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Flash info Morocco | The New Constitution of Morocco: the Democratic Turning Point

30/11/2011

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On July 1, 2011 Moroccans citizens approved the project of the new Constitution by referendum at nearly 98%. This reform of the supreme law of Morocco announced at the royal speech of March 9, 2011 is perceived as necessary to the consecration of the democratic principles in Morocco. The new Constitution which entered into force on July 30, 2011 is based on many ground-breaking axes which the main ones are set out below.

The parliamentary elections of November 25, 2011 which saw an increasing participation rate (45 %) in comparison to the parliamentary elections of 2007 (37 %), constitute an essential part of the democratic process in Morocco in the wake of the entry into force of the new Constitution.

** 1. The consecration of the separation of powers
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The system in Morocco is defined as a constitutional, democratic, parliamentary and social monarchy. The new Constitution has also removed any reference to the sacredness of the monarchy.

The Constitution restates that there shall be no one-party system in Morocco. Political parties and trade unions can only be dissolved by a judicial decision. The opposition now benefits from a constitutionally acknowledged status and is provided the right of proportional representation within all bodies of the Parliament.

The hierarchy of norms in Morocco is clearly defined. International conventions duly ratified by Morocco have priority over domestic law. The powers of the Chamber of Representatives, whose members are elected trough direct universal suffrage, are increased as a legislative body of the country. The realm of law has been extended and now includes amnesty.

Moreover, defections by members of the parliament and all floor-crossings are prohibited for the members of parliamentary chambers throughout their mandates. The executive power is henceforth wielded by the Government presided by the “Prime Minister” turned the “Head of Government”. The latter is appointed by the King among the political party which came first in the legislative elections. His function has been enhanced in the Moroccan political sphere with the possibility recognized for the Head of the Government to dissolve the Chamber of Representatives.

However, the King, other executive, keeps some prerogatives as the right to dissolve the two chambers of the Parliament, accreditations of ambassadors, and the prerogative of mercy.

The independence of justice from the legislative and executive powers is admitted. The Constitution creates the Superior Council of the Judiciary (in French “Conseil supérieur du pouvoir judiciaire”), a financial and administrative autonomous organ replacing the Supreme council of the Magistracy (in French “Conseil supérieur de la magistrature”) which was depending on the Ministry of Justice.

The Constitutional Council became the Constitutional Court composed of members known for their experience and notable skills in law. As part of the preventive control of constitutionality of law, the number of signatures of parliamentarians, required for the referral to the Court was decreased. In addition, the referral to the Constitutional Court is now possible for individuals if related to the protection of fundamental rights: it is an extension of the controlling power of the Constitutional Court on enacted laws when an exception of unconstitutionality based on a violation of rights and freedoms guaranteed by the Constitution are arisen by a party during a trial. The conditions and requirements for the application of this new constitutional provision are to be set by an organic law which will allow the comparison of the similarities provided by this new mechanism with the “Preliminary ruling on constitutionality” in force in France since March 1, 2010 (ex. Referral of the
preliminary question of constitutionality by the judicial or administrative jurisdiction).

** 2. The recognition of fundamental rights and freedoms
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Human Rights in Morocco are now of a constitutional value. The rights hereby consecrated concern notably the right to a fair trial and to a judgment rendered within a reasonable period, the presumption of innocence, the right to life, gender equality (extended), the protection of privacy, freedom of thought, and freedom of the press.

Furthermore, many councils and institutions existing before the reform are now recognized by the new Constitution of Morocco as the Mediator, the National Council of Human Rights, the Competition Council, the Economic Social and Environmental Council, the National Body of Probity and against corruption, etc.

Governance mechanisms are also consecrated with the reinforcement of the Court of Auditors function into controlling public finance. The balance of public finance is also a constitutional principle. Conflicts of interest, insider trading, and anti-competitive practices are prohibited. Morocco makes from the fight against corruption and the necessity to settle an effective internal control a priority. The main goal is to enshrine the principles of transparency and responsibility.

** 3. Constitutional recognition of the symbols of national Moroccan identity
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The new Constitution declares Amazigh an official language of the Kingdom as it is the case for Arabic. Morocco remains a supporter of the learning and command of foreign languages commonly used in the world. It also recognizes the unity of its national identity enriched by its various tributaries.

The decentralized territorial organization of Morocco, a significant project currently undertaken, is now affirmed in the New Constitution.

This new Constitution constitutes a positive evolution enshrined in the democratic process of Morocco. The Parliament and the Head of the Government are now granted a larger room for manoeuvre which reassures the international community on the stability of the country.

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** Contact
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Marc Veuillot, Director of CMS Bureau Francis Lefebvre Morocco

Wilfried Le Bihan, co-director of CMS Bureau Francis Lefebvre Morocco

Authors

Picture of Marc Veuillot
Marc Veuillot
Managing Partner
Casablanca