The Public Right and the Private Right Under Jordanian Law: The Difference and the Effect of a Waiver
When an offense is committed in Jordan, it gives rise not to one action but to two actions that proceed within a single file: a public action that represents society and is owned by the Public Prosecution, and a private action owned by the injured party, in which they claim compensation. The distinction between them derives from Jordanian Penal Code No. 16 of 1960 and its amendments and from the Criminal Procedure Law, and it is the most consequential practical distinction in criminal cases, because confusing the two leads to a financial and legal decision that cannot be undone. Every year, settlement sums are paid in the belief that a waiver ends the case, and then a sentence is handed down regardless. Because the precise answer differs according to the characterization of the offense itself, presenting the file to a specialist criminal lawyer comes before any waiver or agreement.
1. What Is the Public Right and What Is the Private Right
The public right (the State's right to prosecute) is society's right to punish the offender. The law does not view the offense only as an attack on a particular person, but as a breach of public order, and so the Public Prosecution brings and pursues the action in its capacity as the representative of society, not as an agent of the injured party. The outcome of this right is the penalty: imprisonment, labor or a criminal fine.
The private right (the victim's personal claim) is the injured party's right to compensation for the material and moral damage they suffered. The injured party can claim it within the criminal case itself instead of filing a separate civil suit, and so becomes a procedural party to the case, with standing, a lawyer, and the right to review the file and to challenge. The outcome of this right is a sum of money, not a penalty.
The rule on which everything that follows depends: the two rights are owned by two different parties. The injured party owns their private right and may dispose of it as they wish; they do not own the public right, and so cannot waive what is not theirs.
2. Why Waiving the Private Right Does Not End the Criminal Case
This is the question that brings most people to this page, and the basic answer is that, as a general rule, waiving the private right does not drop the public right.
The reason is logical: if the public action is brought in the name of society, the injured party cannot end it, because it is not theirs. The effect of their waiver extends only to what they alone own, namely the claim for compensation. The criminal prosecution continues in the hands of the Public Prosecution, and the file may end in a conviction and a penalty even though the injured party has settled, waived and consented.
This is where the costly mistake happens: a family pays a large sum for a waiver it believes ends the case, loses the money, and the accused still stands trial. Settlement in itself is not a mistake; the mistake lies in believing what it buys.
Practical note: The general rule under Jordanian law is that the public action is not extinguished by waiving the private right, but the legislature has created specific exceptions to this by special provisions relating to certain categories of offenses. Determining whether the incident falls within those categories is a legal characterization the lawyer draws from the papers of the file and the specific charge, not from the common name of the offense, and it is a point settled by reviewing the file or consulting a specialist lawyer before signing any waiver.
3. A Practical Comparison of the Two Rights
| Point of comparison | The public right | The private right |
|---|---|---|
| Holder of the right | Society, represented by the Public Prosecution | The injured party or their heirs |
| What is sought | The criminal penalty | Compensation for material and moral damage |
| Who brings it | The Public Prosecution by virtue of its function | The injured party, through a private claim |
| Can it be waived? | The injured party cannot waive it | Can be waived at any stage |
| Effect of a waiver on it | Does not, in principle, stop it, and may be considered a mitigating circumstance | Ends the financial claim |
| Standard of proof required | Criminal, based on certainty | Civil, where the preponderance of the evidence is sufficient |
| Who enforces the outcome | The Public Prosecution enforces the penalty | The Enforcement Department collects the sum |
The table pins down the concepts, but it does not replace reading the file. The real question in every case is not "what is the difference between the two rights" but "which of the two rights does the other party own in this specific charge", and that question cannot be answered from the name of the offense.
4. Where the Effect Changes with the Type of Offense
Offenses are not all at the same level in their relationship to the injured party's will, and from this angle they can be classified into two general categories:
Offenses in which the public action proceeds automatically. These are the rule and the majority. Once the incident reaches the authorities by any route, prosecution begins without depending on the injured party's position, and neither withdrawing the complaint nor a waiver stops it. This category usually includes offenses the legislature considers to affect public order or to be serious in their effect.
Offenses in which the legislature has made prosecution dependent on the injured party's will. This is a limited category set out by special provisions, in which the injured party's position affects the course of the public action itself, not only the compensation.
The practical danger here is that people identify the category of their offense from its colloquial name, while what counts is the legal article under which the charge was actually brought in the indictment decision, which may differ from what the parties imagine. A single incident may be characterized in more than one way depending on its circumstances and the status of its parties, and everything that follows changes as the characterization changes. Determining the correct characterization of the charge is itself a legal point that merits consultation before entering any settlement negotiation, because it determines whether the waiver has any value at all.
We have devoted separate articles to a number of these offenses explaining their elements and characterization, including the offense of theft under the Jordanian Penal Code, the offense of fraud under the Jordanian Penal Code and the offense of false accusation under Jordanian law. The detailed application of this distinction to offenses against honor and chastity is covered in the article on the public right and the private right in indecent assault cases.
