I.  Introduction

During the demonstrations—and, in some cases, even revolutions—that broke out in the Arab world between the end of 2010 and the beginning of 2011, the protesters, largely composed of young people, called for profound constitutional and political reforms. These reforms included constraints on the prerogatives of heads of state, and the strengthening of the independence and powers of parliaments, judiciaries, and constitutional courts. In a nutshell, they hoped to reinforce the separation and balance of powers. This aspiration, however, was only partially achieved, and it was implemented in different ways depending on the country. In Jordan, for example, the 1952 Constitution was amended in 2011. On the one hand, judicial independence was strengthened slightly, the government’s power to issue temporary laws when parliament is not in session was partially limited, and a constitutional court was established for the first time in the country’s history. On the other hand, however, it is significant that Chapter IV, Section I of the constitution—devoted to “The King and His Prerogatives”—was left intact. This means that the monarch continues to hold almost the same powers that he held in the past.¹

In Tunisia, while the new 2014 Constitution undoubtedly possesses many merits, it also has flaws. Thus, for example, it strengthened the independence and the powers of the Constitutional Court by changing the appointment procedure of constitutional justices (as it grants a key role to each branch of government) and by introducing (in addition to ex ante review) concrete constitutional review. Moreover, the new constitution established that no one can be elected president for more than two full terms and that this limit applies regardless of whether the two terms are consecutive or separate. Furthermore, the constitution (p. 496) cannot be amended to increase the number or length of presidential terms. At the same time, however, there are some constitutional provisions concerning the semi-presidential form of government that are cause for concern, notably those referring to the president combining the role of head of state and head of government, which led to a certain degree of uncertainty as to who is the chief of the executive.²

Egypt adopted two constitutions in the span of one year: The first came into force in December 2012, while the second—following President Mursī’s removal from office—was adopted in January 2014. As far as the distribution of powers is concerned, the two texts differ significantly. The 2012 Constitution reduced the prerogatives of the president, while the parliament came out as one of the “winners”. Indeed, the latter was given significant oversight powers and authority in government formation and dismissal processes; parliament was also protected from arbitrary dissolution. On the contrary, the 2014 Constitution “decisively swings the pendulum back in favor of the president”,³ who enjoys, inter alia, very important appointment powers over the prime minister, the ministers of Justice, Interior, and Defense, as well as in the selection of 5% of the parliament’s members. It is also important to stress that the military continues to enjoy a high degree of independence and privilege.

Morocco was the first country involved in the Arab upheavals to adopt a new constitution in July 2011. The document assigned the principle of separation of powers an extraordinary importance, at least from a formal point of view. Indeed, Art. 1 states: “The constitutional system of the Kingdom shall be based on the separation, balance and cooperation of powers […]” Moreover, the new constitution is divided into sections that no longer refer to bodies (parliament, government)—as was the case in the previous constitutions—but instead specifically delineate powers. Thus, Chapter IV is devoted to legislative power, Chapter V to executive power, Chapter VI deals with relations between the branches of power, and as Art. 107 states: “the judicial power shall be independent of the legislative power and the executive power”.

The aim of this chapter is to show if and to what extent the new constitution has introduced real change in the distribution and separation of powers. I focus only on the horizontal separation of powers (i.e., their distribution between the monarchy, the legislature, the executive, and the judiciary), and not on the vertical separation of powers (i.e., their distribution between the central government and the local government, which consists—in the case of Morocco—of regions, prefectures, provinces, and communes).

Accordingly, this chapter proceeds in five steps. First, I analyze the distribution of powers before the adoption of the 2011 Constitution, and I show that the Moroccan constitutional order was characterized by both the principle of the separation of powers and the principle of unity of power. I then discuss the reform of the “old” Art. 19 and the (formal) separation between temporal and spiritual power. Third, I examine the form of government and I argue that Morocco has not turned into a parliamentary monarchy (where the king reigns but does not rule). In the fourth and fifth sections I analyze the legislative and judicial power, respectively (including some references to constitutional justice), and I stress the influential role that the monarch still plays in these branches of government. Finally, I draw concluding remarks.

