is
divided into administrative police (security and crime prevention), judicial police (who conduct
criminal investigations) and support police. Historically, the head of the police has usually been an
army general.

Most training is at the Royal Police Academy in Amman and the Police Training School at Zarqa
(which also trains many police from Arab states). In 1970 Jordan became the first Arab country to
admit women to the police and in 1972 it opened a women’s police academy in Amman.

Security is handled primarily by a Special Police Force within the Public Security Directorate, the
General Intelligence Directorate GID which (according to its website) was established in 1964, and
answers directly to the king and the military.

Current Issues

Human rights groups report allegations of torture, primarily by security officials, who operate
largely with impunity. In 2003, the Public Security Directorate opened a human rights complaints
offices in its regional directorates where people can lodge complaints of police misconduct.

68See P.J. Vatikiotis, Politics and the Military in Jordan: a Study of the Arab Legion, 1921-1957 (London: F. Cass, 1967).
 18

PROSECUTION

Structure and Function

Jordan has adopted a niyaba system similar to Egypt where public prosecutors possess
investigatory and prosecutorial powers. Public prosecutors are selected among judges. Nonetheless
they follow the Minister of Justice administratively.69 Article 97 of the Constitution asserts that this
administrative supervision is not related to their judicial function as it is emphasized that judges are
independent and follow no one but the law70. The same rule exists in Article 3 of the Judicial
Independence Law No.15 for 2001. The Public Prosecution office is represented in the Judicial
Council by the Chief Public Prosecutor for the Supreme Court.71

Public prosecutors adhere to the guidance of their superiors or the Minister of Justice.72 The
head of the system is the Chief Prosecutor in the Supreme Court.73 The General Chief Prosecutor in
every appellate court presides over public prosecutors in these courts.74 Every court of first instance
has a judge who is also a public prosecutor.75 All public prosecutors at the appellate level and courts
of first instance are under the supervision of the Attorney General in the appellate courts.76 They
have to follow his instructions and the instructions of the Minister of Justice. In addition, all of them
are under the authority of the Chief Public Prosecutor in the Supreme Court and the Minister of
Justice.

The law provides for non-judges to perform prosecutorial functions. The Public Prosecutor may
request a police officer to be seconded to his office to perform the duties of the public prosecutor in
courts of first instance and courts of summary judgments.77 In addition, the Minister of Justice may
assign a civil servant(s) to participate with the Public Prosecutor in investigating a case, which the
Minister deems important, dangerous or requires a speedy remedy.78It is also permissible for the
Chief Justice of a given court to assign the chief clerk of that court to perform the duties of the
public prosecutor temporarily.79

As with Egypt, several specialized niyabas exist for matters ranging from state security to
customs. Unlike Egypt (where the specialized niyabas serve under the Prosecutor General in the
Ministry of Justice), members of the specialized niyaba in Jordan are appointed by the cognizant
executive branch official.

69 See Criminal Procedure law No. 9 for 1961 as amended by law 16 for 2001, art. 11, a
70 See CONST. art. 97. See also the Judicial Independence Law No 15 for 2001, art. 3.
71 See Judicial Independence Law, art. 4.
72 Ibid. art 11,b.
73 Ibid. art 12..
74 Id art 13.
75 Id art 14.
76 See Courts Structure Law No. 17 for 2001 as amended by law No 68 for 2002, art. 17.
77 See Criminal Procedure Law, art. 15.a
78 See Courts Structure Law No. 17 for 2001 as amended by law No 68 for 2002, art. 13, a.
79 Ibid. art 13,b
 19

Appointment and Training

Prosecutors are considered to be judges selected to perform prosecution duties. As such the
same requirements for judges apply to prosecutors, except in cases where police officers and Chief
Clerks are appointed. Successful candidates must be Jordanian, at least 27 years of age, in good
health, never have been convicted of a non-political crime, and never been convicted of a
dishonoring act. In addition, they must posses a good reputation, hold a law degree, and have a
specified amount of further education and training.80

The Jordanian Judicial Institute is established by regulation No. 67 for 2001. It is established
under the auspices of the Ministry of Justice for the purpose of preparing candidates for judicial
vacancies and to provide continuous training for existing judges.81

