- ZOUHAIR BAGHOUGH
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Constitutional speeches are like Earthquakes, and in every sense of the word: they are earth-shattering, and they often come in a pair: the wave and the counter-wave follow each other and when the magnitude is high enough, the effect on the landscape is impressive. But this earthquake is not one. As a matter of fact, it might very well turn out to be a false alert.
Yesterday evening, the King gave the second speech on the Constitutional Reform, and announced Referendum Day for July 1st, just like what Khalid Hariry tweeted about on May 18th when his colleagues and himself met the Interior minister. At the same time, the speech laid out the essential features of what is essentially the new constitution, which is more than likely going to be voted by a comfortable margin. Before considering the political implications of this extraordinary short time span for political debate and campaigning, as well as the already biased rules of the campaigning game.
Contrary to the constitution circa 1996, the project has been carefully drafted, with a special focus on detailed procedure, perhaps to excessive lengths. Because the past constitutions have been written -and then cosmetically arranged so as to give a façade of democratic constitution- by one man, the late king Hassan II, and by his own admission, the writing process is daunting, but in his case, he managed to produce five constitutions that fit his larger-than-life character and lust for power; The latest of these Hassan II-era constitutional pieces of legislation, the 1996 constitution, was supposed to seal the deal on political transition, the so-called “Alternance Consensuelle“. So compared to the succinct constitutions we have had since 1962, this one is a true constitutional lawyer’s piece of work. Too bad it has been written by mainstream and conservative panellists.
The 180 articles in the new constitution, contrary to what has been speculated upon, do not change the monarchy from executive to symbolic, but rather recognize a de facto actual exercise of power; as we shall see later on, the monarch retains a great deal of appointment privileges, and while he did cede many of his formerly privileges, these concessions are not enough for the new constitution to qualify as that of a parliamentary monarchy. This is so because many of its articles are bluntly contradicting various universal standards of democracy, among others the separation of powers, the precedence given to and accountability required from the elected representatives of the people. None of these things have been mentioned in the new draft.
Of these cosmetic changes, there is also much to be discussed; The word cosmetic is used here advisedly, mainly because while they do provide feedback to long-standing grievances, they remain insufficient as to the expected efficiency, or even with regard to the political symbolism from such measures. Contrary to the 1996 vintage and previous, the new constitution admits the diversity of the Moroccan identity, as specified in the preamble:
المملكة المغربية دولة إسلامية ذات سيادة كاملة، متشبثة بوحدتها الوطنية والترابية، وبصيانة تلاحم مقومات هويتها الوطنية، الموحدة بانصهار كلمكوناتها، العربية – الإسلامية، والأمازيغية، والصحراوية الحسانية، والغنية بروافدها الإفريقية والأندلسية والعبرية والمتوسطية. كما أن الهوية المغربية تتميزبتبوئ الدين الإسلامي مكانة الصدارة فيها، وذلك في ظل تشبث الشعب المغربي بقيم الانفتاح والاعتدال والتسامح والحوار، والتفاهم المتبادل بين الثقافاتوالحضارات الإنسانية جمعاء.
“The Kingdom of Morocco is an Islamic state enjoying an unfettered sovereignty, and is firmly attached to its national and territorial unity, and is committed to uphold the fundamentals of its national identity and all its components, Arabic, Islamic, Amazigh, Hassani-Sahrawi, as well as the fruitful African, Hebraic, Andalusian and Mediterranean influences. Furthermore, the Moroccan identity has a special place for Islam, as the Moroccan people are attached to the values of openness, moderation and forgiveness, in addition to the mutual understanding with all human civilizations”. [all extracts are unofficial translations]
This piece of preamble, while signalling a significant shift in the official narrative, because it now recognizes the obvious, and finally admits that diversity does not harm national unity. But the encouraging opening soon fades away, and the disappointing, almost insulting order of precedence reminds all of us who credited the commission with some amount of good faith that the centre of power, with all its legitimacy, is not yet ready to abandon the Arabo-Islamic hegemony. Notice the order: Arabic, Islamic, then Amazigh, Hassani, and the Hebraic heritage is relegated to the rank of a mere “influence”. Though this might sound like a fickle, this ranking is actually important because the preamble does not explicitly put all these ‘fundamentals’ on an equal footing. And judges can justify many of their ruling by this, as it might come up. Consider the example of a citizen suing the local administration because they refused to register their infant’s Amazigh name. Suppose the case goes all the way up to the Courts. It might very well be that the Judge would sustain the administration’s decision by invoking the order of precedence in these fundamentals. And considering how conservative the Judges’ corps are, this instance is more than likely to be observed in the near future.
