The Moroccan Constitution: A far-sighted step toward real parliamentary democracy
Giuliano Amato 26 July 2011

This indicates both the far-sightedness of a king anticipating matters by forestalling street protests and casting himself as the leading player and not the victim of change, as well as his capability to act in agreement with the most important political forces in his country.

Of course the results achieved so far are still distant from the European and non-European parliamentary democracies we have come to know in modern times. However, in regard to the process implemented by the king in the 19th century, far greater progress has been made: Morocco now stands at an intermediate point between Old Europe’s parliamentary regimes and their point of arrival. Furthermore, considering that this process which has taken the country to this intermediate point has occurred over a very small number of years, at this rate, the Kingdom of Morocco will soon become a constitutional monarchy not too different from the British one. I must reiterate that we are still only halfway there. However, in comparison to the 19th century’s octroi constitutions, a difference becomes instantly apparent: octroi constitutions were neither imposed nor conceded by the king to the nation, but voted on by the electorate, with the philosophy that sovereignty belongs to the nation and not to the king. This is of the utmost importance, because the king is perceived not as the source of sovereignty, but as one of the highest constitutional institutions, similar to the head of state in any constitutional regime.

To this must be added that the characterization of this form as constitutional, in which the sovereign’s power is set within a system of powers and not above these powers, is strengthened by the explicit adoption of a division of power. This division is similar to the American one, both as a horizontal division of the state’s powers and as a vertical division of the powers conferred to the state and to the government’s decentralized institutions. The constitutional system envisages a form of regionalism that includes a distribution of power.

Of course, this description still depicts that typical dualism that characterized 19th century constitutional monarchies: a formula involving a double trust that those governing must receive both from parliament and from the king, a situation typical of transitional times. That is why I say that Morocco is halfway there. In Morocco, there is also a power to dissolve parliament greater than that currently held by the majority of western heads of state, who are far less involved in the political process than the king of Morocco is permitted to be by the constitution.

On the other hand, the fact that the king must appoint a prime minister who belongs to the party that receives the most votes. The king thus does not have complete freedom to choose his prime minister, and this paves the way for greater importance to be attributed to parliament’s approval in the future.

Another important point concerns judiciary power and to what extent it will manage to be really independent. In the democracies that developed in Old Europe, it took decades for the judiciary to establish itself as an independent entity. The Moroccan constitution appears to contain principles that belong to the constitutions of more mature democracies, such as the affirmation of this independence and of the immovability of judges. It must be certain, however, that these provisions will be effective and be applied.

The real issue, however, is that of the freedom of citizens in all senses, and in particular religious freedom, since this is a country where the majority of people are Muslim. Islam is the state religion, as set out in a rather laboriously worded article (number 3), reiterating that Islam is the religion of this state that also guarantees religious freedom.

On this point it is necessary to clarify a number of issues. Acknowledging ethnic-religious diversity as an element of the Moroccan nation is positive, and clearly strengthens the role played by minorities.

Also, it is important to note that state religion has been preserved in countries in which freedom of worship for denominations that differ from the state religion is certainly respected. One such example is Great Britain, where the head of state is also the leader of the Anglican Church, which does not restrict the freedom of others.

There is, however, a drive that may come from within the Muslim religion, with its rules and expectations, regarding a not entirely full religious freedom for others. This is a phenomenon that would not consist of laws, but rather of what Tocqueville called the ‘tyranny of the majority.’ What is happening in many countries, and with particular clarity in modern Turkey, where regardless of the still strongly Kemalist legislative system, society is pressing above all against women, demanding they return to the past.

It will have to be seen whether this pressure will be applied. I sympathise with those Muslim scholars who doubt that the intrinsic pluralism of Islam, which has no hierarchical structure, is compatible with Islam being a state religion. This is because being a state religion requires principles and rules that are passed from the religion to the state.

But then, what are the implications of state authorities acquiring that interpretative authority that no Imam is permitted to impose on others? This is not criticism, but an important question that the future will help us answer.

In conclusion, the path embarked upon by Muhammed VI will certainly lead to a parliamentary democracy, and he has done this with greater vigour than has been seen in countries in which uprisings have taken place.

Translated by Francesca Simmons

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