Justice Sector Assessment
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Morocco’s “Arab Spring” and Judicial Independence
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By: Carolyn A. Dubay,
Associate Editor, International Judicial Monitor
As the world watches 2011’s “Arab Spring,” most media attention has focused on efforts to reform electoral processes, lift stringent emergency laws, and dismantle authoritarian governments. For judicial reform watchers, an interesting development is the prominence of judicial independence as a key area of overall democratic reform. In Morocco in particular (as well as in Egypt), pro-democracy groups have demanded constitutional changes aimed not only at increasing democratic control over government institutions, but at securing the independence and fairness of justice sector institutions. Responding to this demand, Morocco’s King Mohammed VI has promised a constitutional reform process, scheduled to be completed by June 2011. Already, however, media reports have emerged that some protesters have complained of being shut out of the constitutional reform process, which is being undertaken by a constitutional commission appointed by the King.
The demands for judicial reform in Morocco are not simply an outgrowth of the
Arab Spring. Quite to the contrary, Moroccan civil society and the global
development community have established a strong record in the last several
years in pushing for judicial reforms designed to increase the competence and
independence of judges. And the Moroccan government, headed by the King, has
embraced some but not all of these reforms. In April 2004, King Mohammed VI
delivered a speech in which he stressed the importance of judicial independence
from executive or legislative pressure in rendering decisions on constitutional
matters. Again in August 2009, in a speech commemorating the 56th anniversary
of the 1953 Revolution, the King voiced support for developing an overall plan
to reform the Moroccan judiciary, including strengthening the judiciary`s
guarantee of independence, modernizing the judiciary’s legal framework, raising
administrative and training standards, improving the judiciary`s efficiency,
and promulgating ethical standards for judges. Unfortunately, while
significant advances have taken place in some of these areas, frustration has
grown with the slow pace of a structural and functional shift to judicial
independence.
One of the many tests for the success of Morocco’s Arab Spring, therefore, is not whether the King will make continued vague promises to strengthen judicial independence, but whether concrete steps will be taken in that direction. For a number of reasons, the ability of Morocco to embrace judicial independence will turn on the success of the greater democratic movement, and ultimately on the willingness of the King to move towards constitutional and democratic limitations on his monarchy. The likelihood of this outcome in the near term is slight, although continued empowerment of civil society groups and improved education, training and ethics guidelines for judges have the possibility to advance judicial independence, especially if coupled with constitutional and legal reforms necessary to enable judges to enforce those norms without fear of reprisal. Empowering civil society organizations and judges in Morocco thus continues to be one of the essential strategies in building momentum for grassroots political change. For example, in an early April 2011 policy address, World Bank President Robert Zoellick said the Bank would not only promote institutional reforms to encourage further reform and development in Morocco, but would also look into providing more support for civil society as a way of making government more accountable to people.
Part of the vexing problem in Morocco is its tangible potential as a stable political and economic force in the region and the success of civil society organizations under the current regime. The King and the Minister of Justice have openly embraced many judicial reform initiatives, seen as critical to improve the economic stability of the country and its attractiveness to international investment and business. Yet at the same time, this openness to legal and judicial reform takes place in a narrow field of potential rule of law projects that do not threaten the balance of power in Morocco. In a prescient 2006 paper by Marina Ottaway and Meredith Riley of the Carnegie Endowment for International Peace entitled From Top Down Reform to Democratic Transition?, the authors write that
. . . reform appears to be driven by a quest for modernization, not for popular participation and government accountability. To date, there is no indication that Morocco is becoming a democratic country in which power resides in institutions accountable to the electorate . . . . Thus, unless the power of the king is curtailed and counterbalanced by that of institutions over which he has no control, talk of democratization in Morocco is moot. . . . The real question is whether the reforms enacted so far make further change inevitable and whether the balance of political forces that exists in the country today can force the king to accept limits on his power, leading in the foreseeable future to a democratic transformation.