The Institute is supervised by a committee headed by the Minister of Justice, the membership of
Chief Justice of the Supreme Justice Court as deputy, the Chief Public Prosecutor for the Supreme
Court, Ministry of Justice executive director, two judges appointed by the Minster of Justice for a
renewable two years after consulting the Judicial Council’s Chief, the head of the Bar Association,
two law professors appointed by the Minster of Justice for a renewable two years and the Director of
the Institute82, who has to be a judge.83

The training program lasts for two years.84 Failure in the first year disqualifies the candidates
from the Institute.85 The institute also carries out continues training programs for existing judges.
The students are required to submit a legal dissertation and have to submit a paper of a minimum of
60 pages to the Institute.86 The student has to defend the paper in a public session in order to pass
the exam.87

‘Judges remain on probation for 3 years upon appointment. The Judicial Council may terminate
his service at any time within this period for poor performance. Upon the expiration of the 3 year
period and in the event that he is not permanently appointed, his service is terminated.’88

International Cooperation in Criminal Matters

Jordan passed law against terrorism and joins the international protocol against terror financing.
The ratification of the protocol was submitted to the Parliament to be ratified and incorporated in
the internal national legal system as Law No. 83 for 2003.

80 Ibid. art 10.

81 See Regulations No 68 for 2001, art. 3
82 Ibid. art. 4
83 Ibid. art. 7
84 Ibid. art. 13
85 Id art. 15
86 See the Judicial Training Institute Regulation No.1 for 22/8/2002, art. 5.
87 Ibid. art. 7.
88 Id art 12.
 20

L E BA N O N

POLICE

Historical development

Modern policing in Lebanon begins with the French mandate. French colonial policing was
highly militarized and organized under the Troupes Speciales du Levant. Consisting initially of
Lebanese and Syrian personnel under French officers, Arab officers gradually took over top
positions. In 1943 the Lebanese units were turned over to Lebanon and became the base of the
Lebanese army. While the army played a role in domestic security, the government deliberately kept
the force small. Policing was carried out primarily by urban police and, on the French model, a
gendarmerie.

By the early 1970s, policing had begun to break down in Lebanon as the country fell into civil
war. With war (1975-1990), the authority of the government weakened. Internal security was
increasingly provided, if at all, by local communities, political parties that had evolved into militias,
and the armies of Israel, Syria and the PLO. This was particularly the case after the 1982 Israeli
invasion. Militias now held police power in separate areas: in Beirut for example, the Christian
Lebanese Forces controlled East Beirut, the Shi`i Amal, the Druze Progressive Socialist Party and
others controlled parts of West Beirut.89

With the end of civil war, the government resumed policing with the dissolution of the militias in
1991 in accordance with the Ta'if Agreement of 1989 which ended the war. Most militias were now
disarmed, their leaders now taking important government posts. Major exceptions were Hizballah
which retained a military force of several thousand, the South Lebanese Army and, to a lesser degree,
Amal. Palestinian militias, especially those in the south, were also not disarmed. Lebanon’s system
today was reconstituted in the postwar period after 1990. Following the Israeli pullout in 2000, the
Lebanese government deployed soldiers and police to the area formerly dominated by Israeli troops,

Today the basic police force is the Internal Security Forces in the Interior ministry. It comprises
the Beirut police, a gendarmerie handling areas outside of Beirut, the Judicial Police and specialized
units (e.g., for embassy security). The Institute of the ISF houses most training facilities.

Current issues

Lebanon’s Internal Security Forces, the State Security Apparatus, and the Surete Generale also
handle national security matters as does the Lebanese armed Forces. In addition to Lebanese forces,
some 15-17,000 Syrian forces, military and paramilitary, remain in the country and police substantial
areas. Palestinian groups also police some areas in their control. Both work with little oversight and
both have been accused of serious human rights violations.

Although Lebanon has laws to prevent confessions extracted via torture from being used in
court, the Constitution does not specifically prohibit torture. Arbitrary detentions are common and
torture occurs.

89Farid el-Khazen, “Political Parties in Postwar Lebanon,” The Middle East Journal: 57:14 (Autumn 2003).
 21

PROSECUTION

Structure and Function

Prosecutors are considered part of the judicial corps. The Lebanese constitution asserts that the
judiciary is independent in the exercise of their duties.90

The prosecution system is called the niyaba. However, unlike many Arab counterparts, it does not
combine investigation and prosecution. The investigation and the prosecutorial functions are
separated in Lebanon (similar to the situation in Morocco).

