Morocco's New Constitution and Its Cosmetic Changes

Washington  / Morocco Board News---   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.

الفصل 41
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
الفصل 53
الملك هو القائد الأعلى للقوات المسلحة الملكية. وله حق التعيين في الوظائف العسكرية، كما له أن يفوض لغيره ممارسة هذا الحق.
الفصل 54
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)

الفصل 56
يرأس الملك المجلس الأعلى للسلطة القضائية.
الفصل 57
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.

الفصل 64
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.


Comments (3)  

Salim Bouzid
0 #1 can you please publish this as an article?Salim Bouzid 2011-06-18 15:41
Dear editor, it would be great if you could publish this as an article. If it is not possible, please add it as a comment. If you have any question, please contact me at: . Thanks

Title: A Parliamentary Monarchy A La Marocaine.

Today, for the first time and since the independence, the kingdom of Morocco was faced with a real challenge. A monarchy that reigns and governs is no longer an option for a country where the desire for dignity and social justice has become a necessity.

The so called revolutionary reform is no more than a fancy makeup put on a rotten constitution! Every thing is wrong with the new constitution: 1. the format, 2. the content, and 3. the way it was prepared.

The format did not change, Mr Mennouni who is known to the palace as the expert in judiciary, was apparently stuck in the 60 ties. There is no sign of creativity in the new draft. The text is extremely long and redundant. With over 74 new articles, the quality of new constitution, certainly, did not improve.

The content of the constitution is the real problem, for example, the world King is in every single article that has to do with religion, judiciary, military, government, parliament etc. while the world “sacred” was removed from article 23 (1996), it appears in many different forms, giving him all sort of powers that no known prophet had in the history of humans. These include expressions such as: the king is respected, inviolable (article 46), head of religious affairs, head of Supreme Scientific Council, controls the issuance of fatwas (article 41) etc.

The Monarch is still the head of the military, the Commander of the faithful, the head of the State, has shared responsibility with the prime minister, who him self is answerable to the king; the king is now the head of the counselor of the magistrates that control judiciary, all verdicts are given under the name of “majesty le Roi”, the king can also dissolve the parliament if he wishes.

When it comes to the method of drafting the constitution, it is simply anti-democratic , but yet constitutional, according to article 103 of the previous constitution. Mr Minnouni who was appointed by the king, had his formula ready to go, however he did consult with the political parties, but without presenting a hard copy of the constitution draft. So imagine two groups discussing the future of a nation without any sort of reference to a written draft. Apparently, Mr Minnouni was afraid that if the text liked to general public and may raise controversy. So the political parties made their assessment based purely on oral discussions.

Contrary to what many people think, the king did not give up power, he actually gained more power, and he solidified his legitimacy by reinforcing his role in the constitution. Don’t take my words for it, read180 articles of the official constitution, look at some articles listed below. The proposed constitution, full of jargon and dusts, is more malicious than the previous one from 1996:

The king still controls the judiciary, he preside over the Supreme Council for the judiciary (Article 56, 2011), the very same body who appoints the Judges with Dahir (article 57, 2011), furthermore, Judges will continue to read the verdicts under the name of the king.

The king remains the head of the state:
The king appoints the prime minister of the political party that made the election of the House of Representatives (Article 47, 2011). King also presides over the Council of Ministers (Article 48, 2011).

The parliament
The monarch removed the impunity to those in the parliament who may criticized the religion or the monarchy (Article 64, 2011).The King has the right to call upon the two houses of the parliament to rectify any law he does not agree with (Article 95, 2011). The king can dissolve the parliament (Article 96, 2011).

What next?
The government is going forward with the referendum, knowing that 10 days will be largely insufficient to educate the Moroccan voters, composed of approximately 65% of illiterates. And because we, ”the democrats’ are up against the best local brand in the Moroccan politics “M6 Brand”, we are certainly going to fail, and fail miserably. However the protests will continue on the streets, maybe with a better structure, unified and clear massages calling for a real parliamentary monarchy.

Article 47
The king appoints the prime minister of the political party that made the election of the House of Representatives , and on the basis of the results. And appoint members of the government proposal of the President. The king, on his own initiative, after consulting the Prime Minister, to exempt one or more members of the government of their duties. The Prime Minister may request exemption from the king or more members, members of the government. The Prime Minister may request exemption from the king or more members, members of the government, upon their resignation, individual or collective. Resulting from the resignation of Prime Minister relieve the government as a whole. Government continues ended tasks, the
ongoing conduct of business until a new government.

King presides over the Council of Ministers, which consists of the Prime Minister and Cabinet. The Ministerial Council held on the initiative of the king, or at the request of the Prime Minister. The King may delegate to the Prime Minister, on a specific agenda, the presidency of the cabinet.

King presides over the Supreme Council for the judiciary.

King Dahir approve the appointment of judges by the Supreme Council of the Judiciary

Article 64
No member of the parliament shall be subject to investigation, search, arrest, or trial, on the base of his opinion or his vote during his duties, except if the opinion was expressed argues in the monarchy, Islam, or containing impair the respect due to the king

Article 95
The King has the right to call upon both Houses of Parliament to issue a new reading of each new draft or proposed law. Requests for the new reading can not be subject to rejection

Article 96
The king, after consulting the President of the Constitutional Court and tell the Prime Minister and Chairman of the Board of Representatives , and Chairman of the Board of Advisors, to solve by royal of one of the two chambers together or one of them. The solution is guided by the king after a speech to the nation
0 #2 ThanksFrankie 2011-06-19 02:15
Thanks Zouhair, I have not seen any changes in the new constitution myself......... ....Something that am afraid of is that the resistant from the king being on top of everything when people are desparate in acheiving a new constitution based upon law, seems to me like the king does not get it at all..........wh en you are under a lot of pressure and there is no hope in going forward, living with degnity, the youth might turn into some group like AL Qaeda to ascheive their dreams. I have a feeling that Morocco would be one time a terrorist state if no changse has been made..........r ead article 65: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..You think Is this a democraty!!!!!! !!!!!!!! when many good citizens are behind the bar suffering for expressing their opinions.
0 #3 COMMENT_TITLE_R E Morocco's New Constitution and Its Cosmetic ChangesMorcelli 2011-06-19 08:14
Zouhair, Thank you for taking time to write and explain.
Moroccans in nature do not like to take chances, they think " well, this a is good step and it is better than nothing, look at other countries, they are killing their own people. We do not want to be like them" the problem with this thinking is that those were our parents and grand parents who used to say such a thing, Morocco at the time had 10 millions inhabitants, no Facebook, no twitter, no Google, an no YouTube and their biggest problem was to kick the French out which they did.
This king unfortunately got too comfortable and never saw that the change that is happening because he was too busing promoting El himma and mansouri and Fassi fihris. He never thought that bunch of kids with a Facebook account will turn his life into a living hell.
Now he is scrambling to mock up his father's constitution to make it look like he is reforming while at the same time jailing Mr Nini for speaking his mind. He should at least skip jailing this reported to make it look that his "efforts" are genuine, not he chose not to do that, because he is too proud and too stiff. Action like these will not go unnoticed, he will regret it just like he regretted taking over leila on the eve of his wedding, it turned out that all Moroccans were embarrassed when Aznar arrested the poor gendarmes that were camping there and later kicked them out in front of the entire world to see.
I am ok with him keeping the military to give bouteflika a heart attack and i would even call him amir al mouminine, I don't care, I can call him Mr God if he wants to, BUT, he needs to give up everything else. Let us do it ourselves, We are VERY tired of himmas and fassi fihris, we are sick and tired of these people these heartless thieves.

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