Constitutionality has a legitimizing role in Morocco, but so does monarchy. As all the constitutions make clear, the head of state is the King (or Sultan, in 1908) who is ‘Commander of the Faithful’ (amir al-muminin). His authority is derived from his role as the political head of a community defined by belief. That authority, baraka, is an inherited quality passed by genealogical descent from the founder of the Alaouite dynasty Moulay al-Cherif and his son Moulay al-Rashid (1666-1672), who seized power when the Saadi dynasty disintegrated in half a century of civil war. Both dynasties claimed their legitimacy ultimately from descent from the Prophet Muhammad, but that was a very large cohort. Prophetic descent was reinforced by the ability to command force and exercise power. At the end of the 19th century and the beginning of the 20th, the reigning sultan, Abdelaziz, exhausted his money and power. Increasing European hegemony led religiously inspired nationalists to overthrow him and replace him with one of his brothers, Abdelhafid. He could not resist European pressure and agreed to accept a protectorate, although the French authorities removed him as sultan. The French did, however, maintain the institution of royal family and appointed another brother, Yusef, as sultan. When he died in 1927, he was succeeded by his son Mohammed V, who became the symbolic rallying point for a modern nationalist movement that asserted his legitimacy while trying to limit his powers. In the end, the sultan, after changing his title to ‘King’ in 1956, won the post-independence struggle for power.
Mohammed V’s son, Hassan II, who ruled from 1961 until 1999, maintained the facade of a constitutional monarchy, but he was the master of his realm. He used his constitutional power to appoint the Prime Minister (the leader of the largest party) and to approve and promulgate laws vigorously, repeatedly dissolved Parliament, rewrote the constitution several times, and rigged elections in favour of his supporters. Parliament and political parties were reduced to marginal roles, and there were severe constraints on the media. The judicial system was subjected to interference by the authorities in political cases, and dissidents were arrested, held incommunicado for long periods, and tortured. But individuals did not, in the end, ‘disappear’, and the repression was focused, not generalized. The form of a constitutional monarchy was retained, and, towards the end of Hassan II’s reign and after the succession of his son Mohammed VI in 1999, the repression was eased. The 2011 Constitution, which was immediately the result of the Arab Spring movement, was the long-term consequence of this liberalizing trend. Yet despite its relatively progressive orientation, the new Constitution maintains the monarch as the most important political actor, with his formal rights and legitimacy unchanged.
But Mohammed VI, who came to the throne when he was quite young – he was born in 1963 – has modernizing and technocratic credentials. He earned a BA in law at Rabat-Agdal University and a PhD in law from the University of Nice Sophia Antipolis, where he wrote his thesis on EEC-Maghrib relations. He also spent time training in the office of Jacques Delors, when Delors was President of the European Commission.
According to Morocco’s Constitution, executive power is vested in the government, which consists of the Prime Minister and the Cabinet (Article 87). The Prime Minister and Cabinet are officially appointed by the King, but the government’s programme must be approved by a majority vote of the Chamber of Deputies after a debate in both parliamentary chambers. As a result, the executive is made up of members of the largest party or coalition of parties in the Parliament determined by the results of the general elections. The Cabinet determines and implements public and foreign policy and oversees the passing of laws by Parliament. It also appoints the administrative heads of government departments, the presidents of universities, and the heads of other institutions of higher education. Other posts, especially in the economic field, are filled by the King.
The current Prime Minister is Abdelilah Benkirane of the moderate Islamist Justice and Development Party (Parti de la Justice et du Développement, PJD). He was appointed in November 2011, after elections, and heads a coalition including the centre-right nationalist Istiqlal, the liberal Popular Movement (Mouvement Populaire, MP), which has Berber roots, and the left-wing Party of Progress and Socialism (Parti du Progrès et du Socialisme, PPS; formerly the Parti Communiste du Maroc).
Four months after the parliamentary elections of 7 October 2016, Abdelilah Benkirane, leader of the winning Islamist Justice and Development Party (PJD), has still been unable to form the coalition government required by law.
