Institutional ReformsResearchJustice Sector Reform after 2011 Constitution: Progress and Challenges

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The Justice Sector in Morocco has witnessed significant refroms since 2011. However, the pace of change is still slow motion.

 

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Abstract

The Justice Sector Reform (JSR) in Morocco has witnessed significant milestones since King Mohammed VI ascended the throne. However, Morocco’s social movement in 2011 paved the way for these constitutional and legal reforms. Since the promulgation of the Charter for the Reform of Justice System in 2013, Morocco has embarked on a series of changes. Despite the importance of these developments, they have been characterized by slowness and lack of dialogue among the stakeholders which has affected the reforms’ efficiency and implementation.

 

Introduction

In April 2017, King Mohammed VI appointed members of the Supreme Council of the Judiciary as an important step in the process of JSR in Morocco, which was followed by momentum after the constitutional amendment in 2011 which established the independence of the judiciary in Morocco. This appointment was part of a large-scale reform of the justice sector in Morocco, which, in addition to the establishment of the Supreme Judicial Council, ensures the independence of the public prosecution from the Ministry of Justice as well as the administrative and technical modernization of the justice sector. The aim is to speed up the sentences and promote the integrity and independence of the judiciary.

While it may appear that these reforms were a response to the February 20 protests that resulted in the constitutional amendement of 2011, this was not the case. In fact, an in-depth look at the course of JSR in Morocco reveals that it followed a pattern of development markedly dynamic since the 1990s.

This paper seeks to shed light on the most important developments in Morocco’s justice reform timeline, the most prominent improvements that have shaped the justice sector since the constitutional amendments in 2011 and identify the most important challenges  facing these reforms.

This paper also argues that the project of JSR in Morocco is faced with several challenges including the challenge of implementation of constitutional principles within the jurisdiction with the same rights that the Constitution of 2011 included. This paper discussess that certain rights and concepts have been reduced by the laws and the slow pace of implementing reforms. Other challenges are related to the functionality of new central judicial institutions such as the Supreme Council of the Judiciary and the Public Prosecutor’s Office and courts. After seven years of public debate, Moroccans are still expecting to see tangible results from these discussions.

 

Brief Overview

Morocco’s desire to pave the way for the rule of law through JSR led the 1991 creation of specialized administrative courts which are in place to rule in cases where the State is a party. Additionally, specialized commercial courts to were established in 1997 to boost investment.

Since the accession of King Mohammed VI to the throne in 1999, the Moroccan Monarch has posed the issue of deep judiciary reform, in a number of speeches, as a national necessity to pave the way for the rule of law. These speeches have witnessed a remarkable development in their handling of the issue of reform, starting with recommendations and observations, and then moving on to a new stage in the formulation of procedural mechanisms. However, after 2011, especially with the political and social movement in Morocco, the speech of March 9, 2011 will lead to a shift in Morocco’s JSR.

 

The New Constitution and the Stakes of the Judiciary Independence

The Constitution of 2011 included a number of principles that have led JSR towards an effective proceeding by clearly stipulating^[i] that the judiciary power is independent from the executive and legislative branches, instead of the old naming of the judicial system in the previous Constitution. It also stipulates that Supreme Council of the Judiciary should include non-judicial figures and that its powers should include non-traditional functions, such as the protection of the independence of the judge, expression of views on the laws of justice, issuance of annual reports on the situation of justice and discussing the criminal policy reports carried out by the public prosecution of the Supreme Court.

It also included freedom of expression, the right of judges to create and join NGOs. Additionally, certain principles that concern the rights of litigants were included like, fair trial and defense the right to litigate, the right to obtain judgments within a reasonable period of time, the presumption of innocence of the accused, compensation for judicial error, the establishment of exceptional courts and the commitment of the authorities to enforce judicial decisions. Immediately after 2011, the stakes were already placed on the implementation of these general constitutional principles in the form of regulatory laws. However, the views of actors involved in the field of justice diverged, especially on the occasion of the launch of the “National Dialogue for Reform of the Justice System” in 2012^[ii].