Similarly, over a decade ago in 2001, Dr. Nathan J. Brown, in a report entitled Mechanisms of Accountability in Arab Governance: The Present and Future of Judiciaries and Parliaments in the Arab World (prepared for the UNDP Programme on Governance in the Arab Region) wrote that while Mohammed VI has used his power to improve human rights, to advance the cause of women’s rights, to combat corruption, and to allow for reconciliation of past human rights violations, he has not been open to genuine political participation, “and even less to increase the capability of institutions that could check imbalances of power.” As a result, Dr. Brown found, civil society organizations have done impressive work in their respective areas, but only where they have worked towards goals supported by the monarchy and the international community. Civil society groups, Dr. Brown warns, cannot stand in for political parties in forcing the King to open the way to a democratic process.
Without a true democratic transformation, therefore, full judicial independence may remain inchoate in Morocco. This is not to suggest that movement towards judicial independence in Morocco must resemble the structure of judicial independence adopted in western democracies. On the contrary, as described by Justice Adel Omar Sherif of the Egyptian Constitutional Court and Nathan J. Brown in their September 2002 article Judicial Independence in the Arab World, given the diversity of legal and political orders in the Arab world, judicial independence may be difficult to translate into a standard practice. As the authors state, judiciaries and judicial administration in the Arab world reflect the confluence of Islamic and civil law traditions (and some common law influence as well), each set in the framework of presidential systems or monarchies. Moreover, the technical aspects of securing judicial independence are varied even in mature democracies. For example, in terms of judicial selection procedures, many countries insulate judges from political pressures by having them selected by non-political bodies rather than through the political processes used in the United States. Other countries may view judicial independence not as relative to the method of selection, but as relative to the independence of individual judges once in office, or as relative to the administration and competence of the judiciary as a whole.
If, as Justice Sherif and Dr. Brown describe, the three primary goals of judicial independence are the protection of human rights, the maintenance of political stability, and the development of a strong economy, judicial reforms should be realistically tailored to these ends based on the groundwork that has been laid in the past decade by the international development community and Moroccan civil society. Pursuing tangible judicial independence initiatives based on the three goals enunciated by Justice Sherif and Dr. Brown is also consistent with Morocco’s future political and economic interests as its works towards achieving the goals set forth in the European Neighbourhood Policy. The EU-Morocco Association Agreement, which entered into force in March 2000, forms the legal basis of EU-Morocco relations, and also emphasizes the importance of human rights, democratic principles and economic freedom.
To date, however, most of Morocco’s moves towards judicial independence have served the needs of developing the economy rather than furthering the protection of human rights and political stability. An independent judiciary serves the needs of a country’s economy by providing litigants with confidence that legal rules will be understood and followed, that cases will be resolved expeditiously, that procedures and trials are fair, and that corruption and political pressure do not affect judicial outcomes. Towards these goals, Morocco has been a leader in the region, although much work continues to be done. Hassania, the Moroccan judges’ association, with assistance from the ABA Rule of Law Initiative, has developed a Charter of Judicial Ethics and continuing efforts have been undertaken to train judges on the new rules and devise methods for their enforcement.
To complement newly enacted legal and regulatory frameworks for banking, securities, and modern accounting standards (motivated by the EU-Morocco Association Agreement), Morocco has created specialized courts, administrative tribunals and commercial tribunals, administrative appeal courts, and commercial appeal courts. And to ensure a competent judiciary, Morocco has established an independent judicial training institution and the country will continue to receive support from USAID in the short term to improve training and professionalization in the justice sector. For the longer term, USAID has also recommended assistance to support further compliance with the Charters of Ethics, development of human resource management systems, the creation of mentoring programs for judges, and technical assistance to enhance procedural operations and improve the capacities of the court system. The Euro-Mediterranean Partnership Programme has also provided significant assistance in improvements to court infrastructure and equipment.