(p. 497) II.  The Distribution of Powers Before the 2011 Constitution

The concept of the separation of power is not new in Morocco.⁴ Indeed, all three kings who have reigned over the country since its independence have stressed the importance of such a principle. Thus, on November 18, 1955—just a few months before Morocco became independent—Muḥammad V announced to the country his intention to set up “democratic institutions … founded on the principle of the separation of powers, in the framework of a constitutional monarchy”. Similarly, Ḥassan II, on March 3, 1963—three months after the referendum that ratified the 1962 Constitution—pointed out that the new constitution confirmed “without any ambiguity the principle of separation of powers”. Even Muḥammad VI, on October 8, 1999, in his first speech given before parliament, declared, “the separation of powers is the foundation of democracy”.⁵ It comes as no surprise, then, that Muḥammad VI stressed the relevance of this principle in his speech of March 9, 2011, when he announced his decision to complete a “global constitutional reform.”

Notwithstanding these solemn declarations, before the adoption of the 2011 Constitution, the principle of separation of powers had never been implemented in the way it is implemented in Western consolidated democracies.⁶ Indeed, the Moroccan constitutional order used to place above it another principle—that is, the principle of unity of power (unité du pouvoir), which is represented by the monarchy. As pointed out by Abdeltif Menouni, this power, which is “one of the fundamental realities, keystones and cement of the Moroccan constitutional system”, is “unique, originary and oriented”.⁷ It is unique because the king is the only authority to enjoy simultaneous religious, historical, and legal-rational legitimacy. He is above the political parties and electoral competition.

It is an originary power because the constitution is not the source of legitimacy for royal power, but only acknowledges the existence of the monarchical institution and identifies the consequences of the king’s supremacy. Moreover, it is the sovereign who holds the constituent power and who decides the moments and the extent of constitutional reforms.

It is oriented power because the power held by the king is not without limits. For instance, according to Art. 19 of the previous constitutions (which were adopted in 1962, 1970, 1972, 1992, and 1996), the sovereign is in charge of guaranteeing the continuity of the state, the respect for Islam and the constitution, the protection of the rights of citizens, the independence of the nation, and the territorial integrity of the realm.

The Moroccan constitutional order was then characterized by two principles: the principle of the separation of powers—which has its roots in Western liberal thought⁸—and (p. 498) the principle of unity of power—typical of Islamic political tradition and thought.⁹ The leading literature, the case law of the Constitutional Chamber of the Supreme Court and the official royal speeches have acknowledged the existence of both principles within the Moroccan constitutional order, but they have also repeatedly pointed out that the monarchical institution was not involved in the separation of powers. Indeed, the king was above such separation. Thus, according to Abdeltif Menouni:

[…] the Constitution, and especially the practice of the institutions, is crossed by two movements whose nature is different, but which mutually complete and clarify each other. The first affirms the unity of the political power and defines the channels through which it will spread; the second, more restricted, present especially at the level of constitutional sub-system, allows for a separation of the bodies and a collaboration among the political functions, but only […] within significant limits.¹⁰

Asserting that the Constitution has transferred the sovereignty from the King to the Nation is not correct […] What clearly emerges from the Constitution is that the nation has wanted to ascribe to the King a supremacy with respect to the heavy responsibilities that the Constitution, the function of Imam and the Islamic tradition […] have assigned to him. In the light of this supremacy, the King, among his prerogatives, holds the power to control all the gears of the State, without any exception.¹¹

Ḥassan II, in his speeches, most clearly expressed the idea of the king’s noninvolvement in the separation of powers. For example, on May 22, 1977, he specified: “If there is a separation of powers, this would not be at our level, but at a lower level, because the King was asked to supervise and decide the politics of his country, with the help of the executive power represented by his Government, and of the legislative power: the Parliament”.¹² Similarly, on October 9, 1987, he declared: “I have said and I repeat that for me, humble servant of God and first servant of Morocco, there is not a separation of powers. I am the father of everyone, of the legislator and of the executor, of the young and of the old man, of the strong and of the weak […].”¹³