The New Royal Motto: "Monarchy Rules All, and That's Official Now"
The positive contribution in the preamble is the unequivocal support and endorsement of international treaties on Human Rights and International Law. This was one of the most important pledge activists wanted the government and the regime to honour, without restrictions or reservations. This does not mean the end of police brutality, or the abuses citizens have to endure whenever they need to deal with the local administration. Again, the liberal tendency within the document itself is hurriedly curtailed in the name of sovereignty (and thus, local context, a window of opportunity to conservative interpretation of international law) -Another peculiar article I noticed was the “Right To Live” (Art.20) and yet death penalty is not explicitly mentioned and abolished; alternatively, this could also be a constitutional roadblock against any pro-abortion legislation. In both cases, a well-meaning established principle is going to yield the opposite, reactionary outcome.
The articles themselves operate pretty much under the same mechanism, especially on the executive branch: the King heads the newly-established Security Counsel (Art.54) still retains the General Staff (Art.53) religious leadership (the 1996 Article 19 turns into Article 41) and finally all cabinet meetings where the strategic decisions are made.
الملك، أمير المؤمنين وحامي حمى الملة والدين، والضامن لحرية ممارسة الشؤون الدينية. يرأس الملك، أمير المؤمنين، المجلس العلمي الأعلى، الذي يتولى دراسة القضايا التي يعرضها عليه. ويعتبر المجلس الجهة الوحيدة المؤهلة لإصدار الفتاوى المعتمدة رسميا، بشأن المسائل المحالة عليه، استنادا إلى مبادئ وأحكام الدين الإسلامي الحنيف، ومقاصده السمحة. تحدد اختصاصات المجلس وتأليفه وكيفيات سيره بظهير. يمارس الملك الصلاحيات الدينية المتعلقة بإمارة المؤمنين، والمخولة له حصريا، بمقتضى هذا الفصل، بواسطة ظهائر
الملك هو القائد الأعلى للقوات المسلحة الملكية. وله حق التعيين في الوظائف العسكرية، كما له أن يفوض لغيره ممارسة هذا الحق.
يُحدث مجلس أعلى للأمن، بصفته هيئة للتشاور بشأن استراتيجيات الأمن الداخلي والخارجي للبلاد، وتدبير حالات الأزمات، والسهر أيضا على مأسسة ضوابط الحكامة الأمنية الجيدة.
The innovation in this constitution comes from the appointment of a Prime Minister from the majority party after a general election. The perverse established mechanism is too obvious: should a political party not amenable to the King’s views win a seizable majority of seats, the King, or his advisers, can weaken them by picking a Prime Minister other than the Party Leader. Divide and Rule, so that only obedient Prime Ministers can be appointed. Other than that, the King still retains power to hire and fire Ministers.
On the Judiciary, nothing has been done. Judges are not independent, because the King still chairs the Supreme Judiciary Council (the name changed a bit, but the attributions remain the same)
يرأس الملك المجلس الأعلى للسلطة القضائية.
يوافق الملك بظهير على تعيين القضاة من قبل المجلس الأعلى للسلطة القضائية.
Article 64 is a concrete threat to the Members of Parliament’s freedom of speech and immunity. The fact that the article enumerates these highly political cases instead of those potentially related to common law matters is not only a political threat to outspoken MPs, it is also an implicit invitation for the peoples’ representatives not to be bold, and whenever they can get away with it, engage in corruption and other improper behaviour from an elected office.
لا يمكن متابعة أي عضو من أعضاء البرلمان، ولا البحث عنه، ولا إلقاء القبض عليه، ولا اعتقاله ولا محاكمته، بمناسبة إبدائه لرأي أو قيامه بتصويت خلال مزاولته لمهامه، ماعدا إذا كان الرأي المعبر عنه يجادل في النظام الملكي أو الدين الإسلامي، أو يتضمن ما يخل بالاحترام الواجب للملك.
All in all, the reports on newspapers that the King has curbed some of his powers is an attempt to polish a timid political process, or outright ignorance of Moroccan politics since 1956. While it is true the new articles spend a great deal of lengthy and tedious enumeration of dispositions, they do not bring new concepts other than those necessary for the decorum. Actually, if it was not for these accessories, the constitution just writes down the powers ” The King discovers while He practises them” as Professor Mennouni once said.
This lengthy overview of the new constitution describes quite eloquently the new regime we are living under. We have moved from the dictatorial Hassan-II era to that of Soft Authoritarianism. The red lines still exist, but there is no systematic repression on those who cross it. But to these impudent, contentious subjects, the retribution is random and sometimes harsh. In any case, both eras share the random-looking pattern of repression; But now that the Monarchy’s legitimacy is firmly and strongly entrenched, they can engage directly into formalizing their patronage over the other institutions.
From a historical point of view, and bearing in mind the evolution of the balance of forces between the Palace and its real opposition, this new constitution does not take away powers from the King, it does not add up some more (if that was ever possible) it simply recognizes the Regal Hegemony.