Transcript Judicial independenc in Morocco

International Association of Tax Judges
2012 Assembly - Munich
The Independence of the Judiciary in Morocco:
from a Simple Authority to a Recognized
Power
Brahim Zaim
President of chamber at the Moroccan Court of Cassation
Head of Modernization Department and Future Prospects in the said court
Acknowledgement
 At the forefront of my address I would like to convey
my gratitude to the organizers of this imminent
forum for their kind invitation.
 Without wasting much of your precious time let me
introduce a chart of the Current Moroccan legal
system. I assume it will help you follow my address
and be aware of the recent improvements of the
Moroccan Judicial System.
Structure of the Current Moroccan legal system
Court of Cassation
courts of appeal
First instance courts
Commercial Courts
of Appeal
Administrative
Courts of Appeal
Commercial courts
Administrative
Courts
Which deal
with VAT, taxes
on income,
corporate tax,
among other
non-tax issues
Outline
 Introduction:
- A. The scope of judicial independence
- B. Historical background
 Judiciary Independence Under the former constitutions
 Judiciary Independence Under the current constitution
 Conclusion
Introduction
The scope of judicial independence
 The notion of independence of judiciary, includes
both individual independence of the judges as well
as institutional independence of the courts ;
 The independence of the Judiciary depends on the
conduct of the judges, who spearhead the drive for
judicial independence.
Historical background
 Before the Islamic period the judiciary in Morocco was
fashioned by the local customs and traditions ;
 Since the Arab conquest in 789, the main basis has
been the foundations of Islamic principles ;
 Emergence of the Judicial privileges in the 18th century
through bilateral conventions with some foreign
countries ; due to the State weakness ;
Historical background ctd
 In 1912 Morocco submitted to France and Spain protectorate ;
 After its independence on March 3, 1956, Morocco has
undertaken a series of legal and judicial reforms. This move
included the creation in 1959 of the high Judicial Council aiming
the independence of the justice and elimination of diversity
and complexity of the judiciary inherited from the era of the
colonialism ;
 In 1962 the first constitution was adopted making the judiciary
as an authority independent of the legislative and executive
branches ;
 This option was also chosen by the subsequent constitutions
(1970, 1972, 1992 and 1996).
Historical background ctd
 The judicature provisions in all the above constitutions
didn’t entirely regulate the judicial, so they gave to the
executive and legislative opportunity to intervene
through the bills and resolutions, or by proposed laws.
Historical background ctd
 Constitutional amendments passed in 2011 upgrade
the judiciary to an independent power and give it
independence from the Ministry of Justice (article 107 of
the constitution).
Comparative table of constitutions
regarding the judicial Independence
Constitutions
of :
1962
1970
1972
1992
1996
Judicial
Authority
Constitution
of :
2011
Judicial
Power
Judiciary Independence in the Previous
Constitutions
Appointement
 The appointment is done primarily through a competitive
process followed by 2 years training at the High Judicial
Institute and terminated by a graduation exam ;
 Only graduates from the law school can enter this Institute,
but the Judiciary is also open directly to qualified Jurists, law
professors, attorneys and some officers.
Appointement ctd
 The applicants who pass the entrance examination are
appointed as attached judges by decision of the Minister of
Justice (art. 6) ;
 After two years of training, they are appointed by the King
through a Dahir (a Royal Decree), upon the proposal of the
High Judicial Council (art. 7) ;
 The (Moj) controls the whole appointment procedure, from
the entrance examination to the appointment : it determines
the conditions for admission to the competition, test
programs, grades, the examination schedule, scoring and jury
members (art. 5 of the law of 1974).
Mandate
 The Minister of justice can also delegate a magistrate
to fill the position of a judge, investigative judge or
public prosecutor for a term of 3 months renewable
once with the consent of the concerned magistrate.
Security of tenure
 The judges have been given the security of the tenure.
Once appointed, they continue to remain in office till
they reach the age of retirement (that is 60 years for
both the judges of the High Court and the lower Courts);
 They cannot be removed from office except by judicial
council, and that, too, on the ground of proven
misbehavior and/or incapacity.
Promotion
 Each year, a list of judges who are eligible for
promotion is established by the (Moj) ;
 The High Judicial Council examines this list and
takes the final decision.
