Cancel Debtors' Imprisonment

Amid calls by civil and human right organizations, legaland judicial circles in Jordan are deliberating the importance of adhering tothe provisions of ratified international treaties, including the International Covenant on Civil and Political Rights (the"International Covenant"). Article (11) of the International Covenantstates that: "No one shall be imprisoned merely on the ground of inabilityto fulfill a contractual obligation". Noting that the InternationalCovenant is published in the Official Gazette in issue no. (4764) on15/06/2006. However, it has not been passed through the constitutional phasesbecause it changes Jordanians' legal statuses, according to researchers in theJordanian Constitutional Law's[1]pointof view, even though adhering to international treaties includes passing thetreaty along the required constitutional phases. 

In regard to debtors'imprisonment, Article (11) of the International Covenant strictly states thatimprisonment is impermissible regarding "contractual" obligations andthat this specification is clear and it is not applicable to Article (22) ofthe Execution Law, as Article (22) of the said law includes all cases whereexecution is possible, including contractual and non-contractual obligations,and as Article (11) of the International Covenant certainly does not includethe execution of compensation provisions airing out of tort, such as criminalcases. Further, it does not apply to executive instruments, which areunconditional orders to pay to others, since compensations arising out of tortare not a contractual obligation and unconditional executive instruments arenot contracts since they involve a unilateral will to pay. 

Furthermore, provisions underthe scope of Article (11) of the International Covenant are provisions issuedin cases where the subject is executing a contractual obligation, in accordancewith the aforementioned article. 

In conformity with theabovementioned, whether to apply the distinction standard or not is the routeto activate Article (11) of the International Covenant in a manner that doesnot contradict with the interests of the Jordanian people, especially sinceapplying the article in a broad manner –as civil and human right organizationsare calling for- will affect a significant number of the Jordanian people andwill cause the loss of many people's right of whom the Execution law was theirsole guarantee in their business and financial transactions. Cancelling theimprisonment of debtors without having a credit alternative or some form of securitywill cause a disaster in many sectors.       

Cancelling the imprisonment ofdebtors should not be applied now, but rather in a few years, in order for itto not include filed cases and/or debts that arose at least three years ago, sothat the Government can guarantee the receding of the negative effect of thechange in relation to vital sectors of the economy, such as: loan companies,banks, merchants and other related sectors.  

The alternative is a creditclassification system: 

In all countries that haveadvanced economical programs, economical legislators work on many aspects,including, their strong faith in the fact that the purchasing power of peopleis the main criteria to evaluate markets and running out of dealing capacity inregard to purchasing power will contribute to the shortening of the creditcycle, which will in return negatively affect the wide and narrow localeconomy. Additionally, the imprisonment of debtors is stopping individuals fromcredit circulation and turning them into a burden on the Government. Therefore,specialists developed credit classification systems for individuals to lowerthe chances of loaning those with low credit scores and those who will mostlikely not be able to pay the loan back on time and in full. The aforementionedsystems depend on many factors, including: the total income of disclosedbusinesses and fixed assets of individuals and bank account indicators. It iscrucial to build a database in Jordan that is available for viewing bycreditors, whether individuals or companies and to amend legislations byobliging creditors to conduct background checks on debtors through creditclassification systems prior to the transaction to reduce the effect of paymentorders if circulated without taking into consideration the results of thecredit classification, the said should coincide with cancelling theimprisonment of debtors.   

Applying the abovementioned will encourage individuals tobecome more productive in order for them to improve their credit scores andestablish good creditworthiness, because an individual with a bad credit score will find it difficult to get approved for a loan, orat least will be offered credit only at a very high rate of interest.   

In conclusion, solutions in societies should not come inthe form of a backlash, but in the form of actuarial planning and making plansand executing them on the long run. Additionally, canceling the imprisonment ofdebtors without taking into consideration the general effect of theconsequences and without taking any steps towards the development of theJordanian society is merely an ill-advised decision that will have no positiveeffect on the Jordanian economy.   

By : Advocate Tariq Alqudah Managing Partner at ''MJL''

Advocate : Zain Shahin "QLF"

 

 

[1] Doctor Laith Kamal Nasrawin(article) Alrai Newspaper https://bit.ly/2xB4PHu