This step was one of the most prominent steps in the JSR, which was supervised by the former Minister of Justice and Freedoms, Mustafa Ramid. The Moroccan Monarch appointed the members of the Supreme Commission for National Dialogue, which included 40 people representing all constitutional institutions and governmental, judicial sectors, civil society and various qualified figures concerned with the JSR. After his appointments, the minister was keen on launching a national dialogue on JSR with the aim of reaching a national charter that everyone would agree to. He also worked on receiving a royal blessing for this initiative. As a result, the king received 40 members of the commission on May 6, 2012. ^[iii]

The commission worked to prepare the “National Charter for the Reform of the Judicial System” by holding a number of conferences, symposia, field visits and meetings with representatives of civil society and other actors with the goal of reaching a common consensus. Hence, eleven regional seminars were held, accompanied by field visits to inspect the courts, working and attend sessions to listen to judges, employees and lawyers. The Supreme Commission held 41 internal meetings and received written consultation for 111 party, trade union and professional bodiesand held 104 court-level seminars with the participation of 200 civil society organizations. However, the release of the charter in 2013, and the mobility on the level of actors in the field of justice that it included, created a dispute between various parties on three basic points related to the extent of independence of this authority. These included the role of the Ministry of Justice in future stages, the guarantees of individual independence of the judges and the independence of the public prosecution.

Yet, Chapter 107 of the Constitution on the independence of the judiciary raised a debate among the actors on the concept of independence itself. There were two pespectives: the first focuses on the independence of the judge as a person who issues judgments, and therefore other authorities must provide resources to serve this independence. The second explanation tackles the issue of institutional independence of the judiciary in terms of the administration of the judicial facility and its financial independence , i.e. independence of all judicial facilities from the government including the  management of the courts.

This divergence of perspectives was clear between the Justice sector professionals (judges professional associations, ^[iv] and senior judicial officials, such as the first president of the Court of Cassation), and the Ministry of Justice. While the Justice sector professionals lobbied for the financial independence of the judiciary^[v] so that it will administer and govern its entire judicial product and perform its responsibilities independently to eliminate the influence on judicial decisions.

On the other side, the Ministry of Justice has remained the executive authority in the management process based on the constitution which granted financial and administrative independence only to the Supreme Council of the Judiciary, excluding courts and other judicial facilities that must remain under the Ministry’s management, thereby not affecting the independence of the judicial decision. After a tug of war between the ministry and the aforementioned actors, the organic laws related to the Supreme Council of the Judiciary and the Statute of the Judges^[vi] have granted victory to the ministerial vision to not grant the financial and administrative independence to the courts.

Concerning judges, the new constitution has generally offered them guarantees in regards to the management of their professional status by the Supreme Judicial Council, pertaining to appointment, promotion, transfer and discipline to retirement. Judges have also been granted a number of rights related to freedom of expression and founding and joining associations; especially that some of these rights were contingent on the issuance of the two regulatory laws to detail and clarify them. The theme that has prevailed throughout the discussion of this topic was the attempt of the legislator (the executive power that submits draft laws) and the parliament to limit those rights as enshrined in the constitution. Thus, the judges’ duties to act with discretion came to restrict their freedom of expression. As a result, judges have been prevented from running civil society associations to prevent any interaction with civil society actors, and were only permitted to run professional associations.

The constitutional principle prohibiting the transfer of a judge from the court to which he or she was appointed was violated. Despite the fact that this principle represents a guarantee for the judges protecting them from retaliation for positions or judgments, the regulatory law pertaining to the Statute of Judges allowed the transfer of a judge to another court for a certain period by the delegated President of the Supreme Council of the Judiciary and the Chief Prosecutor, as well as by the first presidents of the various appeal chambers in Morocco and their procurators. Although this mandate was the prerogative of the Minister of Justice only, as stipulated in the amended Statute of  Judges dating back to 1974, judicial history records showed that this mechanism was used as a reprisal against some judges.

