Introduction to the Moroccan Legal System

By Dahmène Touchent

Dahmène Touchent received his Diplôme d’études supérieures from the National Financial Institute, Algiers, the Master of Law degree from Paris XIII University, and another degree in export law from Paris V University. Dahmène Touchent is “Chargé d’enseignement” for Economics and Law at the European Institute of Corporatism (INEE, Paris, 1999-2005); since 2002 he has also been “Chargé d’enseignement” for Labour Law and commercial Law at the University of Paris XIII, France. He is the Manager of the Algerian legal website, Lexalgeria. He teaches law and economics courses to first-years and upper-class students at Institut européen des entreprises and commercial and social law at University of Paris XIII.  He has written on the law of Northern African (Algeria, Morocco and Tunisia), as well as on French labour and consumer law. Dahmène is the author of Algerian Law Guide, and Guide to Legal Research in Mali.

Update to an article previously published on LLRX.com, on May 15, 2002

http://www.llrx.com/features/morocco.htm

Published April 2006
READ THE UPDATE!

Introduction

Morocco is a constitutional, democratic and social monarchy. The King is the Supreme Representative of the Nation and the Symbol of the unity thereof. He is the guarantor of the perpetuation and the continuity of the State. As Defender of the Faith, he ensures the respect for the Constitution. He is the Protector of the rights and liberties of the citizens, social groups and organizations.

Morocco is bounded to the west by the Atlantic Ocean (2 934 km of coasts), in the north by the Straits of Gibraltar and the Mediterranean (512 km of coasts) and is separated from the European continent by only 14 km of sea. It has common terrestrial borders with Algeria (1,350 km), Mauritania (650 km) and Spain (12 km) (Ceuta and Melilla).

The native people of Morocco are the Berbers, an ancient race who, throughout history, have seen their country invaded by a succession of foreign powers (Phoenicians, Carthaginians, Vandals, Byzantium, Portuguese, Spanish, and French).

After 44 years as a French protectorate, Independence was acquired in 1956. Moroccan law is based on French Civil Law and a combination of Muslim and Jewish traditions.

A- The Executive Power: the Government

The Government is composed of the Prime Minister and Ministers. The Government is accountable to the King and the Parliament.

1. The Prime Minister

After the appointment of the Cabinet members by the King, the Prime Minister submits the program (about national activity, namely in economic, social, cultural and foreign affairs) to each one of the two Houses of Parliament. At the House of Representatives, the program must be put to the vote.

Under the Prime Minister’s responsibility, the Government ensures the execution of the laws. All public facilities are placed at the Government’s disposal.

The Prime Minister has the right to introduce bills, exercise the administrative powers and delegate some of his powers to the Ministers.

The Prime Minister is responsible for the co-ordination of ministerial activities. Before any relevant decision is taken, the Cabinet is notified of the following:

  • matters related to general policies of the State;
  • declaration of martial law
  • declaration of war;
  • requesting confidence from the House of representatives to allow the Government to carry out their responsibilities further;
  • draft bills, before they are brought to one of the two Houses;
  • statutory decrees
  • draft plan
  • projects for revising this Constitution

2. Ministers

B- The Legislative Power: Parliament

The Parliament is composed of two Houses: the House of Representatives and the House of Counselors.

The King presides over the opening of parliament sessions which hold its meetings during two sessions every year. The first session begin on the second Friday in October, the second session begin on the second Friday in April.

The Parliament may be convened in special session by two ways:

  • by the request of the absolute majority of the members of one of the two Houses
  • by decree.

During parliamentary sessions, no Member of Parliament can be subject to prosecution or arrest for criminal charges or felonies without permission from the House.

Outside parliamentary sessions, no Member of Parliament can be subject to arrest without permission from the Board of the House.

The imprisonment or prosecution of a Member of Parliament can be suspended if so required by the House, except in cases of:

  • flagrant offence
  • authorized prosecution
  • final judgment

1. House of Representatives

Members of the House of Representatives are elected for a six-year term by direct universal suffrage. The legal legislative period finish at the opening of the October session in the fifth year following the election of the House.

