Constitutional Court: When Moroccans Embrace Institutional Culture

After all the controversy they were among the main instigators of, the opposition parties have decided to fully play their role.

The parliamentary groups—and grouping—of the four formations in the first Chamber, the USFP, the MP, the PPS, and the PJD, have decided quite simply to refer the matter to the Constitutional Court, following the adoption by both Chambers of the draft law relating to the organization of the National Press Council.

We certainly won’t go back over in detail the sticking points between the majority and the opposition regarding this text, which are limited to two articles out of the 98 making up the draft law, but the exercise itself denotes a beginning of the integration of institutional culture by our political class.

Nothing simpler, after all, provided the prerequisites are met. Together, with their 96 deputies, these formations have signed a referral letter addressed to the Court, whereas only 79 signatures were needed for that—and the deed is done.

This is the second time, in a few months, that the constitutional jurisdiction has been referred to in order to rule on the conformity with the supreme Law of a text that sparked controversy.

The president of the first Chamber had, in fact, transmitted—although nothing obliged him to do so—a draft law reforming the Code of Civil Procedure, with the same objective, to the Court.

Usually, apart from organic laws, whose review is automatic after their adoption, the Court is rarely, so to speak almost never, called upon to rule on the conformity of an ordinary law to the Constitution.

This denotes an awareness of the role of this jurisdiction and of the power of political actors to appeal to it according to the provisions provided for by the Constitution, and above all a sign that the methods to which political formations and the actors concerned by these texts in particular resorted to challenge them are now a thing of the past.

In these two specific cases, the calls for strikes and other forms of protest and pressure used during almost the entire adoption process of these two texts did not prevent their final vote.

Be that as it may, it is perhaps the prelude to an even broader role that the Court is set to play in citizens’ lives in the very near future. Beyond this aspect of conformity of freshly adopted legal texts, the Court is set to initiate a vast overhaul of the legal arsenal, especially laws dating from before 2012.

The Court is preparing to receive another type of appeal. And this time, it is the ordinary citizen who will seek its opinion within the framework of the constitutional provision relating to the exception for unconstitutionality of a law. This is one of the major advances brought by the 2011 Constitution in terms of guaranteeing citizens’ rights.

Awaited for nearly 15 years, the legislative framework enabling ordinary litigants to challenge the constitutionality of a law before the Court was adopted by a majority in the first Chamber on Tuesday, January 13.

Smooth Revision

A first version had been invalidated by the same Court, which justified putting it back into the legislative circuit. And even after its final adoption, which should not pose a problem, given that it involves integrating the Court’s observations, this text should only be applicable in everyday life two years after its promulgation, meaning its vote by Parliament and its publication in the Official Bulletin.

This period, it is specified, is deemed necessary to allow for the establishment of the required institutional and procedural mechanisms with a view to the effective implementation of this major constitutional project.

This text, it should be recalled once again, grants the Constitutional Court the possibility to rule on an exception of unconstitutionality raised by one of the parties to a dispute. And this, “when that party considers that a law infringes upon a right or a freedom guaranteed by the Constitution.”

This mechanism, commented the Minister of Justice, Abdellatif Ouahbi, strengthens the role of the judiciary as a guarantor of rights and freedoms. It “opens for litigants a new avenue to challenge legislative provisions likely to infringe upon the rights that are constitutionally guaranteed to them.”

Pending this major turning point in our judicial system, the Court will undoubtedly have much to do in the coming months. It will indeed be called upon to rule on electoral appeals on the occasion of the legislative elections in September of this year. An exercise to which political actors have already become accustomed for years.

It is moreover within this framework that the amendment of the organic law relating precisely to the Court, also under examination, very recently in Parliament, falls.

Among other provisions of this organic draft law No. 36.24, adopted on December 22 in the House of Representatives, are certain aspects concerning the publication of the Court’s decisions as well as the legal consequences stemming from a declaration of unconstitutionality.

This gives an idea of the scale of the work that the implementation of this Article 133, revolutionary in everyone’s eyes, will entail at the level of the Court’s instances.

This amounts, in a way, and over time, to an upgrading of the entire legal arsenal of the Kingdom, mainly laws adopted before 1992, the date when the principle of prior control of the constitutionality of certain laws was established.

Obviously, not having legislative competence, it is, ultimately, up to Parliament to give substance to this “overhaul” of the judicial corpus.

It remains nonetheless, as the Minister of Justice moreover emphasized on the occasion of presenting this text before the deputies, that this amendment “will contribute to strengthening the effectiveness of the functioning of the Constitutional Court and to guaranteeing the full exercise of its constitutional competencies, thereby consolidating the principles of democracy, the rule of law, and the institutions enshrined by the Constitution.”

To measure the extent of this unprecedented power, with which citizens are now endowed, it is now possible, through an individual court case, to trigger the amendment or outright the repeal and disappearance of a law deemed to violate fundamental rights.

A decisive step towards citizen control of legislation, this time in a direct manner and not only through their representatives within the legislative institution.

An Organized Institution

“The Constitutional Court has disavowed this or that minister,” “the Court has slapped this or that official”… expressions most often misused and which give a nonsensical idea of the work of this jurisdiction.

It must first be pointed out that it is an institution whose twelve members—some of whom are moreover reaching the end of their term—constitute, so to speak, only the visible part.

The institution, which operates with an annual budget of a little over 50 million dirhams (50,815,000 DH to be exact for the 2026 budget), comprises, in addition to a studies unit made up of magistrates highly trained in various fields, several administrative and other services.

It is invested with a delicate function framed by three fundamental considerations: respect for the spirit of the Constitution and its purposes, preservation of the balance between powers, and the prohibition of substituting itself for the legislator. It also has the vocation to protect rights and freedoms against any unjustified restrictive or extensive interpretation.