The constitutional changes approved by the Moroccan electorate in the referendum of July 2011 represent a major reorientation of the Moroccan constitutional system. The reforms strengthen the democratic and rule of law components of the constitutional system in several important respects. One such important new development is the express constitutional recognition of the special status of the parliamentary opposition. According to Art. 10 of the new constitution, this status enables the opposition to fulfill its special role in parliament and in the political life of the country. The parliamentary opposition has, among other things, the right to present its views in the official media, to have access to public funding, to participate in an effective manner in the law-making procedure and the oversight of the government, and to be represented adequately in the internal activities of parliament. It is particularly notable that the presidency of the important committee on legislation is to be reserved for a member of the parliamentary opposition.
In another potentially significant departure from previous constitutional practice, the 2011 Constitution contains a fully developed bill of rights. The 1996 Constitution had limited itself to a number of guarantees of fundamental rights which were included in Title 1 on the basic principles of the Moroccan Constitution. By contrast, the 2011 Constitution contains a separate and detailed chapter on freedoms and fundamental rights (Arts. 19 to 40). According to Art. 19, Moroccans shall enjoy, in addition to the rights and freedoms set forth in the new constitution, the human rights guaranteed in the international conventions and covenants to which the Kingdom of Morocco is a party. The enjoyment of these rights is qualified, however, by the reminder that they shall be exercised “in accordance with the provisions of the constitution, the lasting traditions and the laws of the Kingdom”.
The provisions in Title 2 guarantee the most important civil and political rights, including the right to life (Art. 20), security (Art. 21), physical and moral integrity (Art. 22), freedom from arbitrary detention or arrest (Art. 23), the right to protection of one’s private life (Art. 24), freedom of expression, information, and the press (Arts. 25, 27), freedom of assembly, peaceful manifestation, and assembly (Art. 29), the right to vote (Art. 30), and the right to property and freedom of enterprise (Art. 35). The latter right is balanced, however, by the obligation of the legislature to take measures to prevent conflicts of interest, insider trading, and all offences of a financial character, as well as practices which are contrary to the principles of free and fair competition (Art. 36).
(p. 687) In line with these changes, the new constitution has strengthened the role of constitutional review. The Constitutional Council (Conseil constitutionnel), established in 1992, has been elevated to the rank of Constitutional Court (Cour constitutionnelle). Like its forerunner, the new Constitutional Court is composed of twelve members appointed for a term of nine years, with a renewal of one-third of the membership taking place every three years. Six of its members are appointed by the King and the other six members are elected by parliament, one-half by the House of Representatives and one-half by the House of Counsellors. Of the six members to be appointed by the King, one shall be proposed by the Secretary General of the High Council of Religious Scholars. Unlike the 1996 Constitution, the new constitutional text leaves no doubt that the members of the new court have to be drawn from the legal establishment. They are to be chosen from among individuals who have a good legal education, have demonstrated their competence by practicing a profession in the judicial, academic, or administrative field for more than fifteen years, and who are known for their impartiality and integrity (Art. 130).
The court continues to carry out the functions which were previously performed by the Constitutional Council. In this regard, the court is responsible for monitoring the proper conduct of parliamentary elections and referendums and for reviewing the constitutionality of parliamentary legislation and the parliamentary rules of procedure. The power to review ordinary statutes and so-called Institutional Acts (i.e., statutes which are referred to in the constitution by this name; in substantive terms, these are statutes which spell out the details with regard to the organization, powers and functioning of the main state institutions established by the constitution) can only be exercised before the statute in question is promulgated. This power has been extended by the reform to laws relating to international agreements before their ratification. The review of Institutional Acts and new parliamentary rules of procedure is compulsory, i.e., a prior application to this end by a state body or an individual is not required. In contrast to this, ordinary statutes and laws relating to international agreements will only be reviewed if they are referred to the Constitutional Court by one of the applicants mentioned in the third paragraph of Art. 132 before their promulgation or ratification, i.e., by the King, the head of government, the president of either of the houses of parliament, one-fifth of the members of the House of Representatives, or one-quarter of the House of Counsellors.
In the past the Constitutional Council has made only very limited use of these review powers, especially with regard to the protection of fundamental rights and freedoms.30 The Council was unable to develop any coherent case law relating to fundamental rights as, under the optional review procedure, the members of the political opposition in parliament rarely used their right to refer ordinary statutes to the Council. This is perhaps not surprising as the Council was originally created with the primary purpose of upholding the dominant position of the monarchy enshrined in the constitution. It was allowed to venture into other fields, and in particular into the field of fundamental rights, as long as this was not seen as incompatible with its primary role.31 This original narrow view of constitutional review was reflected in the early jurisprudence of the Council which firmly upheld the prerogatives of the government in its relationship with parliament. By contrast, a number of statutes which raised concerns about fundamental rights went largely unchecked.32
(p. 688) The constitutional reforms of July 2011 have, at least, given the legal instruments to the new Constitutional Court to act more vigorously in the defense of civil rights and liberties. Under the new Art. 133, the court will have jurisdiction to rule on the claim of unconstitutionality brought by one of the parties to a pending court case against a statute allegedly violating the rights and freedoms protected by the constitution, provided that the outcome of the court case depends on the constitutionality and applicability of the statute. While it will still not be possible to apply directly to the court in the case of human rights violations, the court will for the first time have the power to rule on the constitutionality of legislation which is already in force, and will be competent to do so outside a political context in the narrower sense, i.e., upon an application which is brought not by a political body, but rather by a court or by a private person or entity which is a party to judicial proceedings.