According to the Constitution, Parliament exercises legislative power and can validate the authority of the government. Both chambers debate the government’s programme, but only the House of Representatives can vote it down. Parliament passes laws: legislative bills are submitted to both chambers, and if they do not adopt an identical text, the government sets up a joint committee with equal representation to establish it. If the committee cannot agree, the House of Representatives has the last word. Ministers can be questioned orally in both chambers, and a vote of no-confidence in the government can be passed. There are two parliamentary sessions a year, beginning in October and April. The October session is opened by the King. Each session lasts for no more than four months. Full sessions are held in public. The previous elections were held on 25 November 2011, but voter turnout was low (45 per cent), indicating the lack of trust in the electoral system. In the 2016 elections, the results were close for the two main parties: the PJD won 125 of the 395 seats whereas the Authenticity and Modernity Party took 102. The conservative Independence Party trailed in third place with 43 seats.
Because of its history, Morocco has a dual legal system, under which civil legislation, based on the French code system, defines contract, commercial, administrative, and criminal law and provides the bases of codes of civil and criminal procedure, while Islamic law provides the basic structure governing personal, family, and succession issues. Islamic law too is codified, in the Mudawana. This can have the result of creating alternative legal solutions in certain areas.
There are three levels of jurisdiction. The basic level includes first-instance courts, trade courts, and communal and district courts. First-instance courts hear civil cases related to persons or inheritances, and to social and commercial laws. A taoutiq judge (who handles notary issues and issues concerning minors), assisted by aduls (religiously-trained clerks), applies the personal law in the first-instance court. Trade courts deal with commercial and business disputes with a value under a specific amount. Communal and district courts hear personal-estate actions against residents of their jurisdiction, again, under a certain sum. They also hear criminal cases involving petty offences. As under the French system, an investigating judge investigates serious offences and can remand a suspect into pre-trial custody. Second-level jurisdiction includes courts of appeal from the first-instance courts and criminal cases involving serious offences. The Supreme Court hears appeals from lower courts and resolves jurisdictional disputes.
There are also specialized tribunals: a commercial court system that hears commercial cases involving large sums, with its own system of appeals; administrative courts that deal with initial cases involving the public authorities; independent audit courts that operate at the central and regional levels; and a separate Standing Tribunal of the Royal Armed Forces. The Constitutional Court has the task of ensuring that laws passed by Parliament are in conformity with the Constitution.
The Constitution (Article 80) states that ‘The judicial authority is independent of the legislative power and of the executive power’ and that magistrates are not removable (Article 83). However, as the US State Department ‘Country Reports on Human Rights Practices‘ on Morocco for 2011 points out, courts often do not act independently in practice and are subject to corruption and extra-judicial influence. Similarly, although defendants are presumed innocent and have a legal right to a fair public trial with right of appeal, this is not always the case in practice, especially in political cases involving those protesting the incorporation of the Western Sahara.
The general opinion of the judicial system is low, partly because there is such a high level of illiteracy. Attempts by the Ministry of Justice to set up a multi-media public-awareness campaign on basic rights failed because of lack of funding. Women in particular are rarely aware of their rights. Other problems are the quality of legal personnel and difficulties of gaining access to the courts.
The Ministry of Justice recognizes that the level of judicial competence is generally low, a consequence of the poor training of judges by the National Institute of Judicial Studies, which lacks staff and resources, and because of shortcomings in court internships. The corps of judges is also unrepresentative of Moroccan society. Only one-quarter of judicial trainees are women, and 90 percent are from the cities, although only 55 percent of the population is urban. The system relies heavily on university academic performance: half the trainees have a law degree, and the rest have higher qualifications, but 80 percent have had no previous professional experience.
Access to the Courts
There are no provisions for legal aid in civil matters – even though legal representation is compulsory before the bench – except in cases involving alimony. Most of the population cannot afford legal services, as the average lawyer’s fee is equivalent to two to four weeks of the minimum wage. In criminal cases, there are court-appointed defence lawyers for indigent defendants who act pro bono, but there are no public defenders.
Before the Protectorate began in 1912, Moroccan law was the Sharia, with the addition of regulations in particular areas based on a mixture of expediency and treaty agreements with foreign countries. Foreigners and their local agents were exempted from both Moroccan law and taxation, by the system of capitulations and placed under the jurisdiction of their national consuls, which allowed them to do business unfettered and behave badly.