Despite these improvements, the World Bank has reported that delays in trials and weak execution of judgments have had a broad negative impact on the perception of the judicial system, which undermines the judiciary’s ability to contribute to the economic development of Morocco. Indeed, according to the World Bank’s Doing Business 2011 index, Morocco is ranked No 106 out of 183 countries in the “enforcing contracts” indicator. There is also a widely held perception that corruption is common (the most recent Transparency International Corruption Perception Index (CPI) for Morocco was 3.3/10). Other problems in the commercial litigation area include lack of transparency, competency of the judges, and poor case management. A proposed World Bank Project for 2011 would dedicate resources to projects within the Ministry of Justice and the Legal Training Institute to improve public trust and confidence in the judicial system through implementing new approaches in legal aid, management of cases, use of human capacities, court functioning, financial/human resources management and project management.
While the King and through him, the Ministry of Justice, have embraced these changes as a vehicle towards continued economic development, the question remains whether these projects will have a spillover effect into areas that may improve judicial independence and competence when it comes to human rights and political cases presented to the Moroccan courts. Private litigation obviously does not implicate the accountability of government actors or the balance of power in Morocco. Looking to the two other goals of judicial independence – protection of human rights and the maintenance of political stability – the Arab Spring has the greatest opportunities (and roadblocks) in securing real change.
For Morocco, therefore, the future of judicial independence to protect human rights and maintain political stability depends not only on continued empowerment of civil society (although this is crucial to developing sustained democratic pressure), but on actual democratic reform that infuses some form of checks and balances into the legal order. Once the contours of accountability are more visible, the legal and regulatory framework to secure judicial independence can be better ascertained. More importantly, looking only to selection procedures or administrative independence cannot substitute for a culture where judges see themselves as having an independent institutional obligation within a functioning democracy. Indeed, in the United States, administrative independence and independent training institutions, not to mention a separate physical location for the Supreme Court apart from the Capitol, are fairly recent innovations of the 20th century. And while these goals are important to achieve the structural separation that puts a public face on independence, it is the behind the scenes exchanges between politicians and judges that must be addressed through a change in legal culture and a true understanding of the role of an independent judiciary in a constitutional democracy or monarchy. Certain trappings of a modern judicial system may be necessary to attract foreign investment and serve commercial interests, but improving the legitimacy and independence of the judiciary will require far more of a cultural shift, including leadership from within the judiciary and not simply the Ministry of Justice, as an arm of the King.
Pressure resulting from civil society and the international community, especially the EU/Morocco Action plan to increase access to justice and apply international human rights norms, also improves the chances for some reforms to take place. Because of this pressure, in the past, King Mohammed VI has allowed human rights law to develop in Morocco, granting more women’s rights, reforming the family law, and allowing a reconciliation process through the Instance Équité et Réconciliation (IER) to address human rights abuses committed between 1956 and 1999. Even without a wholesale democratic transition, therefore, increasing judicial independence as a vehicle to protect human rights can be achieved through certain legal changes (assuming those changes are respected and enforced). For example, structural changes may be necessary to guarantee that political trials remain in the Moroccan civilian courts, especially as Morocco's Code of Military Justice allows military trials for civilians when the charges include "undermining external state security." The appellate process should also be revamped in these trials to panels composed of respected jurists, whose competence and independence are publicly understood.
While efforts to increase judicial independence have focused on improving commercial litigation, and to a lesser extent protecting human rights, there has been no recent historical basis for an independent judiciary in Morocco to participate in the checks and balances inherent in a constitutional democracy. Immediate reforms to increase judicial independence as a component of democratic reform, therefore, are unlikely. To hold government officials accountable to the constitution, an entirely new framework for judicial enforcement and independence must be not only adopted on paper to satisfy civil society and the international community, but must be put into practice by judges and politicians committed to long-term entrenchment of judicial power in a democratic system. In an immature democracy, as in a mature one, the political temptation to restrict judicial power from this evolution may often be irresistible.
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