The disciplinary process
 The whole disciplinary proceedings falls under the
jurisdiction of the (Moj), he is empowered to investigate
proceedings against judges, examine their cases ;
 The Judicial Council is virtually absent from this disciplinary
proceedings taken against judges ;
 The (Moj) informs the Judicial Council on the misconducts
alleged against the judge, and nominates, after
consultation with the members of the council appointed by
the law, a reporter who must be of a higher position than
the offending judge.
The disciplinary process ctd
 The Judicial Inspection Department in charge of the
investigation on the issues raised against the judges, is
under the authority of the (Moj) ;
 The judge may be removed from office by a decision of
the (Moj) if he is subject of a penal prosecution or
responsible for ​a serious misconduct ;
 the (Moj) can also take first degree disciplinary measure
against the judges as shown in the following slide :
First degree sanctions are decided by the (Moj) such
as :
Sanctions
– warning ;
– Formal warning ;
– Postponement of promotion for less
than 2 years ;
– Removal from the list of aptitude
for promotion.
Accountability
 The law also requires judges to declare their assets
or to disclose personal assets and liabilities as well
as, if possible, those of their spouses or their minor
children (Assets Declaration Law of 2008) ;
 This Financial disclosure regime may begin to impart
a greater sense of accountability.
Accountability ctd
 A Moroccan judges’ association (Hassania) was created in
1995 with the cooperation of the American Bar Association.
It has developed a Code of Judicial ethic inspired by
Bangalore Principles and the Riad Charter ;
 Continuing efforts have been undertaken to train judges on
the new guidelines aiming at consolidating accountability.
High Judicial Council (HJC)
 The High judicial council is chaired by the king, with
the (Moj) as vice-chair of the body ;
 It is headquartered at the Ministry of Justice where it
holds its meetings ;
 The High judicial council has only a consultative role.
Other roles of Minister of Justice
 the (Moj) has the authority to oversight courts ;
 the (Moj) is the President of the Board of Directors of
The High Institute of the Magistracy.
Other roles of Minister of Justice
Cdt
 He takes, within the realm of the law, decisions on
retirement or termination of the function of the magistrates,
under the conditions set out in retirement legislation ;
 He may extends the retirement age limit by Dahir (a Royal
Decree) for a period of 2 years, renewable twice for the
same period after consultation with the HJC. He is allowed
to do it in principle if it is proven that such decision serves
the best interest of the office.
Summary Table
Under Previous Constitutions
ATTRIBUTIONS
Appointement
Selection of “Attached Judged”
through a competitive examination :
 The government determines the
conditions of admission, the test
programs, their scores and the
composition of the jury ;
 The winners of the competitive
examination attend courses
program and follow training
particularly in the courts. The
content of the curricula are
decided by the (Moj).
The judges are appointed by Dahir
(Law) upon proposal of the HJC.
Promotion
A judge cannot be
promoted unless his
name is on the
eligibility list which is
draw up annually by
the (Moj) ;
The council is only
informed about such
list.
Discipline
The (Moj)
initiates the
proceedings
against judges,
examines their
cases, and
enforces the
sanctions taken
against them.
Financial and
administrative
matters
The budget for the
Judiciary including the
High Judicial Council, is
managed by the (Moj) ;
The HJC does not have its
own offices, so it meets
at the Ministry of Justice.
Judiciary Independence Under Current
Constitution
Composition of the Superior Council of
Judicial Power
- The First President of the Court of Cassation, as ExecutivePresident;
- The General Prosecutor of the Court of Cassation;
- The President of the First Chamber of the Court of Cassation;
- Four judges of Appeal elected by their colleagues of the Courts
of Appeal
Chaired by the King
- Six judges of the first instance courts elected by their
colleagues in the same courts.
- Women judges elected among the ten judges above in
proportion to their presence in the judiciary;
- The Mediator;
- The President of the National Human Rights Council;
- Five persons appointed by the King (known
for their competence,
impartiality, and probity as well as for their outstanding contribution to the
independence of the judiciary and to the rule of law. One of them proposed by the
Secretary General of the Highe Ulema Council): [Ulema Muslim scholars].