III.  The Reform of the “Old” Art. 19: the End of the “Confusion” Between Temporal Power and Spiritual Power?

This article was peculiar in that it assigned to the king both spiritual and temporal powers, thus creating “confusion” between the two. The sovereign then held “both the spiritual legitimacy—which refers to religious affairs (dīn)—and the temporal legitimacy—which refers to the earthly affairs (dunyā)”.¹⁶

As far as religious legitimacy is concerned, it is important to stress that the Moroccan sovereign, as a member of the 350-year-old ʿAlawī dynasty, claims direct descent from the Prophet Muḥammad, and this is one of the main reasons why he continues to be very popular among the population. Bernard Lugan has emphasized that it is on the basis of their descent from the Prophet that the ʿAlawītes:

[…] accumulate all the functions of the slight and complex Muslim hierarchy. Thus, the Moroccan Sovereign is at the same time Malik (King), Chérif (since he is a descendant of the Prophet), Sultan (since he holds the authority), Emir (because he is the Commander in Chief), Imam (chief of the national religious community), Khalife (since he is at the same time lieutenant and sword of God) and finally Amir al-Mouminine (Commander of the Faithful).¹⁷

(p. 500) As stated above, the 2011 Constitution “split” Art. 19 of the previous constitutions into two provisions: Arts. 41 and 42. The intention was to separate spiritual power from temporal power in order to remedy the “confusion” of powers.

(p. 501) Furthermore, it is emblematic that on July 31, 2011, just one month after the referendum that ratified the new constitution, government officials and dignitaries were once again lined up to bow to the monarch in the classic ritual of the bayʿah [allegiance], which is the annual ceremony where nobles, politicians, tribe chiefs, Oulemas (ʿUlamāʾ), and dignitaries from across Morocco pledge allegiance to the king. According to many, this ritual “has turned out to be one of the most symbolic acts of obedience and servitude”.²³

Another element that moderates the extent of the division of the “old” Art. 19 refers to the legislative power of the sovereign. One of the most relevant consequences resulting from this division consists of the fact that the legislative power reserved to the king under the terms of the “old” Art. 19 of the previous constitution no longer exists. In fact, in his capacity as Amīr al-Muʾminīn, the king had a monopoly on legislation pertaining to religious matters, family law, and the protection of rights and freedoms. However, as stressed by David Melloni, the division of Art. 19 does not mean that it will be impossible for the sovereign to legislate, but rather heralds the start of legislative power-sharing with parliament, in which the new constitution vests, inter alia, competence over family status and marital status, citizenship and the status of foreigners, and fundamental rights and freedoms (Art. 71).²⁴ However, in actual fact, Muḥammad VI had consented to the parliament’s intervention in these fields even in the past: In fact, both the new Code of Personal Status from 2004 and the new Nationality Code from 2006 were adopted by the parliament, in spite of the fact that they related to areas in which, in his capacity as Amīr al-Muʾminīn, the king had always held sole competence.²⁵

In the light of these facts, it emerges that notwithstanding the reform of Art. 19, the distinction between spiritual and temporal powers is far from clear, at least in practical terms. Indeed, despite the changes, the Moroccan king still wears two hats: He continues to be both a temporal and a spiritual chief.

IV.  Separation of Powers and the Form of Government: Toward the Establishment of a Parliamentary Monarchy?

(p. 506) V.  The Legislative Power: The Parliament, the Government, and a (Lame) King-Legislator

Historically, the Moroccan parliament has been a weak and not very effective body. The 2011 drafters tried to remedy to this situation by strengthening its powers and functions.

According to the new constitution, the parliament is composed of two chambers: the House of Representatives, whose members are elected by direct universal suffrage (Art. 62), and the House of Councilors, which is elected by indirect universal suffrage, and whose members are representatives of local authorities, and professional and employee organizations (Art. 63). The bicameralism is therefore confirmed, but now the House of Representatives clearly prevails over the House of Councilors, both regarding its legislative power and its control over the government. Indeed, it is the House of Representatives that gives its “initial” confidence to the government (Art. 88) and can vote a motion of no confidence (Arts. 103 and 105). Moreover, draft bills are deposited in priority with the Bureau of the Chamber of Representatives, including the Finance Act (Arts. 75 and 78). Only the draft bills related to local government, regional development and social affairs are deposited in priority with the Bureau of the Chamber of Councilors (Art. 78). Furthermore, it is the Chamber of Representatives that adopts in last resort the laws (Art. 84).

