Morocco’s 2011 Constitution

The 2011 constitution contains many references to human rights and judicial reform and independence. The language is in many instances general, qualified, and/or conditioned on the future adoption of laws that would implement the constitutional principles. Even so, the inclusion of such language that the previous constitution lacked is positive in that it anchors these rights in the country’s supreme legal document.

Nearly two years after adoption of the constitution, Morocco has yet to adopt any laws required to implement the constitutional principles relating to protection of human rights or judicial independence. Addressing the parliament at its opening session for the season, King Mohammed VI on October 12, 2012, urged the government and legislature to speed up the adoption of laws necessitated by the constitution. The king singled out the principles related to the judiciary, urging the adoption of laws on the High Council of the Judicial Authority and on the rules governing judges:

[H]ere too we wish to invite you to follow scrupulously the letter and spirit of the constitutional provisions relating to the judicial authority. We also call on the High Commission of National Dialogue on Reforming the Judiciary to make the independence of the judiciary the cornerstone of its recommendations.[130]

The preamble of the constitution asserts the primacy of international law over domestic law, something that was not present in the 1996 Constitution. However, that primacy applies “within the framework of the dispositions of the constitution and the laws of the kingdom, in the respect of its national immutable identity.” Depending on how authorities interpret these conditions, they could undermine substantially the primacy accorded to international human rights law.

Moreover, the international law that is accorded primacy is limited to “international conventions duly ratified by Morocco” and thus does not include general norms of international human rights law outside of those conventions that Morocco has signed. This contrasts with the broader embrace of international law found in the constitutions of South Africa and Kenya. The former states, in article 232, that “customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.” The next article states, “When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.”

Kenya’s constitution states in article 2.5, “The general rules of international law shall form part of the law of Kenya,” and in article 21.4, “The State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.”

Article 6 of Morocco’s constitution affirms that the law applies to all persons equally: “The law is the supreme expression of the will of the nation. All persons, physical or moral, including public bodies, are equal before it and are obliged to submit to it.”

The constitution proceeds to affirm many specific rights pertaining to citizens before the legal system. Articles 23 and 120 guarantee the right to a “fair trial,” with article 120 also stating, “The rights of the defense are guaranteed before all jurisdictions.” Articles 23 and 119 affirm the presumption of innocence. Article 109 prohibits any interference in cases that are before a court and states, “A judge who fails in any way to fulfill the obligation to be independent and impartial is guilty of a serious professional failing, and may be subject to judicial consequences.”Judges are to render their verdicts “solely on the basis of the impartial application of the law.”

Article 118 guarantees the access to the justice system for everyone “to defend his rights and his interests that are protected by the law.” Article 120 enshrines the right to “a judgment rendered in a reasonable time frame.” Article 121 provides that access to justice is free for those who lack the resources to file a case, “in those cases where the law provides for it.” Article 122 gives a right to reparation from the state to a person who is a victim of a “judicial error.” Article 123 says trials are to be open except when the law provides otherwise.

The 1996 constitution omitted the above-mentioned rights, found in articles 23,109, 118, 119, 120, 121, 122, and 123 of the 2011 constitution. This does not mean that Moroccan law did not recognize these rights previously. For example, the Code of Penal Procedure affirms the presumption of innocence in its first article. However, the elevation of these rights to constitutional principles is a welcome step in affirming their supremacy within the legal framework.

The Constitution also modifies the composition of the official body that governs the profession of judges in ways that could lessen, but not remove entirely, the influence of the executive over the promotion, reassignment, and disciplining of judges. The new “High Council of the Judicial Authority” (Conseil supérieur du pouvoir judiciare), replacing the High Council of Judges (Haut conseil de la magistrature), is still presided over by the king (article 115), but the post of “delegated president” is now filled by the president of the Court of Cassation rather than by the minister of justice and freedoms, who occupied this function under the 1996 constitution (article 86A) but who does not sit on the new High Council. Another innovation of the 2011 constitution is that the president of the National Human Rights Council and the state mediator sit on the High Council.[131]

The Constitution also created in article 129 a Constitutional Court that is empowered to rule on the constitutionality of laws. This new institution, which has yet to be established, must review proposed laws and rule on their conformity to the constitution (article 132). A law that the court declares to be unconstitutional cannot be promulgated (article 134). A ruling by the Constitutional Court is not subject to appeal (article 134).

Parties before the courts can challenge before the Constitutional Court a law being applied in their case on the grounds that it “undermines the rights and liberties guaranteed by the constitution” (article 133). If the Constitutional Court agrees, the law is invalidated.

This power of the Constitutional Court to review existing laws represents an advance over the 1996 constitution, which created a Constitutional Council but endowed it only with the authority to review the constitutionality of proposed laws (articles 58 and 81). The new constitution also for the first time gives citizens before a court the right to appeal to a higher body to rule on the constitutionality of the laws being applied in their case.

The Constitutional Court has yet to exercise any of these powers because parliament has not adopted the laws needed to bring it into existence.

The 2011 Constitution also forbids under all circumstances acts of torture or acts that are “cruel, inhumane, degrading, or that harm one’s dignity” (article 22). Article 23 declares, “Secret or arbitrary detention and forced disappearances are crimes of the greatest seriousness and expose their authors to the most severe punishment.” To protect the rights of persons in custody, the same article requires that authorities “immediately” inform a person taken into custody “in a manner comprehensible to him, the reason for his detention and his rights, including the right to remain silent.” The person in custody “must benefit as early as possible from legal assistance and the possibility to communicate with his relatives, in conformity with the law.”

The 1996 constitution does not mention torture, forced disappearance, secret or arbitrary detention, or the above-mentioned rights of persons taken into custody. While Morocco’s Penal Code and Code of Penal Procedure criminalizes torture and arbitrary detention and provides to detainees most of the rights enumerated above, their introduction as principles in the 2011 constitution suggests a political will to accord them primacy in the reform process.

The issues of torture, arbitrary detention, prompt access to legal counsel, notification of next of kin, and presumption of innocence go to the heart of the question of access to a fair trial. The cases presented in this report involve the violation of several rights that are now, to Morocco’s credit, enshrined in its constitution.