Even the constant evaluation of judges’ annual work by their direct superiors (president of courts) alone may also be used to compromise the the independence of judges, especially in the absence of evaluation by committees based on objective and clear indicators, as is the case in several comparative experiences.

Moreover, the issue of the independence of the public prosecution in Morocco from the Ministry of Justice has sparked controversy immediately after the issuance of the new Constitution in 2011. The executive branch, together with a large number of political actors^[vii], considered that the Constitution did not decide which body should supervise the work of the public prosecution and left it subject to law provisions, especially since the second part of Article 110 of the Constitution states that “the judges of the public prosecution shall apply the law and shall abide by  written legal instructions issued by the branch to which they belong.”  The views expressed by government officials maintained the idea that the subordination of the Public Prosecutor’s Office to the Ministry of Justice should be maintained in order to ensure that it is held accountable by the Parliament in regards to the implementation of criminal policy. Another group, headed by professional associations of judges and some human rights activists and academics^[viii], believes that the Constitution has gave the prosecutors the status of judges, unlike many international experiences, and made them subject to the Statute of  Judges, mentioning only one judicial authority. The word “authority” vested in Chapter 110 of the Constitution refers to the presidential power within the judiciary, and this is one of the characteristics of the public prosecution^[ix]. Moreover, the experience of having a politician as president of the public prosecution was not successful in the past^[x]. As a result, the regulatory law on the Statute of the Judges – as well as the recommendation of the National Charter for the Reform of the Judicial System – resolved this debate in favor of the independence of the pubic prosecution from the Ministry of Justice.

 

Three Challenges to Implement the Justice Sector Reform    

Since 2011, the product of judicial reform in Morocco has been mainly showcased in the the promulgation of the two aforementioned regulatory laws, and another ordinary law that regulates the structures and administrative aspects of the presidency of the public prosecution after its independence. The Supreme Judicial Council was inaugurated by the King in April 2017 and the powers of the Minister of Justice were transferred to the Attorney General of the Court of Cassation in his capacity as President of the public prosecution in October of the same year.

These laws were a necessary and inevitable foundational step toward the indendance of the judiciary. However, it can also be said that it is limited due to the amount of time it took (about seven years) to go into effect. This period of time, would be suffiscient to enhance most of the needed reforms in the judiciary.

Moreover, the acheivements of the supreme council of the judiciary has limited. With the exception of the bylaw, which, following a number of amendments to its articles, was approved by the Constitutional Court in October 2017. Yet, supreme council of the judiciary  did not yet set  the judicial code of thics, which is one of the most important tasks entrusted to the council at this stage; a task that will contribute to the integrity of the judiciary. However, it has not been achieved so far, especially with the involvement of other actors like professional associations, lawyers and others, in order to develop a common vision that will enable the judicial body to be more transparent and fair.

Now, after seven years since the JSR project began, three challenges could be identified. On the one hand, there existed a  lack of harmonization of a number of laws with the constitutional, institutional and social developments that Morocco has witnessed in past decades. This made it necessary to review most of the laws that were produced in the last century such as the criminal code, the judicial organization, the civil procedure, the administrative and commercial courts codes, etc. It is urgent to start the implementation of the new judicial organization law and review the civil and criminal procedures laws and then review and update the rest of the laws.

The second challenge is to restore trust of citizens in the judiciary;  making the justice system more ethical appears one of the most pressing things to do. After the establishment of the supreme council of the judiciary and the public prosecutor’s office, regardless of the legal and resources available to them, citizens are expecting wide range transformation in the Justice sector through concrete measures. These expectations include transparency, equal opportunities, appointing competent people to take responsibility in courts, and creating new channels of clear communication with the public. The courts also have to operate in a way that takes into consideration the efficiency of administrative and judicial procedures and updating it so that the litigants will obtain their rights within a reasonable time and with reasonable quality. Additionally, enacting administrative procedures that give citizens access to justice through the creation of a coherent system of guidance and digitization of procedures to eliminate several negative phenomena encountered in courts, such as brokering and bribery, and also to work in a scientific and thoughtful way.

