The lack of a clear legal framework governing how permanent committees interact with private sector actors results in unorganized and informal interactions. This absence of structure may harm principles of transparency and equality.
On August 7, 2024, the Constitutional Court issued its decision No. 243.24M.D[1] regarding the review of the Rules of Procedure[2] of the House of Representatives. This decision marks the second ruling on the same subject during the current legislative term (2021–2026), following the Court’s earlier decision No. 209.23M.D[3], issued on March 1, 2023. The second decision addressed numerous articles previously deemed constitutional by the Court, as well as new or amended articles introduced in response to the Court’s prior remarks.
This review was conducted to ensure compliance with the internal rules and constitutional provisions. The Court emphasized the importance of the House of Representatives adhering to constitutional principles in organizing its internal operations. It ruled that most of the articles conformed to the Constitution but raised observations and rejected certain provisions that were deemed inconsistent with constitutional principles. A notable example is Article 130, which concerns the permanent committees’ engagement with private sector representatives.
In its ruling, the Court declared a provision within Article 130 unconstitutional. This provision permitted permanent committees to “hear from private sector actors.” The Court based its decision on the lack of a clear constitutional text regulating such interactions. However, this decision raises questions about its consistency with the Constitution’s spirit, which advocates for participatory democracy, and with global trends regarding the regulation of lobbying activities and their interaction with parliamentary institutions.
Legal Arguments Presented by the Court
The draft Rules of Procedure of the House of Representatives were approved by a majority during a plenary session on July 16, 2024, with 117 members voting in favor and two abstentions. The amendments covered 27 articles, focusing on ensuring parliamentary opposition representation in key roles such as treasurer and secretary of the Council Bureau, appointing members to fact-finding commissions by the Bureau, and clarifying the permanent committees’ competencies concerning constitutional bodies and institutions.
Article 130 of the draft text submitted to the Constitutional Court stated:
“Permanent committees may, at the initiative of their bureaus and within their assigned competencies, request to hear the opinions of experts, representatives of organizations or entities, or private sector actors.”
The Constitutional Court decided that the section of the article permitting committees to hear from “private sector actors” was unconstitutional. However, it confirmed that the rest of the article could still comply with the Constitution under certain conditions.
- Exclusion of Certain Bodies: Requests to hear from representatives of entities mentioned in Articles 161 to 170 of the Constitution must align with their governing laws, given their independence.
- Approval of Requests: Committees must obtain prior approval from the Bureau of the House of Representatives before referring their request to the intended party.
- Consent of Invitees: Hearing requests require the prior consent of the individuals concerned.
- Advisory Nature: Opinions of experts and representatives must be purely advisory, aimed at leveraging their expertise.
- Neutrality and Confidentiality: Members of the permanent committees must remain neutral, objective, and transparent, using information obtained only for their parliamentary duties, in accordance with Article 393 of the Rules of Procedure and relevant laws.
Nonetheless, the Constitutional Court rejected the last provision in Article 130, which allowed the inclusion of “private sector actors.” It argued that the relationships between various authorities are governed by constitutional provisions and that permanent committees in Parliament operate solely within the framework of the Constitution and regulatory laws.
The Court’s Adherence to the Constitution and Regulatory Laws
It is evident that the Constitutional Court relied in this decision on the principle of strict adherence to the competencies outlined in the Constitution and regulatory laws. The Court holds that any expansion of competencies must be based on clear legislative provisions, which were absent in this case.
The Court’s rejection, due to the absence of a constitutional or legal basis allowing permanent committees to hear from private sector actors, raises the following question: Must all provisions in the Rules of Procedure be explicitly mentioned in the Constitution? Or is it sufficient to rely on general principles within the Constitution that provide a framework, while these principles are detailed and clarified through internal rules and other laws?
Regarding the issue of hearing opinions from private sector actors before permanent committees, the absence of explicit mention in the Constitution does not necessarily mean it is prohibited. This provision could be governed by the House’s Rules of Procedure, based on general principles like participatory democracy, as long as it does not conflict with the Constitution’s fundamental principles.
In other words, internal rules should be consistent with general constitutional principles, even if the Constitution does not explicitly specify every detail of internal regulations. While the Constitution may not cover every aspect, laws or internal rules must not include provisions that conflict with the core principles outlined in the Constitution.