Decree Law No. 7855 of 1961, which is known as the Judicial Organization Law, governs the
structure and function of the judiciary. The Supreme Judicial Council, headed by the first President
or Chief Justice of the Court of Cassation is in charge of judicial appointments, transfers, training,
and disciplinary actions.

The General Public Prosecutor’s Office has been established at the helm of the prosecutorial
system. Powers of the Minister of Justice have been limited to requesting investigations and
prosecutions. However, the General Public Prosecutor retains the right to refuse the Minister’s
request if he has justified reasons.91 The public prosecutors are under the authority and supervision
of the General Public Prosecutor and the Minister of Justice. They abide by the instructions they are
given except in court where they retain their professional freedom to express their own minds.92

The Minister of Justice however, retains influence in the process through the appointment of the
General Public Prosecutor which occurs through his (the Minister’s) recommendation away from
Supreme Judicial Council opinion.

Appointment and Training

Graduates of Lebanese colleges of law have to pass the selection process held each year for being
appointed as an apprentice judge for three years at the Institute for Judicial Studies. This process
involves a personal interview with a member of the Supreme Council of the Judiciary and a battery of
written examinations in civil, commercial, criminal law and general culture, the latter given in a
foreign language. An applicant must have held Lebanese nationality for at least ten years, enjoy full
civil rights, have no felony convictions and good physical health, hold a law degree, be fluent in
Arabic and either English or French, and be less than 35 years of age.93

The appointment process for public prosecutors follows a similar process to that of the judiciary.
The Minister of Justice, after consulting with the Supreme Judicial Council, requests that the
Council94 organizes a competition for the applications.95 The Supreme Judicial Council determines

90 See Lebanese CONST. art. 20.

91 See Criminal Procedure Law, art. 14.
92 Ibid. art. 45.
93 Ibid. art. 61.
94 The Supreme Judicial Council is made up entirely of judges.
95 See Decree No. 150 of September 1983, art. 59.
 22

the subjects to be examined, the grades required for entry, and the examining committee which will
examine the applicants.96

The exam is both oral and written. The Council considers the applications for minimum criteria
and determines who is eligible for the admissions competition.97 The applicant must pass an
interview before a committee consisting of the Head of the Judicial Training Institute, the Director
of the Institute and a member of the Supreme Judicial Council. Thereafter, the applicant has to stand
for another interview by the Council. If the candidate passes the interviews, s/he would be allowed
to sit for a written examination. Once the applicant passes the written examination, s/he will have to
pass a final oral examination. The examination committee then announces the results of the
examination.98

Due to Lebanon’s own political structure and the delicate balance in representing different sects
and groups in the society, the appointments are allocated according to religious community, and
pursuant to the requests of the President of the Republic, the Prime Minister, and the President of
the Chamber of Deputies. Finally, a decree is issued based on the recommendations of the Minister
of Justice after having received the consent of the Supreme Judicial Council.99 The selected
candidates then enter the Judicial Institute to study for 3 years.100

The Institute for Judicial Studies101 was founded in 1961 by the Judicial Organization Law
10/16/1961. It commenced its work in 1962, until it closed when the civil war erupted. It was
reopened again in 1994 after modifying and modernizing its structure. The training program of 3
years compromises a six-month academic study followed by an examination and two and half years
of practical training.

The practical training period is subdivided for a period of 3 and 4 months, in which the trainees
are seconded to different courts and prosecution departments. While working in these departments
candidates study a legal topic related to the work of the department and submit a paper thereon. A
panel of 3 members evaluates the papers (director of the institute, director of the respective
department, and director of the academic study division in the institute). In addition, the director of
each department will write a report evaluating the work of each student. By the end of the three
years, the institute will give full evolution to each student based and will recommend to the Council
to appoint the student or not, and in which department the candidate should serve. Continuing
training is still not included in the institute activity.102

By the end of the three-year period, an evaluation is conducted based on examination results and
performance during the period of academic and practical training. A full report is submitted to the
Council recommending the student’s ability to hold a judicial post as well as a specific branch for
work. The Council makes the final determination for appointment and posting.