After 1912, the Protectorate slowly negotiated an end to the capitulation system; the British were the last major power to agree to end protected status in the French zone in 1937, but not in the Spanish zone, where the capitulations were renounced only at independence, in 1956. At the same time, the French established what was effectively a three-part legal system in Morocco. In 1913, a decree (dahir) took all but civil cases out of the hands of the qadis (religiously educated judges), and reorganized the administration of justice in both jurisdictions along French lines. French code-law came to predominate in most of the legal system. Religious personal-status law was maintained as the responsibility of Sharia courts for Muslims and rabbinical courts for Jews. As part of the policy under the French Protectorate of dividing Arabs from Berbers, the French authorities installed a system of customary law in the Berber areas. This was a rolling process, and the final stage in 1930 saw the promulgation of the famous Berber Dahir, which was envisioned as a tidying-up process under which tribal qaids (administrators) would deal with minor criminal matters under French law and civil matters according to what the French defined as Berber customary law. Sultan Mohammed V was obliged to sign the Dahir, but it brought a storm of protest from Arab nationalists, who saw it as an attack on Islam, by degrading the Sharia.
Since independence, the civil- and criminal-law systems have been based on French, Spanish, and Islamic law, following French legal procedure. This is formalized in five codes that have been updated and revised at various times: Civil (1913), Penal (1962), Penal Procedure (1959), Commercial (1996), and Mudawana (for family law). The latter was first enacted in 1957 and modified in 2004 and is by far the most controversial (see Women). There is also a small-claims legal system.
The death penalty (by firing squad) can be applied for aggravated murder, torture, armed robbery, arson, treason, desertion, and attempts on the king’s life; it also exists in the military courts. In 2003, terrorist crimes were added to the list, but the penalty has not been carried out since 1993 (although by August 2008 there were 150 prisoners on death row). Article 20 of the new constitution in 2012 states, ‘Right to life is the first right for every human being. The law protects this right’. This has been used as the basis for a strong campaign to make Morocco the first Arab country formally to abolish the death penalty.
Each region is headed by a governor (wali) and includes of a varying number of provinces (covering rural areas) and prefectures (covering large urban areas). Parts of the regions of Guelmim–al-Semara and Laayoune–Boujdour–Sakia al-Hamra and all of Oued Eddahab Lagouira are in the territory of Western Sahara.
In January 2010, King Mohammed VI set up a Consultative Commission on Regionalization, ostensibly to examine how administration, regional development, and finance functioned under these arrangements. The underlying reason seems to have been to provide a possible solution to the Western Sahara question. The Commission proposed there be only twelve regions, covering larger areas and greater populations and with much greater autonomy. Elected regional councils would control the local budget, supported by an Interregional Solidarity Fund. One model seems to have been the system of regional government in Spain; when these structures were outlined in the 2011 Constitution, Article 140 spoke of the principle of subsidiarity, a typically European Union concept that refers to policies being handled by the smallest, lowest, or least centralized level of authority.
Most significantly, under this new model the Saharan provinces would be brought together into two regions rather than shared between three provinces that also included parts of pre-1975 Morocco. This would permit the operation of a local autonomy plan for the Western Sahara: the two Saharan provinces would be empowered to use local resources to develop the infrastructure and improve the economic conditions. The proposed policy has not yet been put into effect, although the constitutional basis for it was laid out in the 2011 Constitution (Section IX). There are enormous difficulties to realizing it. One of the new constitutional provisions is that the regional councils should be elected by universal suffrage (Article 135): how could a democratically self-governing Western Sahara coexist with authoritarian Morocco? Moreover, autonomous regions elsewhere in the world have functioned smoothly only on the basis of the rule of law and respect for human rights, which might conflict with the vast prerogatives of the King under the current system.
Beneath the highest level, consisting of the regions, are the provinces, which are subdivided into communes.
The Communist Party was banned in 1952 but resurrected in 1974, still with Ali Yata at its head, as the Party of Progress and Socialism (Parti du Progrès et Socialisme, PPS). These historic nationalist parties still exist, though the PDI won no legislative seats since 2002.