As far as legislative power is concerned, the 2011 Constitution marks a significant discontinuity from the past, stipulating, for the first time in Morocco’s history, that “Parliament shall exercise the legislative power” (Art. 70). Moreover, the number of areas falling within the exclusive remit of the legislature has increased significantly. Indeed, the domaine de la loi has passed from ten matters—as provided for in the 1996 Constitution—to thirty matters, all of great importance (Art. 71). As was previously the case, all other matters belong in the regulatory domain (Art. 72). This is undoubtedly a significant strengthening of the legislative power of the parliament, which is now entitled to pass laws in almost all areas of social, economic, and political life; this consequently limits the regulatory domain. The latter, however, continues to enjoy a privileged status in some situations. For example, texts adopted in legislative form can be changed by decree, after confirmation from the Constitutional Court, in cases where they may intervene in a domain devolved to the regulatory power (Art. 73). Moreover, the government can deny the receipt of any proposal or amendment that does not fall within the domaine de la loi (Art. 79).⁴¹

The new constitution has also reinforced the government’s powers in the legislative domain. Indeed, Art. 70 states that an enabling act can allow the government, for a limited time and a specific objective, to take by decree measures that normally fall within the remit of the legislature.⁴² Art. 78 stipulates that the initiative of law belongs concurrently to the head of government and to the members of the parliament. According to Art. 81, the government can, between sessions, adopt decree-laws that must be submitted for ratification in the next ordinary parliamentary session. Furthermore, the government sets the legislative agenda (Art. 82), and the right of amendment belongs to the members of parliament and to the government (Art. 83).⁴³

(p. 507) The aforementioned articles, together with other constitutional provisions (such as Art. 47, which stipulates that the sovereign appoints the head of government on the basis of the results of the elections, and Art. 88, which provides that the government is invested after having obtained the confidence of the House of Representatives) seem to confirm the “tendential merging of the legislative and executive branches”, characterized by a “concentration of powers in the hands of a partisan majority which rules both the Parliament and the Government”.⁴⁴ Given this tendency, which is typical of most contemporary parliamentary systems, the role of the parliamentary opposition becomes crucial to establishing an effective counterweight to the majority.⁴⁵ The 2011 Constitution, which has significantly strengthened the status of the parliamentary opposition,⁴⁶ supports this direction.

An analysis of the legislative power in Morocco, however, would not be complete without discussing the role of the king. Indeed, the royal institution has been of the utmost importance in the legislative domain since the beginning of last century. It was the 1912 Treaty of Fez—which made Morocco a French protectorate—that removed the Oulemas (ʿUlamāʾ) from their quasi-legislative monopoly and the Moroccan Sulṭān expressly received legislative power. The Sulṭān (who assumed the title of king in 1957) continued to exercise this power between 1956—when Morocco gained independence—and 1963, when the first constitution came into force. The sovereign was then described by the literature as a “legislator”.⁴⁷

The constitutional history of independent Morocco shows that the king exercised legislative power—through royal decrees—both in exceptional circumstances and ordinary situations. He exercised an “exceptional legislative power”⁴⁸ during states of emergency (such as in the period 1965–1970) and—until 1996—even during the periods of constitutional transitions, when the monarch took the legislative measures necessary to implement the institutions provided for in the new constitution, and to manage public affairs.⁴⁹ The sovereign also exercised exceptional legislative power (based on an expansive reading of Art. 19 of the constitution)⁵⁰ during the periods of suspension of the activity of parliament, as well as following the dissolution of parliament, when he was allowed to legislate until the new parliament was elected. The 2011 Constitution has almost entirely put an end to all these prerogatives, leaving to the king significant powers only during states of emergency.⁵¹

Regarding ordinary situations, one should distinguish between “the power to decree and the power to block”.⁵² The former refers to the positive action of the king to legislate in the domains assigned to him by the constitution. As discussed above,⁵³ following the (p. 508) division of the “old” Art. 19, the new constitution dictates the end of the king’s monopoly, in his capacity as Amīr al-Muʾminīn, on legislation pertaining to religious matters, family law, and the protection of rights and freedoms, and heralds in this field the start of legislative power shared with parliament.

