Caitlin Dearing Scott
December 1, 2017
When Morocco adopted a new Constitution in July 2011, consolidating more than a decade of reform, the Kingdom made a promise to its citizens to establish a constitutional monarchy with separation of powers. Though much of the text – and a large part of the reform work since then – focused on giving increased powers to the government and the Parliament, the Constitution also enshrined the independence of the judiciary and called for a number of important reforms to ensure it. In the six years that have passed since then, the country has made some progress toward this goal, but comprehensive judicial reform has not yet occurred and the debate over future reform is ongoing.
In an article for the Carnegie Endowment for International Peace’s Sada Journal, “Morocco’s Pursuit of Judicial Independence,” Abdeallatif Chentouf, head of the Moroccan Judges Club, takes the case of one reform – the transfer of the Office of the Public Prosecutor (OPP) from the Ministry of Justice (MoJ) to the Court of Cassation (CoS) – to elucidate this debate and to demonstrate how far reform has come and how far it needs to go.
The transfer of the OPP (which is part of the judiciary unlike in other countries) from the authority of the MoJ was meant to give it increased independence, “safeguard[ing] it from the political sway wielded by the Ministry of Justice,” and to hold it more accountable. As Chenouf points out, “Under the new law, the High Judicial Council—which consists of elected judges, senior judges from other bodies, as well as five independent members directly appointed by the king—can and likely will hold members of the public prosecution accountable for their professional mistakes, as stipulated by the Statute for Judges.”
For both of these reasons, Chentouf believes “This move is more than just a superficial reshuffling, but rather signals the end of an era of tight executive oversight of the public prosecution, which it has controlled since 1956” and therefore a positive sign of a “broader shift toward the judiciary’s independence from the executive.”
The transfer has nevertheless drawn criticism – largely from political parties, but surprisingly from the Morocco Bar Association as well. Opponents lament that the OPP is no longer subject to parliamentary oversight – “Under the new law, the attorney-general is a judicial figure directly appointed by the king, and as such cannot be summoned by parliament for questioning, as this would be contrary to judicial independence.”
There are also concerns about the pace of implementation. The debate over the transfer of the OPP started back in 2011, culminated in a March 2016 law authorizing the transfer, and was only finalized with last month’s announcement of the official transfer – taking over a year “because it was dependent on the inauguration of the High Judicial Council, whose members were not appointed until April 7, 2017.”
These concerns are similar to those raised on other reform issues and they are mutually reinforcing – lengthy, robust debates, while essential in getting stakeholder feedback, only further delay the implementation of key reforms. For now, Morocco’s process, however lengthy, seems to be working and the country is implementing gradual reforms based on consensus from competing interests. The key for the Kingdom continues to be finding the right balance of debate and pace in order to satisfy the demands of the people – and fulfill the promises of the Constitution.