A second generation of parties was founded between the late 1960s and early 1980s, the most repressive period of Hassan II’s rule. The King used the parties as a way to divide the political forces. As a result, many were muted in their criticism and positioned themselves in the political centre. They included the National Rally of Independents (Rassemblement National des Indépendants, RNI; 1978), which backed away later from uncritical support of the King; the National Democratic Party (Parti National Démocratique PND; 1981), a centre-right party that split from the RNI; the Constitutional Union (Union Constitutionelle, UC; 1983), a centre-right party claiming to represent the post-independence generation; the Action Party (Parti de l’Action, PA; 1974), a Berber modernist party; and the Popular National Movement (Mouvement National Populaire, MNP; 1991), a centrist offshoot of the MP, led by one of its former leaders, Mahjoubi Aherdane. The other historic leader of the MP, Abdelkarim al-Khatib, founded the Popular Democratic and Constitutional Movement (Mouvement Populaire Constitutionel Démocratique, MPCD; 1967), which adopted an Islamist tone. Thus, not all the new parties were entirely supportive of the regime: on the left, former members of the USFP and PPS set up the Organization for Democratic and Popular Action (Organisation de l’Action Démocratique et Populaire, OADP) in May 1983.
Justice and Development Party
In 1996, under a new Constitution, the repression began to lift. A new wave of parties emerged, many of them offshoots of second-generation parties. In that year defectors from the OADP created the Democratic Socialist Party (Parti Socialiste Démocratique, PSD), former members of the OAPD set up the Front of Democratic Forces (Front des Forces Démocratiques, FFD), and, in yet another secession from the MP line, the Democratic and Social Movement (Mouvement Démocratique et Social, MDS) separated from Aherdane’s MNP. The most important subdivision of the MP turned out to be the MCPD, which merged with an Islamist party, Reform and Renewal (Réforme et Renouvellement), led by Abdelilah Benkirane in June 1996 (in 1998 the name was changed to PJD). It positioned itself as a moderate Islamist party inspired by the Turkish Islamist movement and went on to become the biggest party in the elections in November 2011, when Benkirane became Prime Minister of a coalition government.
Authenticity and Modernity Party
The Authenticity and Modernity Party (PAM) was founded in August 2009 by Fouad Ali el-Himma, a close friend of King Mohammed VI and a palace advisor. The party has been led by Ilyas el-Omari since January 2016. PAM includes in its ranks members with different ideological leanings such as liberals, leftists, Islamists and royalists, suggesting a lack of a clear ideological direction.
The party won the municipal elections in 2009, and, with 47 seats, came fourth in the 2011 parliamentary elections. Despite criticisms that PAM is a political tool for the monarchy, the party came in second in the 2016 parliamentary elections, obtaining 102 seats.
Most equipment has recently come from the United States; before that, the main supplier was France. In the early days after Moroccan independence, the Soviet Union supplied a large amount of military equipment, most of which is no longer in service.
The Army’s main battle tanks are 220 US-made M6001A, although there are still 40 Soviet-era T-72 tanks on the books. The main light tanks are French (AMX-13) and Austrian (SK-105 Kürassier).
The Air Force relies on older French planes, mainly Mirage F1-C and F1-E acquired in the 1970s and 1980s and American F-5E Tiger. Transport planes are largely US-made.
The Navy is the poor relation of the services: it has some modern French-built frigates, but its main fleet consists of aging patrol and coastal craft that cannot prevent fast boat smuggling across the Mediterranean. Since the early 2000s a much closer relationship with the United States, part of the so-called ‘War on Terror’, has made possible a modernization programme, particularly of the Air Force, with an order for 24 F-16 fighter aircraft, some of which have been delivered. The Navy is being re-equipped with Dutch-built SIGMA frigates.
The active forces in Morocco are:
- Royal Army 185,800
- Royal Navy 42,000 (including 1,500 marines)
- Royal Moroccan Air Force 13,000
- Royal Guard 5,000
- Moroccan Auxiliary Forces 45,000
The national civilian police force is the National Security (Sûreté Nationale), which is an armed force of about 60,000, under the Ministry of the Interior. Its 37 local districts are responsible for policing traffic in urban areas, policing large crowds (e.g., sports fixtures and concerts), and civil protection during emergencies. The National Security includes various technical services, such as scientific and computer specialists. Women were first recruited as uniformed officers in 1997.
The 2011 US State Department Country Reports on Human Rights Practices in Morocco reported that corruption and the abuse of detainees were widespread among both National Security officers and gendarmes, undermining law enforcement and the judicial system. In February 2010, a royal directive outlined a plan to modernize and professionalize the National Security by improving the quality of recruits and reducing corruption, with increased investigation, prosecution, and training – including a human-rights component – for security personnel. Officials were arrested and prosecuted for crimes ranging from assault and battery to petty bribery in all parts of Morocco and Western Sahara, but many cases are not brought to trial.