Furthermore, the presidency of the opening of the first session of parliament (which is reserved under Art. 65 of the constitution to the sovereign) provides the king with the opportunity to provide inspiration for and to guide legislative action. The speech, given by the Moroccan monarch, then, has nothing to do with the speech given by his counterpart in England, who merely recites a speech that is actually prepared by the prime minister. On the contrary, to a certain extent, the Moroccan king’s speech is more analogous with the “State of the Union address” delivered by the US president.

With regard to the “power to block”, before the adoption of the 2011 Constitution the sovereign could slow down or even stop the legislative process in three ways.⁵⁴ The first one referred to the promulgation of laws, which, until the 1992 constitutional reform, was not subject to any time limit. Afterward, the king had to promulgate a law within 30 days following its receipt by the government, but the constitution did not state any time limit for the publication of the laws in the Official Gazette. The 2011 Constitution has remedied this situation by stipulating that the law must be published in the Official Gazette within one month of the date of the royal decree through which it was promulgated (Art. 50).

The previous constitutions also vested the king (after he requested a second reading by parliament) with the power to submit any draft bill or proposed law to referendum, except in the case of those submitted for a new reading that were adopted or rejected by a two-thirds majority in the parliament. This royal prerogative disappeared with the 2011 Constitution. The only “power to block” maintained in the new constitution consists of the king’s power to request a second reading by parliament.

Therefore, following the 2011 constitutional reform, the Moroccan sovereign has undoubtedly lost much of his power in the legislative domain, and should thus be described as a lame king-legislator. Nevertheless, he still holds some very relevant prerogatives, which allow him to continue to play an influential role even in this area.

VI.  Judicial Power, Constitutional Justice, and the King’s “Interference”

The weak independence of the judiciary has been considered a major punctum dolens of the Moroccan regime for a long time. The new constitution introduced some relevant novelties aimed at remedying this problem. First, the judiciary was elevated from a mere “authority” (as defined under the 1996 Constitution) to the status of a full-blown branch of the state, independent of legislative and executive powers (Art. 107). Such independence, as granted by the king (Art. 107), is guaranteed through a number of constitutional provisions. Indeed, the presiding magistrates (magistrats du siège) are irremovable (Art. 108), and the decisions of the judges are rendered on the sole foundation of the impartial application of the law (Art. 110). Moreover, the magistrates enjoy freedom of expression and can belong to associations or create professional associations within the bounds of respect for impartiality and the independence of justice. However, since magistrates not only have to be impartial but also must appear as such, they cannot belong to political parties or to trade-union organizations (Art. 111). Art. 109 stipulates that in their judicial function, judges cannot (p. 509) receive injunction or instruction, nor be submitted to any pressure whatsoever. Each time a judge considers his or her independence to be threatened, the judge must refer the matter to the Higher Council of the Judicial Power. This body, which replaces the High Council of Magistracy, is still chaired by the king; however, under the new constitution, the executive president is not the Minister of Justice (as provided under the 1996 Constitution) but is the first president of the Court of Cassation, thus making this body more independent (Art. 115). The Council applies the guarantees accorded to the magistrates, most notably concerning their independence, appointment, advancement, retirement, and discipline. It can also draw up reports on the status of justice and the judiciary, and make recommendations in this field (Art. 113).

It should be noted that the constitution now stipulates: “individual decisions by the Council […] may be challenged before the highest administrative jurisdiction in the Kingdom [i.e., the Administrative Chamber of the Supreme Court], on the grounds of abuse of powers” (Art. 114), and that the king approves by ẓahīr the appointment of the magistrates by the Council (Art. 57). This means that if such an appointment were interpreted as an individual decision of the Council, the ẓahīr of appointment could be then challenged on the grounds of abuse of power.⁵⁵ Therefore, this form of appeal would depart from the tradition of immunity accorded to royal ẓahāʾir.⁵⁶ However, as has been stressed by part of the literature,⁵⁷ this type of ẓahīr is not a genuine royal ẓahīr, but a decision made by the Higher Council of Judicial Power (which is chaired by the king).