When the Constitutional Court conducts prior review of the compliance of internal rules or laws with the Constitution, it ensures that these rules or laws do not violate the Constitution’s fundamental principles. If a specific provision in the internal rules (e.g., Article 130) conflicts with these principles, the Court may declare it unconstitutional. Otherwise, overly restricting the constitutional scope could limit its interpretation and development through laws and internal rules, as long as this is done in accordance with constitutional principles and without contradicting any of its provisions.
Excessive Caution Delays the Development of Morocco’s Experience
The 2011 Constitution emphasizes in several of its articles the promotion of participatory democracy and openness as fundamental pillars of the political system. Notably, Article 1 establishes participatory and citizen democracy as core components of the Kingdom’s constitutional system, while Article 12 ensures the participation of civil society in the preparation and implementation of decisions and projects within elected institutions and public authorities.
Thus, excluding the private sector—an essential part of society—may contradict this orientation.
Moreover, as a socioeconomic component, the private sector has the right to interact with political and legislative institutions transparently and without binding commitments. Preventing parliamentary committees from hearing private sector actors restricts dialogue between economic stakeholders and Parliament, thereby weakening the spirit of consultation and partnership that the Constitution seeks to promote.
In most democratic countries, lobbying activities are regulated to ensure transparent and open interactions between lobbyists and parliaments or government institutions. Instead of rejecting engagement with the private sector within parliamentary spaces, Morocco could benefit from developing a legal framework to regulate such interactions, ensuring they occur transparently and ethically.
International Models Regulating Lobbying Activities in Parliaments
| Country | Lobbying Regulation |
| United States | Lobbying Disclosure Act[4] |
| European Union | Transparency Register for Interest Representatives[5] |
| Canada | Lobbyists Registration Act[6] |
| Australia | Lobbying Code of Conduct[7] |
| United Kingdom | Transparency of Lobbying Act[8] |
Source: Prepared by the researcher.
Lobby groups play a vital role in advanced democratic systems by providing information and expertise to lawmakers and advocating for specific interests. To ensure this process succeeds, a legal and regulatory framework must be established to promote transparency, accountability, and the prevention of conflicts of interest. Morocco can benefit from international experiences and develop a lobbying system that improves the quality of the legislative process and better represents society’s interests.
It is well known that the private sector plays a crucial role in economic and social development. Listening to its opinions can help improve public policies and refine legislation, especially regarding the annual budget law, a legislative process that involves both the government and Congress. Other stakeholders could be engaged through consultations.
Countries that have allowed their parliamentary institutions to engage with the private sector, as shown in the table above, have not necessarily experienced conflicts of interest, provided transparent rules govern this interaction. The main reason for not rejecting this approach is that such consultation is non-binding. Hearing from private sector actors does not mean that parliament is required to act according to their interests. Instead, their opinions serve only as an additional source of information and advice. These opinions are strictly consultative and do not compromise the principle of legislative independence.
The Constitutional Court’s decision outlined several conditions for organizing the process of hearing from other bodies that it has deemed constitutionally permissible to be heard by the committees. These conditions specify that permanent committees must only hold hearings after submitting the request to the office of the relevant committee, which will review it before forwarding it to the appropriate party. The response to the request must also be subject to prior approval from the concerned parties. Additionally, the opinions of experts and representatives of organizations or bodies are advisory and intended solely for consultation and gaining their insight. Members of the permanent committees must maintain neutrality, objectivity, and integrity, and can only use the information obtained during these hearings in connection with their parliamentary responsibilities. This indicates that actors from the private sector would also be subject to the same conditions.
In its justification for the need for constitutional support for any provision regulated through internal rules, the Constitutional Court referred to Article 102 of the Constitution, which outlines the institutions that can be heard before the committees (officials of administrations, institutions, and public enterprises). However, it did not specify the constitutional basis for hearing those it considered constitutionally acceptable to be heard before the committees (experts or representatives of organizations or bodies). The likely basis relates to provisions connected to participatory democracy. Nonetheless, the question remains: why were private sector actors excluded? Isn’t the goal of participatory democracy also to include and consult all societal actors? Can’t the opinions of private sector stakeholders contribute value in supporting the functions of the members of the House?