The attributions of Superior Council of
Judicial Power
 Insurance of the implementation of the guarantees
granted to judges, especially with respect to their
independence, appointment, promotion, retirement
and discipline (art 113).
The Superior Council of Judicial Power
Ctd
 Its individual decisions may be challenged in high court,
on the ground of abuse of power ;
 It draws up, on its own initiative, reports on the state of
justice and the judiciary, and makes appropriate
recommendations on the subject ;
 It gives at the request of the King, the Government or
Parliament, a detailed opinion on any matter related to
justice, subject to observing the principle of separation of
powers.
The Superior Council of Judicial Power Ctd
 Financially and administratively autonomy ;
 An organic law shall determine matters relating to its
election, organization and functioning.
The disciplinary process
 An organic law may determine matters related
to disciplinary procedure.
The Judge protection
 Any interference regarding cases filed with court is
prohibited ;
 A judge may not, in his judicial function, receive
injunctions or instructions, nor shall he be subjected to
any pressure ;
 Whenever he deems his independence threatened, the
judge shall report thereon to the High Council of the
Judicial Power ;
 Any person who attempts to influence a judge in an
unlawful manner shall be punishable by law (Art.109).
Judge obligations
 Any failure by a judge to fulfill his obligations with
respect to independence and impartiality shall be
considered a serious professional misconduct,
without prejudice to any possible criminal
prosecution.
Statute of judges
 Statute of judges
(art.112) as well as the
management of judges careers (art.116) shall be
determined by an organic law.
Freedom of expression and association
 Judges shall enjoy freedom of expression, without prejudice to
the duty to observe discretion and judicial ethical standards ;
 Judges may belong to associations or set up professional
associations, but
they must observe the obligation of
impartiality and judicial independence and comply with the
relevant legal provisions ;
 They shall not join political parties or trade unions (Art.111).
Public prosecutors
 As for matters concerning public prosecutors, the
Higher Council of the Judicial Power shall take into
consideration the evaluation reports prepared by the
higher authority concerned (Art.116).
ATTRIBUTIONS
Under Current Constitution
Freedom of expression and
association
Judges may belong to associations
or set up professional associations.
protection
The judge may not, in its judicial
function, receive orders or
instructions, and not be subject
to any pressure.
The Superior Council of
Judicial Power
It has administrative and
financial autonomy;
Ensure the implementation of
the guarantees granted to
judges, especially with
respect to their
independence, appointment,
promotion, retirement and
discipline ;
Its composition is widening to
include other high level
personalities from civil
society.
Conclusion
Conclusions and recommendations
 I think it is imperative that the new organic laws and the
statute for judges must be in conformity with the international
standards related to the independence and impartiality of the
judiciary, including the standards related to public prosecutors.
Conclusions and recommendations Cdt
 The magistracy in Morocco forms one single body which
including both judges and public prosecutors serving in all the
courts of the Kingdom, therefore the prosecutors are, and
should be considered, full-fledged members of the magistracy ;
 Consequently they need to be able to operate without
pressure from the executive branch. The current subordination
of the Public Prosecutor to the (Moj), undermines the principle
of the independence of the Public Prosecution.
Conclusions and recommendations Cdt
 Supervision of the public prosecutors should be within the
jurisdiction of the general prosecutor at the Cassation Court.
He or she is the one who should be able to guide their work.
Such guidance does not exclude the right of the members of
the government, including the Minister of Justice, to refer to
the General Prosecutor any issue in order to assess if there is
a violation of criminal laws.
Conclusions and recommendations Cdt
 The salaries and pensions of the Judges and prosecutors
should be adequate and regularly adjusted according to the
cost of living in the country. In this respect, it might be useful
to establish a commission on judicial compensation following
the good practice of some developed countries.
Conclusions and recommendations Cdt
 The office and task of judicial inspection should be a prerogative
of the Superior Judicial Council not of the Ministry of Justice ;
 The profile of the candidates to enter the magistracy needs to
be reviewed. Holding a Master in Law is no longer sufficient to
fill such position ;

There is a need for the involvement of the Judicial Council in
the organization and supervision of the training for the judges.
Its involvement is particularly important in the design of
programs and curricula implemented by the higher institutes for
the magistracy.
Thank You for Your Attention
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