Moroccan New Constitution analysed

I.  Next generation Constitution:

1.            Beyond the organization and distribution of powers (State institutions Constitution), there is a confirmation of a true citizens’ Charter (Constitution for the Citizens). It provides for a State organization system based on advanced regionalization (local and regional dimension in the Constitution) and for a culture of responsibility and accountability (good governance Constitution) ;

2.            Coherence and modernity both in terms of form (180 - instead of 108 previously - Articles well-articulated under 14 Chapters) and in terms of modern wording of the Preamble, which is an integral part of the Constitution and of constitutional provisions (gender-sensitive approach).

II. Democratic, inclusive and transparent approach (Constitution drawn up by Moroccans, for all Moroccans):

3.            Address of 9 March, 2011: democratic frame of reference set out by His Majesty for a sweeping constitutional revision

4.            Advisory Committee for the revision of the Constitution: Hearing sessions and reception of the memoranda of all stakeholders (political parties, trade unions, civil society groups and youth representatives) and preparation of an innovative draft Constitution;

5.            Follow-up and consultation through a political mechanism: effective participation of all political parties and trade unions in preparing the draft Constitution, from beginning to end.

III. Confirming the fundamental constituents of the diversified, open Moroccan identity:

6.            A sovereign Moslem State, committed to the ideals of openness, moderation, tolerance and dialogue to foster mutual understanding among all civilizations;

7.            A Nation whose unity is based on the fully endorsed diversity of its constituents: Arabic, Amazigh, Hassani, Sub-Saharan, African, Andalusian, Jewish and Mediterranean components ;

IV. A revisited linguistic pact grounded in pluralism and open attitude:

8.            The official status of the Arabic language has been enhanced; official status granted to the Amazigh language with a gradual integration process (schools and main public sectors) ;

9.            Active, harmonious linguistic and cultural policy geared towards the protection and promotion of national and official languages, and encouraging the learning of foreign languages which foster openness and permit access to the knowledge-based society ;

10.        Creation of a national Council for the promotion of languages and the Moroccan culture.

V. A full-fledged Charter of fundamental rights and freedoms rooted in the universal frame of reference for human rights:

11.    Primacy of the international conventions duly ratified by the Kingdom over domestic laws;

12.    Prohibiting all forms of discrimination on the basis of sex, colour, creed, culture, social or regional background, language or disability;

13.    Strengthening a full-fledged architecture of rights and freedoms worthy of advanced democratic societies: right to life ; right to personal security and that of property ; prohibition of torture and of all serious, systematic violations of human rights; presumption of innocence and right to fair trial ; freedom of thought, of opinion and of expression ; freedom of the press  and right to access information ; freedom of assembly, peaceful demonstration and association; freedom to join trade unions and political parties.

14.    Expanding economic, social and environmental rights (to which the State and all public authorities will be contributing): health; social protection; modern, accessible quality education; decent housing; a healthy environment and sustainable development.

VI. Enhancing gender equality through the confirmation of parity:

15.        Gender equality in civic, political, economic, social, cultural and environmental rights;

1. Setting up of an Authority for the achievement of parity and the fight against all forms of discrimination.

16.        Use legislation to implement affirmative action measures for the benefit of women to encourage access to elected office;

VII. National sovereignty and supremacy of the Constitution:

18.        Sovereignty lies with the nation which exercises it by referendum and through its representatives;

19.        Election of the representatives of the people to elected national, local and regional institutions, by direct universal suffrage, through free, fair and transparent elections;

20.        Supremacy of the Constitution over all powers, without exception ; any litigant can challenge the constitutionality of a law (this is a daring, pioneering measure which makes it possible for the citizens to realize that the Constitution is of their own making);

VIII. Separation of powers under a constitutional, democratic, parliamentary and social monarchy:

21.        Citizen-based monarchy which upholds the nation’s basic policy objectives, fulfilling sovereignty and ultimate arbitration functions:

·         Deletion of all references to the sacredness of the person of the King, replacing it with the more modern notion of inviolability and the respect due to the King ;

·         Detailed, explicit differentiation between the powers of the King as Commander of the Faithful (in charge of the religious domain) and as Head of State, symbol of the nation’s unity and territorial integrity, who performs arbitration functions and who guarantees the nation’s democratic choices and safeguards the country’s best interests;

22.        A government emanating from an elected Parliament, and placed under the authority of a Head of Government who exercises full executive power :

·         Democratic procedure for the appointment of the Head of Government, who is appointed by the King from among the party which wins the general elections and is endorsed by the absolute majority of the House of Representatives, to which the Head of Government shall be answerable ;

·         A true Head of Government and not just a foremost minister ;  a true chief and leader of the cabinet, who will manage the administration, exercise real executive power and enjoy extensive prerogatives in terms of appointing senior civil servants ;

·         The Governing Council has become the forum for the definition and implementation of state policy ;

23.        A strong Parliament with enhanced powers, which will exercise the legislative power, enact laws, control the Government and assess public policies:

·         Two-chamber system which confirms the supremacy of the House of Representatives which can on its own challenge the Government; the second Chamber now has a reduced membership as well as a local and regional mission; trade unions and professional organizations are also represented in the second Chamber ;

·         Legal field increased from 30 subjects to 60, including 26 organic laws, particularly the guarantees relating to rights and freedoms, amnesty, the division into constituencies and all aspects of civil, economic and social life ;

·         Effective parliamentary control mechanisms for which the required quorums have been made more flexible: motion of censure, committees of inquiry, referral to the Constitutional Court, convening of a special session.