Finally, judicial institutions are also expected to be fully involved in moralizing themselves first and therefore become actively involved in the moralization of the public life using a clear criminal policy to fight corruption in all its forms. The code of ethics to be produced by the Supreme Council of the Judiciary would help to establish self-monitoring mechanisms.

 

Conclusion

As mentioned earlier, the steps to improve the justice sector in Morocco since 2011 was important, such as the establishment of the Supreme Judicial Council and the independence of the public prosecution and its related promulgation laws; especially the organic law of the Supreme Council of the Judiciary. However, this process has been slow in terms of effectiveness and achievement.

After seven years, it is needed to speed up the pace of reform by the modern and effesicent legislative, judicial and administrative bodies so that the citizens will actually feel this changes on the ground. Moreover, these judicial bodies will be performing their constitutional role of “protecting the rights and freedom of persons and groups and their judicial security, and ensure the application of the law” (chapter 117 of the Constitution).

The justice facility, as a public facility, should not be excluded from the values ​​of transparency, equality and moralization, rather it should be the example. In this regard, we recommend that transparency should dominate the work of  judicial institutions through the publication of budget and expenditure expenses, so that citizens will have access to it, like other international experiences.

Finally, the appointment in judiciary leadership positions in these institutions and courts must possess the highest principles of equal opportunities and quality, through the establishment of practical procedures, such as the announcement of vacant positions and candidates’ progress as well as other measures that ensure this objective. It is imperative that the public opinion and the media have the opportunity to play their supervisory role.

 

Notes

^[i] from Chapter 107 to Chapter 128 of the Moroccan Constitution of 2011.

^[ii] The National Dialogue on Reforming the Justice System, a body formed by the Ministry of Justice, which brought together many personalities and bodies to examine how to download the principles of the constitutional document on the ground through the laws of regulation or ordinary laws that concern justice. King Mohammed VI personally supervised the installation of its members High on 12-05-2012. And issued several recommendations called “Charter”, a publication on the website of the Ministry of Justice at the following link: http://www.justice.gov.ma/lg-1/documents/doccat

^[iii] “The Moroccan Judiciary under the Arab Movement: The New Constitutional Reform,” National Dialogue, Movement of Judges, p. 7.

^[iv] See the note of the Club of Magistrates of Morocco on this subject at the club’s website at: , browsing history 08-01-2018.

^[v] His position expressed in his inaugural speech on the occasion of the school day organized by the National Observatory for the Independence of the Judiciary under the title: “The organizational bills of the judiciary in Morocco and the question of the independence of the judiciary” in Rabat 14-12-2013.

^[vi] can be found on the website of the Moroccan House of Representatives at the following link: http://www.chambredesrepresentants.ma/sites/default/files/loi_organique_n_106.13.pdf Date of view 20-01-2017.

^[vii] See, for example, the position of the former minister and parliamentarian Hassan Haddad in the site of news days at the following link: http://www.alayam24.com/articles-41121.html  Date of view 17-01-2018.

^[viii]  Many academics have explicitly expressed the need for the independence of the Public Prosecution from the Ministry of Justice, including the researcher in constitutional law Ahmed Mufid – see the statement of justice website development at the following link: http://pjd.ma/%D8

^[ix] Yasin Makhli (currently a member of the Supreme Council of the Judiciary): “The Independence of the Public Prosecution from the Executive: Practical Reduction of the Principle of Linking Accountability to Accountability” – HSPRIS 15-03-2015 at the following link: https://www.hespress.com/writers/ 258050.html  Browsing history is 11-01-2018

[x] – Abdellatif Chentouf’s statement on the website of the Moroccan 24 on the following link: http://m.alyaoum24.com/332845.html#  Date of watch 17-01-2018

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