Sources On Arab Judiciaries
United Arab Emirates
Constitutional Provisions On The Judiciary
Structure Of Court System
Personal Status Issues
Appointing/ Assigning/ Evaluation Of Judges
Administration And Relationship With The Ministry Of Justice
Specialized Courts And Their Jurisdictions
Arab Judicial Structures
A Study Presented To The United Nations Development Program
by Nathan J. Brown
The process of political reform in Morocco over the past decade is beginning to make itself felt in the judicial arena. The constitutional and judicial framework provide for some notable overlap between the executive and the judiciary, but strong efforts to professionalize the judiciary have begun to result in a more autonomous body of judges.
- Constitutional provisions for the judiciary
Morocco�s constitution contains general rule-of-law provisions and three chapters devoted specifically to the Constitutional Council, the judiciary more generally, and the High Court of Justice.
THE CONSTITUTIONAL COUNCIL:
Article 78 A Constitutional Council shall be established.
Article 79 The Constitutional Council shall be made up of six members appointed by the king for a nine-year period. Upon consultation with parliamentary groups, six other members shall be appointed for the same period, half of them by the president of the House of Representatives and the other half by the President of the House of Counselors. A third of each category of members shall be renewed every three years. The chairman of the Constitutional Council shall be selected by the king among the members appointed by him. The chairman and the members of the Constitutional Council shall serve for a non renewable term of office.
Article 80 An organic law shall govern the organization and work of the Constitutional Council as well as the procedure it shall adopt, particularly with respect to deadlines set for referred disputes. Likewise, this organic law shall determine the functions which may not be compatible with that of Council member, the conditions of the first two renewals for a three -year term, as well as the procedure for replacing inactive members, either as a result of resignation or death during their term of office.
Article 81 The Constitutional Council shall perform the functions assigned by the articles of the constitution or the provisions of the organic laws. It shall furthermore decide on the validity of the election of the members of Parliament and that of referendum operations. Organic laws (before promulgation) and the rules of procedure of each House (before implementation) shall be submitted to the Constitutional Council to examine their consistency with the constitution. Before promulgation, laws may, for the same reason, be referred to the Constitutional Council by the king, the prime minister, the president of the House of Representatives, the president of the House of Counselors or one-fourth of the members making up one House or the other. The Constitutional Council shall have one month to decide upon the special instances stated in the preceding two paragraphs. However, in case of emergency, the deadline may be reduced to eight days if so requested by the government. Regarding these instances, referring law to the Constitutional Council shall entail the suspension of the deadline of the promulgation thereof. No unconstitutional provision shall be promulgated or implemented. Decisions of the Constitutional Council shall, in no way, be put into question. They shall, furthermore, be binding upon all public authorities, administrative and judicial sectors.
Article 82 The Judiciary shall be independent from the legislative and executive branches.
Article 83 Sentences shall be passed and executed in the king�s name
Article 84 Upon recommendations made by the Supreme Council of the Judiciary, judges shall be appointed by royal decrees.
Article 85 Judges on the bench shall be irremovable.
Article 86 The Supreme Council of the Judiciary shall be presided over by the king. It shall further consist of (a) the minister of justice as vice-president; (b) the first president of the Supreme Court; (c)the prosecutor-general in the Supreme Court; (d) the president of the First Chamber the Supreme Court; (e) two representatives elected among magistrates of the Court of Appeal; and (f) four representatives elected among magistrates of first degree courts.
Article 87 The Supreme Council of the Judiciary shall ensure the implementation of the guarantees granted magistrates regarding their promotion and discipline.
THE HIGH COURT OF JUSIICE
Article 88 Members of the government shall be criminally responsible for crimes and felonies they may commit while exercising their functions.
Article 89 They may be indicted by the two Houses of Parliament and referred to the High Court of Justice for trial.
Article 90 The proposed draft for indictment must be signed by at least a quarter of the members of the House in which it was tabled first. It shall be examined successively by the two Houses and shall be approved only when an identical vote is cast by each House by secret ballot and a two-thirds majority of its members with the exception of those members called upon to take part in conducting the prosecution and the investigation process and issuing the verdict.
Article 91 The High Court of Justice shall consist of equal numbers of members elected from the House of Representatives and the House of Counselors. Its President shall be appointed by royal decree.
Article 92 An organic law shall determine the number of the High Court members, the method of their election and the Rules of Procedure to be adopted.
- Structure of court system
There are three levels of courts of general jurisdiction: communal and district courts [jama�at wa-muqati�at] and primary courts [ibtida�iyya] that hear cases first, appeals courts, and the Supreme Court [al-majlis al-a�la]. These courts are divided into chambers with various specializations, such as personal status, civil, criminal, and administrative.
- Personal status issues
Personal status cases are heard by designated chambers of the regular court system. While the personal status courts are thus integrated with the rest of the court system, judges in the courts have special training in the shari�a.
- Prosecution system
Morocco uses a niyaba system in which prosecution is a quasi-judicial function. However, in Morocco, the public prosecution remains part of the executive branch.
- Appointing/assigning/evaluation of judges
The Moroccan constitution provides for the establishment of a Supreme Judicial Council as well as its membership. The Council is headed by the king; the minister of justice also serves. Such significant participation by the executive is not common in the Arab world, though it is not unknown. The remainder of the Council is exclusively judicial in composition.
Judicial supervision and inspection is a generally the responsibility of the Ministry of Justice, although judicial personnel are used extensively in the task. Each level of courts carries some responsibility as well and sanctions are meted out by the Supreme Judicial Council.
- Administration and Relationship with Ministry of Justice
The Ministry of Justice oversees administrative matters connected with the courts, including budgetary issues. There have been some complaints in recent years that salaries are low and the Ministry of Justice has worked to improve the situation in order to combat opportunities for corruption.
The Moroccan constitution clearly endorses the principle of separation of powers, but the Ministry of Justice still plays a significant role in judicial affairs.
A new reform era for the justice sector began with the appointment of a respected jurist and human-rights figure as minister of justice in 1997. Since that time, efforts have been made to strengthen the autonomy of the judiciary, combat corruption, and provide the judiciary with the necessary administrative and budgetary resources.
- Specialized courts
Morocco�s judicial structure is fairly unified. For instance, personal status cases and administrative cases fall under the jurisdiction of the courts of general jurisdiction, though each has special chambers.
In addition to the courts of general jurisdiction, however, a few specialized courts exist. First, military courts can try specific cases referred by the government. Second, a High Court of Justice can be established by the parliament to try ministers for criminal offenses. Third, an audit court system exists (with a central court and regional courts), entrusted by the constitution to oversee implementation of the budget. Finally, Morocco�s constitution establishes a constitutional council. In general, constitutional councils differ from constitutional courts in that their composition is more political and standing to bring cases is limited to official actors. Morocco�s constitutional council fits this pattern.
- Judicial education
Morocco has established the National Institute of Judicial Studies which has a mandatory three-year training period for new judges. The Institute is working to expand its offerings for continuing education for judicial personnel. All judges trained in recent years are graduates of the National Institute for Judicial Studies, where they undergo 3 years of study heavily focused on human rights and the rule of law.