5. What a Waiver Actually Buys
When a waiver does not drop the public action, it still has an effect that should not be underestimated, but an effect different from what people expect.
The first effect is that it ends the financial claim, so no compensation is awarded after the waiver. The second effect, and the more important in practice, is that the injured party's position may be taken into account when the penalty is determined within the limits set by law. The power to determine the penalty between its minimum and maximum is left to the trial judge, and the injured party's position is one of the things that may be relied on in that determination.
But this effect is neither guaranteed nor automatic, and it is not bought with a mere waiver document. The difference between a waiver that produces a mitigating effect and one that changes nothing lies in its timing, the form in which it was drafted, the stage the case had reached when it was made, and how it is presented to the court. These are all matters the lawyer manages, and they are not visible at all to a non-specialist.
6. Does the Judge Waive the Public Right?
This question comes up often, and it contains a confusion worth correcting: the judge has no power to waive the public right, and the Public Prosecution does not dispose of it as an owner would. The public right does not belong to any of the parties to the case such that they could waive it.
What actually happens is something different. The public action may be extinguished for legal reasons the legislature has set, the trial may end in a finding of no liability or an acquittal, and the penalty may be set at its minimum because of circumstances the judge took into account. All of these are legal outcomes with their own reasons and requirements; they are neither a waiver nor a courtesy. The difference between the two is not a matter of words: someone who thinks the matter is left to whim acts wrongly, while someone who knows it is governed by legal reasons builds their position on those reasons.
7. The Injured Party's Private-Right Claim
On the other side, the injured party faces a decision that is no less important: should they bring a private-right claim within the criminal case, or settle for the complaint?
A private-right claim gives them the status of a party, with the resulting ability to review the file, attend the proceedings and challenge the judgments. But in return it places them in the position of someone claiming money, a position that may be used against them in building the defense.
Among the considerations the lawyer weighs before taking this decision: the extent of the damage that can be proven and whether it is better recovered within the criminal case rather than in a later civil suit, whether party status will strengthen the injured party's position or expose it, and the effect of that on the prospects and weight of a settlement. This is an assessment that differs from one file to another and is not built on a general rule.
8. Frequently Asked Questions
Does waiving the private right drop the public right?
The general rule is that it does not. The waiver ends the claim for compensation, and the Public Prosecution continues to pursue the public right. The legislature has created specific exceptions by special provisions for certain categories of offenses, and determining whether the charge falls within them is a legal characterization drawn from the papers of the file.
How long is the prison term for the public right?
There is no "prison term for the public right" as a separate penalty, and this is one of the most common and mistaken notions. The public right is the nature of the action brought by the Prosecution, while the length of the penalty is determined by the specific provision governing the offense charged, its aggravating or mitigating circumstances, and the trial judge's discretionary power.
Does the accused benefit from a settlement in reducing the penalty?
The injured party's position may be taken into account when determining the penalty between its minimum and maximum, but it is not a legal ground for dropping it, and its effect is not guaranteed and depends on the timing of the settlement, its form and the stage the case has reached.
When can the private right be waived?
A waiver is possible at the various stages of the case, but its practical effect differs according to the stage at which it occurs. Timing here is not a procedural detail but an element that affects the outcome, which is why it is studied before acting.
Can the accused demand that the injured party return the settlement sum if the case continues?
This is a separate civil question that depends on what the two parties agreed and the form in which the agreement was documented. It is one of the main causes of later disputes when a settlement is concluded without precise legal drafting.
Does the injured party need a lawyer as long as the Public Prosecution is prosecuting the offender?
The Public Prosecution represents society, not the injured party. If the injured party wants compensation, wants to review the file, or wants to protect their position from settlement pressure, this requires a lawyer who represents them specifically.
Does it make a difference if the injured party is a minor?
Yes, disposing of the private right where a minor is concerned is governed by special rules relating to guardianship (wilaya), tutorship (wisaya) and the minor's interest, and it does not take effect merely with the consent of the minor's family. Where the accused is himself a juvenile, the lawyer examines a different track, since a private-right action is not admissible before the Juvenile Court and compensation is claimed before the competent court, as set out in the article Juvenile Cases under Jordanian Law.
Legal Consultation
Confusing the public right with the private right is what costs the parties most in Jordanian criminal cases: on the side of the accused and their family, a large settlement sum may be paid for a waiver that does not stop the trial at all; on the injured party's side, a right to compensation may be given up under social pressure without realizing that the criminal prosecution would have continued anyway. Since the answer changes with the legal characterization of the charge, not with the colloquial name of the offense, reading the indictment decision correctly is what determines the value of any settlement before it is signed. To obtain specialist legal consultation in criminal cases, or to read our related articles on the public right and the private right in indecent assault cases and the offense of theft under the Jordanian Penal Code, you can contact Alabwini Law Firm.
