How would the protection of dissents in judicial bodies’ deliberations contribute to the auto-moralization of the judiciary?
The decision-making process within the judicial bodies is characterized by complexity, especially in deliberations. Hence, there is a need to develop mechanisms for correlating responsibility and accountability, protect minority opinions, and encourage jurisprudence. In this context, the amendment of the new Judicial Organization Law is considered one of the most important amendments that seek to reorganize the judiciary in Morocco and entered into force starting in mid-January 2023 after it has exhausted all legislative procedures and was issued in the Official Bulletin on 07-14-2022. Among the important developments of the Judicial Organization Law is its approval, for the first time, of the right to officially record dissents in the deliberations of judicial bodies in Moroccan courts.
This new mechanism would allow judges to record their dissents for the other judges, and members of the deliberation body when making judicial resolutions. This would also protect the opinion of the minority within these deliberations, especially in cases where there is an unpalatable violation of the law. Moreover, this mechanism would also contribute to the process of judicial auto-moralization, as upholding the dissent is tantamount to drawing the attention of the rest of the members to the need to review their conciliator before announcing the resolution, if needed. It also contributes to the accurate delineation of responsibilities, especially when it comes to disciplinary accountability and its legal obligations, so that it would be focused on the offender alone. This new legal requirement removed the element it had previously adhered to i.e. the collective deliberation decisions and their confidentiality. Furthermore, this new mechanism would revive the deliberations, as long as deliberators would be legally organized instead of being unable to influence or feel that their opinions are of no importance.
Organizing dissents in the Moroccan Judicial Organization Law
The first paragraph of Article 16 of the Moroccan Judicial Organization Law stipulates that rulings of the collective judiciary body be issued «unanimously or by the majority, after studying the case and deliberating confidentially. They also include the dissenting judge’s justified point of view in a special confidential report signed by the members of the body, which is then put in a sealed envelope, and kept with the president of the concerned court after it is included in a special record. It cannot be viewed by others unless it a decision from the Supreme Council of the Judicial Power is issued. »
In general, the issue of the dissents, from the legislative perspective, takes two trends, one of which is Anglo-Saxon and the second French. The first trend tends to protect the minority within the deliberations, as it stipulates that their opinions be included in the copy of the verdict itself, and not only in the confidential record. In addition, some trends provide for the possibility of viewing the dissents for each person in interest through records placed at their disposal at the headquarters of the court issuing the verdict. While the second trend – based mainly on the approach of French legislation – adopts the principle of confidential deliberations, and thus forestalls all hope to know the details of judicial bodies’ deliberations, at least in relation to the outcome of the verdict and its reasoning.
The Moroccan Judicial Organization Law took a midpoint approach, as it preserved the principle of confidential deliberations as it was in the past and only granted the possibility for the judge with dissent the right to record it with the body they work with, which may be tripartite or a quinquennial.In the latter case, we can imagine two dissenting opinions, not one, and therefore they can be recorded in the report stipulated in Article 16.
The principle of confidentiality has made it impossible to identify a judge with a dissenting opinion except by the body that issued the ruling, excluding the other components of the court body (the Public Prosecution and Registry Clerk) as well as any other person within the court, including its president.
The confidential report containing the dissent is written in the presence of members within the deliberation and is put in a sealed envelope and handed over to the president of the court who records it, without reading it, in a special administrative record and puts it in their office for ten years. Anyone who discloses its content will be subject to severe legal penalties, as this is considered a serious misconduct. Preserving the principle of confidentiality, the contents of this record can only be viewed by the decision of the Supreme Council of the Judicial Power.
In line with the implementation of the Judicial Organization Law, the delegated President of the Supreme Council of the Judicial Power forwarded a Journal on December 08 2022, to several courts. It addressed several developments introduced by the aforementioned law, including an explanation of the application of Article 16 (relating to dissents) from an administrative perspective.
Since the whole body delivers the sealed envelope to the president of the court or, in his absence, his deputy, no one would ever know who the judge with the dissent is. A receipt containing the judicial file information must be handed over to the entire body, and the president of the latter is responsible for delivering it to the judge with the dissent. The Journal was also attached to a modular report, in order to maintain the unity of action in all courts, and to record the justified dissent.
It should be noted that Article 16 of the Judicial Organization Law has some ambiguity, as it did not clarify a number of administrative aspects of this process, namely the deadlines for submitting the report to the president of the court. For example, is it immediately after the end of the deliberation or after the verdict is pronounced? What to do if it is delayed for days? Does the president of the court accept receiving the report from the body or not? Noting that the journal of the delegated president, which is administrative, stipulates that in the event of inability to deliver the envelope to the president after the end of the session, the judge with the dissenting opinion is to keep it until the first working day, then the body delivers it to the president of the court. Moreover, the duration set for keeping the confidential report, which is ten years, is much longer than the duration set for statute of limitations for disciplinary offenses for judges, which means that the legislator is very keen on preserving this opinion for other useful purposes. In addition, the law did not clarify the outcome of the report after this period, unlike a version of the draft law on judicial organization, which stipulated that the report should be handed over to the Archives of Morocco after this duration.