There are two bodies of law governing the removal of prosecutors. The Lebanese laws of
criminal procedure 389-398 have specific penalties for prosecutors. In addition, decree no 150 the

96 Ibid. art 60.

97 Ibid. art 62.
98 id art. 63.
99 id art. 64.
100 Ibid.
101 See http://www.justice.gov.lb/Wizara/3.pdf
102 See http://www.justice.gov.lb/html/index.html
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laws of the courts of justice clauses 83 to 90 govern disciplinary actions. As a general rule, judges
once appointed maintain their positions until retirement.

International Cooperation in Criminal Matters

According to article 35 of the penal law, the minister of justice refers to the Chief Public
prosecutor requests for extraditions to be examined and evaluated. The Public prosecutor submits a
report to the Minister with his opinion. The minister of justice acts takes final action.

International cooperation is handled through the ministry of justice. The requests for assistance
are received by the ministry of foreign affairs, then passes to the ministry of justice which is finally
referred to the chief public prosecutor to be executed.

P RO B L E M S A N D R E C OM M E N DA T I O N S

The police in the Middle East today are professionals in their training, in adoption of current
technology, and in appearance, but their orientation toward national-security concerns has affected
their performance in two ways.

First, in security matters, the concentration on regime maintenance and stability has earned
existing forces reputations for partisan, heavy-handed and unpopular forms of policing. Each of the
states discussed here has, with varying degrees, serious problems, with police abuse and torture,
especially in the security services. These problems have increased in recent years as governments
have engaged radical and often violent Islamist opposition. International pressure to combat
terrorism has only aggravated the problem. As mentioned in this report, the existence of instances of
abuse is not questioned; what remains at issue is the extent to which such instances form part of a
broader pattern. But fundamentally the central problem is probably not an absence of executive
control (i.e., rogue units) but rather an abundance of such control: the use of police for political ends.
Police are subordinate to the executive; they are not sufficiently subordinate to the rule of law. The
problem in this regard is to bring existing legal protections into effect.

But second, there are also implications for day-to-day criminal law enforcement (preventing and
investigating crime, apprehending criminals). There is no doubt that existing governments have
worked hard to develop the training and professionalism of existing police forces. Yet existing
practice suggests that—perhaps because of the concentration on security matters—more work needs
to be done. In most of the countries studied, incidents of abuse are connected not simply with
security cases but with regular policing, suggesting that the police do not have sufficient training or
resources for regular work. Many countries in the region have firm legal guarantees against accepting
testimony obtained under duress, and prosecutors often are sufficiently aware of the possibility of
improper techniques that they will discount confessions. The result may be to weaken criminal law
enforcement rather than strengthen it.

To address these problems, several measures can be taken.

First, and perhaps more important, governments should encourage open discussion of the
problem of police abuse and admit to any past excesses. Their reluctance to do so may seem
understandable in that it exposes them to harsh domestic and international criticisms. Yet there are
ways of opening discussion that would enhance rather than undermine their reputations for fairness.
They could appoint independent commissions, including both legal and medical staff, to investigate
allegations of torture and abuse. Doing so would address not only the incidents investigated but by
remove any culture of impunity allow others who fear retribution on reporting incidents to come
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forward. These commissions could be given a sufficiently long tenure and sufficient resource to
allow them to look at the problem in depth without fear of retribution. Instances of police abuse
should be pursued through the legal system and perpetrators punished.

Second, an emphasis on professionalism and training in human rights is important, though it

should be noted that better training absent clear signals from the top will do little. Governments
should also maintain careful records on detainees: where they were detained, when, by which forces,
in which facilities so that abuse allegations when they occur can be investigated. All governments
should require badges or other public identification of officers to facilitate the identification of those
engaged in abuse.

Third, existing legal frameworks should be examined. In general, legal and constitutional
guarantees exist and are admirable in their general language. But in many cases criminal codes are
vague or incomplete in their definition of torture (or terrorism). All should be brought to the
standard set by the definition in Article 1 of the Convention against Torture.

Fourth, governments and human rights organizations should work out less adversarial
relationships. Of course, some tension in the relationship is natural and even healthy. But for their
part, human rights organizations should ensure that their work is politically neutral and avoid moving
from examination of human rights issues to general critiques of the political system. Many
organizations already strive to meet such standards and governments should recognize that such
work can help improve the performance of official bodies. Governments should allow international
and local human rights groups to operate without harassment, police or bureaucratic.