24.        Flexible balance between the legislative and the executive branches : the Government is now answerable only to the House of Representatives ; the latter can be dissolved not only by the King, by virtue of his prerogatives regarding arbitration and the guarantee of the proper functioning of institutions, but also by the Head of Government, through a decree;

IX. The Judiciary becomes an independent power, ensuring genuine protection of rights and guaranteeing compliance with the law:

25.        Basic, constitutionalised guarantees of independence for judges: Status of judges reinforced by an organic law, prohibition of interference in the work of judges, or any kind of pressure;

26.        The cornerstone of this branch is now the Supreme Council for Judicial Power: it is chaired by the King, who ensures, in particular, that the guarantees granted judges are   enforced; the new Constitution introduces three basic features

·         Vice-Presidency is now entrusted to the President of the Court of Cassation, instead of the Minister of Justice; there is also enhanced representation of women judges;

·         Membership open to well-known figures in the area of championing the independence of the Judiciary;

·         Beyond judges’ career management, the extended powers cover control and assessment of the judiciary and of the administration of justice;

27.        A true constitutional Court, which serves as the watchdog of constitutional supremacy:  half its members are now elected by both Houses of Parliament; its powers have been extended to checking the constitutionality of conventions; referral open to the public.

X. Enhanced constitutional status of the stakeholders involved in democratic life and in the citizen-based participatory democracy:

28.        Confirming the key role of political parties in democratic life ; contribute to the exercise of the right to vote, participate in the exercise of power, based on pluralism and democratic alternation in the exercise of political power;  functioning methods that are consistent with democratic principles, no dissolution or suspension without a court ruling.

29.        Recognition of a genuine status for the parliamentary opposition: in addition to the relaxed provisions mentioned under item 8, chairmanship, of right, of the legislation commission, equitable access to state media, entitlement to public funding, actual participation in the control of Government and in parliamentary committees of inquiry;

30.        Strengthening the role of trade unions as levers of social democracy, and as political players by maintaining their presence in the second Chamber;

31.        Recognizing the status and role of civil society and NGOs as stakeholders in participatory democracy, at national, local and community levels ;

32.        Confirming the status and role of the media in promoting democracy as well as citizens’ rights and freedoms:

·         Guaranteeing press freedom and the right to information;

·         Democratic regulatory measures for, and organization of, the press and audiovisual communication sectors, including audio-visual means (the HACA enshrined in the Constitution).

33.        Creating new forums for participatory democracy: involving education, the family and children, youth and civic associations.

 XI. Regional and local democracy, and advanced regionalisation:

34.        Enshrining advanced regionalisation in the Constitution : as well as redistributing the powers between constitutional institutions, the new Constitution paves the way for a country with united regions, based on a democratic reorganization of powers between the State and the regions;

35.        Confirmation of the basic principles underlying the Moroccan regionalization system:

·         National, local and regional unity, balance, solidarity and democratic practices;

·         Election of regional councils by direct suffrage, right of petition;

·         Principles of self-management and subsidiarity ;

·         Transferring the executive power of these councils to their presidents;

·         The regional Council will serve as a college for election to the House of Councillors.

36.        Constitutional basis for a new local and regional setup in the Kingdom, conducive to :

·         Substantial devolution of powers from the central authority to the regions;

·         Several forms of partnership and contractual relationships between the State and the regions, and between local governments;

·         Development and devolution of central powers.

37.        Creation of a regional equalization fund and of a fund for the social overhauling of regions.

XII. Fundamental principles in the area of good governance, integrity in public institutions and economic rule of law:

38.        Relationship between office-holding, public office and accountability;

39.        Constitutionalising the principle of the balance of public finances;

40.        Confirming the basic principles of social market economy and economic rule of law:

·         The right to property, free enterprise and free competition

·         The prohibition of conflicts of interest, of insider trading and of practices that are contrary to the principles of free and fair competition in economic relations;

41.        Strong measures to promote transparency and the fight against corruption: Sanctioning all forms of wrongdoing in the management of public funds, corruption and influence peddling.

42.        Strict prohibition of party-switching by parliamentarians, both with respect to parties and parliamentary groups (this will contribute to the rehabilitation of politics and give meaning to voting); 

43.        Restricting the benefit from immunity (limited to the expression of opinion and to voting  in Parliament ; equality of all before the law as a result of cancelling the High Court, previously meant as a court for ministers);

44.        Good governance in the area of security: Setting up a Supreme Strategic Security Council as a consultative institution which deals with the country’s internal and external security strategies, as well as with the management of crisis situations; it also institutionalizes standards for good security governance.

45.        Enshrining in the Constitution the Competition Council and the national authority for integrity and for the prevention and fight against corruption,  in addition to other independent institutions for the protection and promotion of human rights, good governance and regulation, especially an independent council for human rights and the Al Wasseet (Ombudsman) institution.