How will the recording of the dissenting opinions contribute to the moralization of judiciary?
The stipulation of the law to include the dissents within the deliberations of the judicial bodies, even within the limits referred to above, is considered one way of auto moralization of judicial work in Morocco, as the preventive aspect and transparent procedures overlap with the injunctive aspect. In general, recording and protecting the dissents will contribute to achieving several results:
- First: Assuming responsibility by each judge individually: would help define responsibilities and penalties more accurately. When the judicial work used to be carried out within collective judicial bodies, and with the imposition of the principle of confidentiality of deliberations on members of these bodies, the entire body used to be held responsible in the event of errors, especially the deliberate ones. When deciding on disciplinary liability by the Supreme Council of the Judicial Power, it was difficult to distinguish between those who were in flagrant violation of the law and those who gave an opinion in accordance with following the law within these bodies. With this new legal amendment, it would be easier to distinguish between different opinions, and thus protect the holder of a sound, conservative opinion (hypothetically speaking) from violating the law, especially if it is a flagrant and unpalatable breach.
- Second: It has a preventive function: the mere fact that the judge expresses his/her right to preserve his/her opinion in a record set for this purpose and to have all members sign it, would have a psychological effect and a reminder to the rest of the members of the need to reconsider their decision if it is flawed or clearly and intentionally contrary to the law.
- Third: Protecting the opinion of the minority: The process of recording dissents could protect the minority from the dominance of the majority opinion imposed by the democratic functioning of deliberations when it is impossible to reach a consensus on the judicial resolution and resort to voting. This is applicable in several areas, namely the economic one, where the company law provides several requirements on the protection of the minority within these companies and the guarantee of expressing their opinions in order to protect interests within the companies and the general economic system as well.
- Fourth: Encouraging jurisprudence: Establishing the right to record dissents would encourage jurisprudence and the vitality of the collective deliberations of the judicial bodies, as the third, fourth or fifth member would have to work hard to justify their opinions in each file that could be controversial. This may result in convincing the rest of the body of the dissent, which may be a good jurisprudence, instead of the frustration resulting from the inability of the dissenting opinion holder to influence the deliberation, and thus retreating from expressing it because it would not have an impact on the deliberation nor the future when liability is raised.
- Finally, this legal means (preserving dissents), must be applied optimally so that it achieves the desired preventive result of moralization, and mitigate the damage to the reputation of the judiciary when professional and behavioral violations are committed, especially those related to bribery or influence-peddling. As this may affect other areas directly or indirectly. Here lies the importance of this auto- and confidential means of the moralization of judicial work.
 This relates to Law No. 38-15 on judicial organization – available for full review on the official website of the General Secretariat of the Moroccan Government at: http://www.sgg.gov.ma/BO/AR/3111/2022/BO_7108_Ar.pdf
This law has taken six months before it entered into force, so that the institutions concerned with its implementation are sufficiently prepared under the new developments that this law stipulates, noting that it has been through a long process, starting from 2014 when the Ministry of Justice put it up for public discussion as a preliminary draft, and referred it to the Constitutional Court in 2019. The latter issued a decision on the unconstitutionality of several of its requirements, and thus returned it to the discussion of the Parliament until its issuance in its current form.
It should be noted here that a judge’s serious misconduct entails significant consequences in terms of disciplinary accountability stipulated in Article 97 of the Organizational Law related to the statute of judges including the possibility of immediate suspension from exercising their duties. Here, a discussion is expected about the allowing descriptions of judges’ serious misconducts in an ordinary law instead of an organizational law, because the disciplinary accountability of judges falls within the management of the individual status of judges by the Supreme Council of the Judicial Power, which the Constitution provides for in detail in organizational law. It should be noted that the Constitutional Court, when examining the constitutionality of the organizational law related to the organic law of judges, has confirmed that serious misconduct must be mentioned without limitation.
Journal of the delegated president of the Supreme Council of the Judicial Power No. 52/22 and dated 12-08-2022.
Especially as the collective bodies have returned to cases of detainees, in the new judicial organization law, after they were individual since the amendments of late 2010.
Here, we are not addressing jurisprudence and interpretation in legal texts.
Mohammed Afif Jaidi’s article: Commenting on the dissenting opinion of Judge Ghada Aoun in the case of the Public Prosecutor’s response: Let’s adopt the dissenting opinion system in Tunisia– published in the Legal Agenda on: shorturl.at/dvAGN
Abdellatif Chentouf, has a PhD in Law and is a Visiting Professor at the Faculty of Legal, Economic and Social Sciences in Rabat and Salé, President of the Club of Magistrates of Morocco.