An organic law set out the rules of:

  • The number of representatives
  • the voting system
  • eligibility requirements
  • incompatibility cases
  • legal contentions concerning elections.

The President is elected first at the beginning of the legislative period, then at the April session in the third year of the said period and for the remaining portion thereof.

No Member of Parliament can be prosecuted, arrested, put into custody or brought to trial as a result of expressing opinions or casting a vote while exercising office functions, except when the opinions expressed are injurious to the monarchical system and the religion of Islam or derogatory to the respect owed to the king.

2. The House of Counselors

For 3/5 of its membership, the House of Counselors consist of members elected in each region by electoral colleges made up of elected members of trade chambers as well as members elected at the national level by an electoral college consisting of wage-earners’ representatives.

Members of the House of Counselors are elected for a nine-year term. One third of the House is renewed every three years. In the first and second renewal operations, seats are drawn by lot.

The President of the House of Counselors and members of the Board are elected at the October session during each renewal operation in the House. Members of the Board are elected in proportion to the size of their respective groups.

Upon the setting up of the first House of Counselors or upon its election following the dissolution of the preceding House, the President and the members of the Board are elected at the beginning of the session which follows the election; they seek renewal of their term of office at the beginning of the October session during each renewal operation in the House.

An organic law sets out:

  • The number of counselors
  • the voting system
  • the number of members to be elected by each electoral college
  • the distribution of seats according to regions
  • eligibility requirements
  • incompatibility cases
  • allotting procedures mentioned above
  • legal contentions concerning elections

C. The Judicial Power

Morocco’s constitution proclaims that “the judicial authority is independent from the legislative power and the executive power”.

Magistrates are appointed by Dahir on the proposal of the High Council of the Magistracy.

The different courts are:

1. Jurisdictions of the 1st degree

  • First Instance Courts

They are competent for:

  • all civil affairs relevant to the personal or inheritance
  • commercial or social statute,
  • in a first or last instance or in appeal.

  • Trade Courts

They rule the following:

  • Cases between tradesmen, involving commercial activities ;
  • Disputes between associates of a trade company ;
  • Cases related to trade effects ;
  • Disputes related to business
  • Trade courts are competent to judge, on first and last instances, cases that do not exceed 9,000 Dirham (0,09 $), in value and in the first instance all requests that exceed this value.

  • Communal and District Courts

Communal and District judges are competent to adjudicate all personal estate actions brought against individuals who reside under their jurisdiction. The value of claims must be less than 1000 Dirham (0,09 $).

2. Jurisdictions of the 2nd degree: the courts of appeals

They try criminal cases, appeals against judgments passed by Tribunals of Original Jurisdiction and appeals against rulings made by the latter’s presiding judges.

3. Supreme Court

The Supreme Court is competent for:

  • Appeals for cassation of sentences without appeal decided by anyone of the kingdom’s courts.
  • Appeals for cancellation of the Prime Minister’s decisions.
  • Jurisdiction disputes arising among courts above which there is no high court other than the Supreme Court.
  • Suits for bias filed against magistrates and courts with the exception of the Supreme Court.
  • Proceedings aimed at judge disqualifying because of likelihood of bias.
  • Disqualifying for reasons of public security or for the sake of a good administration of justice.

4. Administrative courts

Administrative courts are competent to make initial rulings on:

  • claims for cancellation of acts filed against administrative authorities,
  • disputes related to administrative contracts
  • claims for compensation of prejudice caused by public entities’ acts or activities.
  • to set up the consistency of administrative acts with legal provisions.

5. Other jurisdictions

  • Special Court of Justice

It is competent for cases (corruption, embezzlement….) in which magistrates or Government employees are involved.

  • High Court

It is competent for offences or crimes committed by government members during the discharge of their functions. They may be indicted by the two Houses of Parliament and referred to the High Court of Justice for trial.