In September 2013, the High Authority for national dialogue on the reform of the justice system, which was established by Muḥammad VI in May 2012, presented the results of its work, consisting of a Charter on the Reform of the Judiciary System. This document, containing a number of proposals aimed at implementing the constitutional provisions in the field of judicial independence, undoubtedly represents an important step, and therefore its proposals should be turned into law as soon as possible.

It is also important to mention that the new Constitutional Court⁵⁸ (which is not part of the judiciary) has been assigned the competence “to look into an exception of unconstitutionality raised in the course of a trial, when one of the parties argues that the law on which depends the outcome of a trial undermines the rights and freedoms guaranteed by the Constitution” (Art. 133). Thus, in addition to the ex ante review (already provided for under the previous constitution), the drafters—probably influenced by the 2008 French constitutional reform, which gave the Cour de Cassation and the Conseil d’Etat the power to submit legislative provisions to the Conseil Constitutionnel for a review of their constitutionality—decided to introduce concrete constitutional review. Such ex post review appears to be extremely important in order to enable the Constitutional Court to reinforce its position as (p. 510) a counter-majoritarian body and may thus contribute to the transition to democracy more effectively than in the past.⁵⁹

Notwithstanding the aforementioned novelties aimed at strengthening the independence and power of the judiciary and the Constitutional Court, it is important to point out that the king continues to “interfere” in the domains of the judicial system and constitutional justice. Indeed, according to Art. 124, the judgments “are rendered and executed in the name of the King and by virtue of the law”, thus confirming the well-rooted principle according to which in Morocco justice is a delegated function.⁶⁰ Moreover (as seen above) the king approves by ẓahīr the appointment of the magistrates by the Higher Council of the Judicial Power. The latter, still chaired by the sovereign, is composed of several members who are appointed by him. Indeed, in addition to the five members directly nominated by the monarch, one must include the mediator and the president of the National Council of the Rights of Man, both of which were appointed by the sovereign through royal decree. The king also plays a key role in the appointment of the twelve justices of the Constitutional Court: Indeed, the parliament nominates six, and the monarch selects the other six as well as the president (Art. 130). Finally, the monarch exercises the right of pardon (Art. 58).

VII.  Concluding Remarks

As far as the distribution and separation of powers is concerned, this chapter demonstrates that the 2011 Moroccan Constitution both breaks from and maintains continuity with the past. Indeed, on one hand, the powers of the government and parliament have been strengthened, and the judiciary is now more independent. Moreover, although the form of government has remained the same (Morocco continues to be an executive monarchy), several constitutional provisions have reinforced the parliamentary dimension of the regime.

On the other hand, however, the continuity with the previous constitutional order is still very evident. Indeed, the principle of unity of power that characterized Morocco before the 2011 constitutional reform is still in place and continues to prevail over the principle of the separation of powers. The latter has been undoubtedly strengthened, but it continues not to be implemented in the way it is implemented in Western consolidated democracies. The keys of the constitutional system are still in the king’s hands. In fact, the constitution was “granted” by the sovereign, and did not result from a democratically elected constituent assembly.⁶¹ Therefore, Muḥammad VI has continued to pursue the tradition of a “constituent king”.⁶² Furthermore, notwithstanding the division of the “old” Art. 19, the “confusion” (p. 511) between temporal and spiritual power does not seem to be completely over yet, at least from a practical point of view. Additionally, the monarchy continues to transcend the separation of the three branches of government; in fact, the king is still the real leader of the executive, maintains relevant powers in the legislative domain, and continues to “interfere” in the judicial system. Ḥassan II, with the aim of stressing his key powers over all the aspects of the state apparatus, once stated: “It is necessary that your King, protector of the Constitution and defender of everyone’s liberties, can at all times control and conduct the affairs of the State”.⁶³ This concept seems to still be very relevant in today’s Morocco.(p. 512)