The exclusion of private sector actors from hearings before parliamentary committees appears unjustified, especially since participatory democracy depends on involving all societal stakeholders, including the private sector. The private sector plays an essential role in the consultation and decision-making processes due to its central position in the economy and its direct impact on public policies. Furthermore, excluding private sector actors diminishes the comprehensiveness of consultations, reducing the effectiveness of legislation development, government oversight, and public policy evaluation—all of which require diverse viewpoints to ensure fairness and serve the public interest. Therefore, incorporating the private sector into this process is a vital step toward creating a more inclusive and balanced participatory democracy.
Several countries have passed laws regulating lobbying groups, and including private sector actors in committee hearings could be seen as an initial step toward formally establishing lobbying activities in a transparent and open way. Although lobbying groups already operate behind the scenes of decision-making, the absence of a clear legal framework means they function in the shadows and without regulation, which could weaken principles of transparency and equality. Therefore, incorporating such practices into internal rules could boost trust in the legislative process and help maintain a balance among different societal interests.
Conclusion
In conclusion, we believe the Constitutional Court’s decision may be overly cautious. There is a need to create legal mechanisms that enable regulated interaction between parliament and private sector actors, in line with the principles of transparency and participatory democracy. Furthermore, parliament’s interaction with the private sector does not threaten its independence if it is organized transparently and according to clear rules. On the contrary, such interaction should be a key element in developing parliamentary practices that respond to societal and digital changes, helping evolve a parliamentary system that encourages greater involvement from societal components and promotes participatory democratic citizenship.
Footnotes
[1] Decision of the Constitutional Court No. 243.24 on the constitutionality review of the internal regulations of the House of Representatives, issued on August 7, 2024, Official Gazette No. 7326, dated August 15, 2024. Link on the Constitutional Court’s website: https://www.cour-constitutionnelle.ma/Decision?id=2107&Page=Decision
[2] Internal regulations of parliamentary councils are an essential element of parliamentary work organization. They define the rules for session proceedings, allocation of powers among committees, how they function, and the organization of various parliamentary bodies and their powers. They contribute to ensuring the effectiveness and establishing the rules for legislative, oversight, evaluative, and diplomatic work. Internal regulations are subject to prior review by the constitutional judiciary to ensure their compliance with constitutional provisions and fundamental principles.The Constitutional Dictionary defines parliamentary internal regulations as the system adopted by the assembly, comprising provisions related to organizing its activities, composition, structures, and duties. It includes internal measures, the manner of appointing parliamentary bodies, discipline in discussions, speaking time, procedures to improve the order of debates, voting patterns, and provisions regarding other public authorities.Olivier Duhamel and Yves Mény, Dictionnaire Constitutionnel, translated by Mansour Al-Qadi, The University Press for Studies and Publication, First Edition, Beirut 1996, p. 1191.
[3] Decision of the Constitutional Court No. 209.23 on the constitutionality review of the internal regulations of the House of Representatives, issued on March 1, 2023, Official Gazette No. 7177, dated March 13, 2023. Link on the Constitutional Court’s website: https://www.cour-constitutionnelle.ma/Decision?id=2073&Page=Decision
[4] The United States regulates lobbying activities through the Lobbying Disclosure Act of 1995. Link: https://lobbyingdisclosure.house.gov/lda.pdf
[5] The European Union regulates lobbying through the Transparency Register for Interest Representatives. Link: https://transparency-register.europa.eu/index_en
[6] Canada regulates lobbying through the Lobbying Act. Link: https://laws-lois.justice.gc.ca/eng/acts/l-12.4/
[7] Australia regulates lobbying through the Lobbying Code of Conduct. Link: https://www.ag.gov.au/integrity/australian-government-register-lobbyists/lobbying-code-conduct
[8] The United Kingdom regulates lobbying through the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014. Link: https://www.legislation.gov.uk/ukpga/2014/4/contents
Meryem Blial
An academic researcher specializing in constitutional law and political science, Maryam prepared her doctoral thesis on the topic of "Open Parliament." She works in project management, coordination, and partnership building, with a particular focus on communication and collaboration with parliamentary institutions. She is also interested in political analysis, parliamentary monitoring, and legislative drafting.