  • The Standing Tribunal of the Royal Armed Forces:

It is competent for cases for:

  • unauthorized carrying of firearms
  • offences committed by soldiers.
  • The Audit Court

The Audit Court is responsible for conducting overall supervision of the implementation of the budget. It ensures the sound conduct of receipt and expenditure operations and evaluate the management of agencies placed under its control by law. When necessary, The Audit Courts take action against violation of the rules governing such operations. The Audit Courts provide assistance to Parliament and the government in its fields of competence

D. Other authorities

1. The Constitutional Council

The Constitutional Council is made up of six members appointed by the King for a nine -year period, six other members are appointed for the same period, half of them by the President of the House of Representatives and the other half by the President of the House of Counselors. A third of each category of members is renewed every three years.

Before their promulgation, organic laws and the Rules of Procedure of each House are submitted to the Constitutional Council.

The King, the Prime Minister, the President of the House of Representatives, the President of the House of Counselors or one-fourth of the members making up one House or the other can referred to the Constitutional Council before promulgation of the law.

Also, the Constitutional council decides on the validity of the election of the Members of Parliament and that of referendum operations.

The Constitutional Council have one month to decide upon the special instances. In case of emergency, the deadline is reduced to eight days if so requested by the Government.

Decisions of the Constitutional Council are imposed upon all public authorities, administrative and judicial sectors. No unconstitutional provisions are promulgated or implemented.

2. The economic and social council

The Economic and Social Council may be consulted by the Government, as well as the House of Representatives and the House of Counselors on all matters of economic or social nature. It shall give its opinion on the general guidelines pertaining to the national economy and training programmes.

E. Administrative Set-up

The administration in the Kingdom is organized by two assemblies: local communities and local assemblies. The assemblies have the following competence:

  • Determination of modes and mechanisms for the collection of duties and taxes destined for the prefecture or the province Regional development programs:
  • Industrial decentralization projects.
  • Rules of establishment for provincial and prefectoral public services.
  • The classification, maintenance and extension of roads.

F. Other (Semi) Governmental Institutions

G. Law faculties

H. Legislation (Laws, Jurisprudence and Treaties)

Comercial Code

  • Cabinet Conseil CCMLA
  • ACTA, Casablanca

I. Law Libraries

J. Literature (Textbooks on Civil Law, Administrative Constitutional Law, Criminal Law)

Public Law

Michel BOURLEY, Droit Public Marocain, éditions la porte

Constitutional Law

Cubertafond, Bernard, Le Système politique marocain, L’harmattan, Paris

Administrative Law

– Garagnon, Jean et Rousset, Michel, Droit administratif marocain, Editions La Porte

– Fathia Sahli et Serge Regourd, Les politiques de décentralisation : études comparées franco-marocaines, Presses universitaires de Perpignan

Status (Law):

– Collective book, Le code du statut personnel marocain (la Moudawwna), Algiers university

– Colomer, André, le Droit Musulman

– Pierre GUILHO, « La nationalité marocaine », éd. Laporte, Librairie de Médicis, 1961.

International Law:

– Ouazzani Chahdi, Hassan, La pratique marocaine du droit des traites, Libr. générale de droit et de jurisprudence, LGDJ

– Rodriguez-Aguilera, Cesareo, Manuel de droit marocain, Librairie générale de droit et de jurisprudence, LGDJ.

Justice

– François Paul Blanc, Rédouane Boujemaa, Olivier Devaux et Amal Mourji, La justice au Maroc (Quelques jalons, de Hassan I à Hassan II), Presses universitaires de Perpignan

Trade Law

– François-Paul Blanc et Ahmed Trachen, Le droit marocain des fraudes sur les marchandises et son adaptation aux marchés extérieurs, Presses universitaires de Perpignan

Export-import law

-Kacem Taj, guide pratique en commerce international,

Sport Law :

– Abdallah Boudahrain, Le droit du sport au Maroc,