International Association of Tax Judges2012 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

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.

At the forefront of my address I would like to convey my gratitude to the organizers of this imminent forum for their kind invitation.

Court of Cassation

courts of appealCommercial Courts

of AppealAdministrative

Courts of Appeal

First instance courts Commercial courts Administrative Courts

Which deal with VAT, taxes

on income, corporate tax, among other

non-tax issues

Structure of the Current Moroccan legal system

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

Considering the

lack of

an autonomous

and

independent entity to manage all judicial matters, it

was almost inevitable under the umbrella of the

previous constitutions to grant this management to the

Minister of Justice (Moj), the law also allows the (Moj)

to play a different role in the judicial system.

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 :

– warning ;– Formal warning ;– Postponement of promotion for less

than 2 years ;– Removal from the list of aptitude

for promotion.

Sanctions

First degree sanctions are decided by the (Moj) such as :

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.

Finally let me add that according to the law the

Minister of Justice has several other prerogatives,

notably the following:

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 JusticeCdt

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.

ATTRIBUTIONS

Appointement Promotion DisciplineFinancial and

administrative matters

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.

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.

The (Moj) initiates the proceedings against judges, examines their cases, and enforces the sanctions taken against them.

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.

Summary TableUnder Previous Constitutions

Judiciary Independence Under Current Constitution

The current constitution created an independent judiciary power

in accordance with the international standards. It removed the

membership of the Minister of Justice from the HJC, in addition it

adopted another name for the HJC (The Superior Council of the

Judicial Power) and widened its composition, notably by including

members belonging to other sectors of the society, yet organic

laws will further detail its prerogatives, that means that the whole

configuration of this Superior Council will only be known after the

enactment of those laws.

Composition of the Superior Council of Judicial Power

Chaired by the King

- The First President of the Court of Cassation, as Executive-President;

- The General Prosecutor of the Court of Cassation; - The President of the First Chamber of the Court of Cassation;

- 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].

- Four judges of Appeal elected by their colleagues of the Courts of Appeal

- Six judges of the first instance courts elected by their colleagues in the same courts.

- The Mediator;

- Women judges elected among the ten judges above in proportion to their presence in the judiciary;

- The President of the National Human Rights Council;

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).

ATTRIBUTIONSUnder Current Constitution

Freedom of expression and association protection The Superior Council of

Judicial Power

Judges may belong to associations or set up professional associations. The judge may not, in its judicial

function, receive orders or instructions, and not be subject to any pressure.

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

An important step was taken by establishing, on May 8, 2012, the

High Instance National Dialogue on judicial reform; which is a forum

including representatives of all the stakeholders concerned by the

judicial reform. It was tasked to provide advice on the substance of

the organic law that will oversee the work of the judiciary in general

and the High Judicial Council in particular. Yet having been judge for

more than 30 years at all levels of the judiciary I would like to put

forward few suggestions :

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.

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

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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