The war on terrorism presents its own dilemmas. Since this war is pursued most major donor
states (especially the United States), such states must be very careful about the signals they convey.
Extraditions, for instance, can communicate the message—demeaning both to the receiving
government and to its population—that a Western country wishes to outsource interrogation.

Finally, great attention might be devoted to the interface between the police and the niyaba. In
all the countries covered, the niyaba (or elements of the judiciary) are responsible for investigation
beyond the initial phase; thus it falls to judicial or quasi-judicial bodies to oversee the collection of
evidence, assess it, and decide whether to pursue a case. Members of the niyaba frequently have a
role in supervising police work; they also often have ancillary responsibilities including inspection of
prisons. While the niyaba is not always totally independent of the executive, it is rarely accused of
involvement in abuse. Morocco has recently taken the commendable step of amending its criminal
law to free courts from the obligation to accept all evidence presented by the police, bringing it into
line with the other countries considered in this report. Such reforms might be extended by insuring
that the niyaba is able not simply to form independent evaluations (as is now the case in all countries)
but is also encouraged (and not merely allowed) to act in cases of official abuse. Again, absent a clear
signal from the political leadership, such systematic action is unlikely (though isolated investigations
and prosecutions have occurred).

With regard to the niyaba itself, the major issue under discussion in the region is the degree of
the institution’s independence. Here, the debate is fairly complex. On the one hand, reformers often
wish to further insulate the niyaba from the executive, insisting on its full judicial status. On the
other hand, many advocates of reform view the separation of investigation and prosecution functions
as essential to the rule of law. To allow the same institution to investigate a crime and then prosecute
it removes a layer of review from the process, and puts prosecution in the hands of a party that has
already decided on the guilt of the accused.
 25

Yet in instances in which investigation and prosecution are separated, it becomes difficult to
argue that there is no legitimate executive role in prosecution. Investigation is often a judicial
function in civil law systems, and in Arab countries that separate investigation and prosecution, the
judicial nature of investigation is enhanced. But in those same countries, prosecution is often less
independent and more clearly linked to the executive branch.

Accordingly, it is difficult to reform in both directions at once—to insist on greater

independence while simultaneously working to separate investigation and prosecution. For this
reason, it may make less sense to emphasize such issues of abstract principle and more on practical
details involving the niyaba. In this regard, what is most important is that:

• The relationship between executive branch officials and the niyaba be very clearly
specified;

• Personnel issues remain outside the purview of the executive branch;

• All communications between executive branch officials and members of niyaba be in

writing; and

• Members of the niyaba be given the autonomy and resources—and not merely the
authority (which they largely already have)—to investigate instances of official abuse.

Two other issues regarding the niyaba also deserve attention.

First, there has been some interest in the region recently in developing alternatives to trials for
some criminal cases. Motivated by the growing trend towards alternative dispute resolution and also
by American systems of case management and plea bargaining, some reformers have suggested
experimenting with new approaches in the Arab world to allow victims and accused to settle
differences outside of the courtroom.

Many members of the legal community in the region are suspicious of such experiments for two
reasons. First, they appear designed for countries in which trials are long, costly, and often delayed.
While court backlogs are indeed endemic in the Arab world, trials are far less costly, and the worst
delays are in civil rather than criminal cases. Greater speed and efficiency are laudable goals but
probably do not need the same level of attention in criminal justice that they do in other legal realms.

But legal practitioners and officials also view such approaches as likely to aggravate differentials
of wealth, social status, and power. Rather than insulating legal proceedings form social inequalities,
plea bargaining—placing victim and accused on a similar basis and allowing them to negotiate—
allows the victim a voice but also risks depriving him or her of the equalizing effect of law.103

For these reasons, such reforms should be approached with great caution—not so much because
they are alien to the regional legal culture (though they are) but instead because they may not interact
well with other elements in the criminal justice system.

A second area for reform potential is international cooperation among the various institutions of
criminal justice. There has been some attention to this matter in recent years (especially in the areas

103 One of the authors of this report (Brown) has examined this issue in Egypt and Kuwait in a paper on “Women and Law

in the Arab World,” http://www.geocities.com/nathanbrown1/WomenLaw.htm.

 26

of terrorism and money laundering as explored in this report). Yet for the most part, most efforts
have focused on laying down the appropriate legal frameworks for international cooperation.
Training and activation of legal mechanisms have only begun and form a potential area for further
development.