Question

Explain the meaning of each of the concepts of checks and balances as well as separation of powers in the Moroccan government

Answer 1

Moroccan political and constitutional context represents an interesting situation in the Middle East: a reigning monarchy that, despite having been in power for more than three centuries, has nevertheless evolved in recent years. In the context of highly discredited and politically weak Moroccan political parties and labour unions, on 20 February 2011 approximately 150,000–200,000 Moroccans in 53 cities and towns across the country marched in a call for greater democracy and change.

This development was joined by a scope of political gatherings, including a mixed bag of various ideological positions joined uniquely by their resistance to dictator rule in the entirety of its appearances. While the ruler recognized the requirement for a social contract, and later protected change, the whole sacred change process was driven by the lord's plan. The imperial commission for established changes met delegates from various ideological groups and common society associations, however most of ideological groups neglected to connect by and large in any noteworthy discussions about key articles of the protected content.

In the end, the constitution was ‘validated’ by the royal cabinet before the referendum, and most political parties, despite their lack of substantive input, supported the text when it was put to referendum and called on their members to vote ‘yes. Under such political conditions, the referendum on 1 July 2011 was akin to a renewal of the traditional act of allegiance between the sultan and his subjects. The new constitutional text was enacted on 29 July 2011.

Title 13 of the constitution gives the initiative of constitutional revision to the king, to the head of government and to both houses of parliament (article 172). In the first case the text of the constitution speaks of a ‘project’ and in the second and third cases it refers to a ‘proposition for revision’. Parliamentary proposals may come from one or more members of the House of Representatives or the House of Councilors.

Proposals initiated by the head of government are debated in the Council of Government and then submitted to the Council of Ministers. The king is not obligated to respond to them. The projects and proposals are subject to mandatory referendum by dahir, and do not need to be countersigned by the head of government.

The review is final after approval by referendum (article 174, paragraph 2). The king may, after consultation with the head of the Constitutional Court, submit to parliament (by dahir) a project for the revision of certain provisions of the constitution (article 174, paragraph 3). After being called by the king in a joint session, the parliament has to approve revisions by a two-thirds majority. The Constitutional Court checks the regularity of the revision procedure and announces the results.

There are clear limits to the exercise of power for constitutional revisions. We can distinguish between formal limits and material limits. In formal terms, there are circumstances in which constitutional revisions may not take place. If the king is still a minor, the Regency Council cannot revise the constitution. In addition, when a new monarch comes to the throne there is nothing to prevent revisions (article 43). As for the use of article 59 and the ban on revisions during a ‘state of exception’, the text contains no provision related to this subject.

The defenders of the new constitution insist that it is designed to gradually introduce the principle of checks and balances in the Moroccan political system. As far as the executive branch of government is concerned, the new constitution states in article 47 that the ‘head of government’, which has replaced the position of ‘prime minister’, will be appointed from the party that has won the elections, thus implicitly affirming the principle of universal suffrage. At least in the constitutional text, the ‘head of government’ is supposed to have authority over cabinet members (including the power to dismiss them) and be able to coordinate government action, appoint high-ranking officials and supervise public services. According to the new constitution, the head of government can dissolve the House of Representatives after consultation with the king.

The prime minister will serve as the head of the executive branch and is fully responsible for the government, the civil service and the implementation of the government’s agenda.

In the current constitution, the prime minister is responsible only for coordinating activities among the ministers of government. With the prime minister selected from the political party that enjoys a majority in parliament, parties will need to develop their economic and social platforms.

The revisions will change the process of naming the prime minister, who under the current constitution is appointed by the king regardless of election results.

The legislative domain is explicitly restricted in the current constitution. Any legal issue not explicitly mentioned as being part of the domain of law belongs to the regulatory field, and can be handled by governmental decrees.

The legislative process grants dominance to the executive branch over parliament. The government controls the agenda of parliament and gives priority to bills it submits to parliament over those initiated by members of parliament. Finally, the government can legislate between regular parliamentary sessions. As such, the constitution has allowed the parliament to delegate its legislative power to the government.

Morocco’s constitution sets out the principle of judicial independence. In practice, however, the judiciary is subject to executive influence.

The king serves as chairman of the Judiciary Supreme Council that is mandated to manage judges’ careers (nomination, promotion, mobility and disciplinary sanctions). In addition, the Ministry of Justice sets the agenda for the council’s quarterly meetings and submits the council’s recommendations to the king, who issues final decisions.

The revisions will empower regional councils that are directly elected by voters instead of regional representatives of the executive (mainly the Ministry of Interior).

The new constitution is expected to favor equal access by men and women to elected office. It would likely include mechanisms to promote women’s representation in parliament and on local councils, and to guarantee a certain number of seats for women in parliament.

The preamble of the constitution is expected to explicitly affirm Morocco’s commitment to human rights as universally recognized. Morocco’s Amazigh identity will also be mentioned in the constitution and the Amazigh language will be made an official national language in addition to Arabic.

The planned changes will not lead to a parliamentary constitution in Morocco, but they will introduce the separation of powers and reduce the king’s all-powerful role in government. As a result, political parties and civil society should remain vigilant about the changes and seize the opportunity of regional upheaval to push for additional reforms