Much will depend on the implementation of this provision, and in particular on the question of whether the power to refer cases to the Constitutional Court for the review of a statute’s constitutionality is restricted to the highest courts or whether it is extended to all courts, tribunals, and bodies of a judicial character before which the question of unconstitutionality of a statute may arise in the context of concrete litigation. Another vital question is whether the parties involved in such judicial proceedings are given specific rights with regard to the initiation of such a procedure, as is the case in Egypt.33 A reform along Egyptian lines could open the way for a substantial role of the Constitutional Court in the defense of fundamental rights and the rule of law, assuming the Egyptian experience is a reliable indicator.
The profile of the Moroccan Constitutional Court has also been raised in other respects. The president of the Constitutional Court is now one of the individuals who have to be consulted by the King and the highest political authorities on the most important matters of state. These decisions include the declaration of a state of emergency by the King (Art. 59), the dissolution of parliament by the King (Art. 96) or of the House of Representatives by the prime minister (Art. 104), and the introduction of a bill amending the constitution by the King (Art. 174). The president of the Constitutional Court also heads the Regency Council, which exercises the powers and constitutional rights of the monarch before the heir to the throne reaches the required age (18) to assume his royal functions (Art. 44).
Prior to the constitutional reform of September 2011, Jordan had neither a French-style Constitutional Council nor an Egyptian-style Constitutional Court. The only provision relating to the enforcement of the constitution was to be found in Art. 122 of the Jordanian Constitution of 1952. This provision assigned to the High Tribunal the right to interpret the provisions of the constitution. The High Tribunal was the body set up under Art. 57 for the trial of ministers for offences which they committed in the performance of their duties. It consisted of nine members, four of whom were drawn from the ranks of the Senate, while the other five members were selected from the ranks of the highest civil court. Its mixed political/judicial character raised doubts whether the Tribunal’s constitutional interpretations under Art. 122 could be considered legally binding. But even if their binding character was admitted, the fact remained that the Tribunal could only exercise its powers at the request of the Council of Ministers or of one of the two houses of parliament. It did not (p. 689) have the power to adjudicate concrete disputes. It is therefore not surprising that its relevance to the development of constitutional law in Jordan remained very limited in practice.
The reforms of September 2011 have brought fundamental change in this area by establishing, for the first time since the country was founded in 1922, a separate constitutional jurisdiction in Jordan. The new Constitutional Court is to be composed of nine members. Like the Moroccan Constitution, the amended Constitution of Jordan stresses the need for the Constitutional Court judges to be professionally competent. They must have served either as a judge in the Court of Cassation or the High Court of Justice; or as professor of law (with a full professorship) at a university, or as lawyer with no less than fifteen years of professional practice. However, unlike the Moroccan Constitution the revised Jordanian Constitution still leaves the door open to the membership of former politicians by stipulating that “specialists” who fulfill the conditions for membership in the Senate may also join the new review institution (Art. 61). According to Art. 64, the group of people eligible for membership in the Senate comprises present and past prime ministers and ministers, persons who previously held the office of ambassador, Speaker of the Chamber of Deputies, president and judges of the Court of Cassation and of the Civil and Sharīʿah Courts of Appeal, retired military officers of the rank of Lt. General and above, former deputies who were elected at least twice, and “other similar personalities who enjoy the confidence and trust of the people in view of the services they have rendered to the nation and country”. It is not clear whether or not the term “expert” is to be understood as an additional qualification which would allow this rather large group of dignitaries to be whittled down to those who either come from the legal profession or at least hold a law degree when it comes to determining their eligibility for membership in the Constitutional Court. The judges are to be appointed by the King for a term of six years. Whereas draft versions of the new Art. 58 had provided that the term of membership would be subject to renewal, this clause, which constituted a potential threat to the independence of the judges, has disappeared from the final version of the article.
The Constitutional Court rules on the constitutionality of laws and regulations and interprets the constitution upon the request of the Council of Ministers or either of the houses of parliament (Art. 59). While citizens do not have the right to approach the court directly, the right to request the review of a statute or regulation for its constitutionality is limited to the highest bodies of the executive and the legislature, i.e., the Council of Ministers and both houses of parliament. However, the parties to a case pending before the ordinary courts have the right to plead the unconstitutionality of law and regulation. If the court of litigation is convinced that the challenged provision is applicable to the case at hand and that the claim of unconstitutionality is serious, it shall suspend the proceedings and refer the matter to the Court of Cassation, the highest civil court in Jordan, for a final decision on whether the petition will be submitted to the Constitutional Court. If the court of litigation refuses to refer the matter to the Court of Cassation, its decision can be appealed. By contrast, any decision by the Court of Cassation not to refer the matter to the Constitutional Court is not subject to appeal by the party whose petition has been rejected. It is therefore this court which determines whether the avenue to the Constitutional Court for private parties is a broad or a narrow one. Since the new Constitutional Court was established in 2012, it has already had the opportunity to decide on the conformity of laws with the constitutional bill of rights in this procedure in a number of cases. The court has already made use of this power to strike down laws for their inconsistency with the constitutional bill of rights on several occasions.34