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Publications: Legislature
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by Dr. Azza Wehbe The Moroccan Case: The Field and Limits of the Moroccan Parliament’s Jurisdictions Despite the diversity of jurisdictions permissible to the Moroccan parliament (legislative, fiscal, supervisory, constituent, diplomatic), the content and procedures of practicing these jurisdictions is organized in a way that makes them forfeit much of their value and effectiveness, making the parliament subject to the executive power. The focus in the following, however, is on the limits of the Moroccan parliament’s legislative power, proceeding from the following:
1- The First Element: The Legislative Power’s Field of Work
On returning to Chapter 46 of the current constitution, we find that the parliament’s legislative power remains notably constricted. The constitution restricts the parliament’s power to do the following:
If we compare the field of law as specified by the Moroccan constitution to the field of law in the French constitution, which some researchers consider already contracted , it becomes evident that the field of law in the 1996 constitution is restricted in a near-exclusive way though it states that the parliament has the right to extend and divide its legislative power through regulatory laws. Yet this does not eliminate the existence of relative expansion of the Moroccan parliament’s privileges based on last constitutional amendments, which have been demanded by the Democratic Group , whether in the 1991 memorandum or the 1996 memorandum, both addressed to the king. The most important of these demands were the following:
Yet despite the fact that the capacity for final judgment remains the parliament’s province, the two councils are equal in their right to propose laws and draft laws and can submit them to the offices of either council. The right to amendment is practiced equally by both councils. The study of draft laws and draft law proposals is made consecutively between them, and in the case of disagreement between the two councils, a mixed bipartite committee with members of both councils is formed and is assigned the task of proposing a text approved by both. Calling the government to account is a common right, and so is the supervisory petition. Thus, the new constitutional amendment puts us before two institutions possessing the same jurisdictions and characterized by a competitive spirit. As for the right to direct a notice or warning to the government, it is the province only of the Advisory Council despite its election by indirect voting .
A- The Parliament’s Practice of its Subsidiary Constituent Power
The one hundred and third chapter gives the parliament the right to take the initiative in reviewing the constitution by adhering to the following two procedures:
Yet the reviewal cannot target the government’s monarchical system and the texts related to the Islam.
B- The Legislative Rule
The draft laws and draft law proposals are referred for examination to the specialized permanent committees or temporary scrutiny committees. Discussions are made on any draft law or draft law proposal in light of the comprehensive report submitted by the referendary of the relevant committee to either of the councils. Attached to the report prior to its submittal are all the amendment draft laws submitted to the committee during discussion. Prior to discussion of the report in the council, where it is ratified or rejected in terms of its form, a sufficient number of copies of it is distributed. The report can be ratified as is or after incorporating some changes to it. The draft laws, draft law proposals, and oral questions are registered in the council’s work agenda by the president’s seminar, which consists of, other than the president, the committee presidents, group presidents, and government representatives. This seminar is held every week to examine the work agenda structure and give priority to draft laws presented by the government and draft law proposals that have been approved. Discussion begins with an inquiry to the government by the specialized minister followed by a presentation of the report prepared by the relevant committee. On discussing the proposal made by a parliament member, the discussion begins with an address by that member followed by the presentation of the relevant committee’s report and after that proceeds to the interventions of parliament members registered in the interveners’ list. The presidents’ seminar members have the right to regulate general discussion, after which the council examines the proposals and draft laws chapter by chapter and the Speaker of Parliament presents the entire draft law or proposal for being voted on. After being approved, the law is referred to the government, and the king issues an order to enforce it based on Chapter 26 of the constitution, and this occurs within 30 days of its being referred to him by the council. The voting process, which is a non-transferable personal right, is not valid except with the existence of the legal quorum stated by the by-laws. In case the existence of the legal quorum is not possible, the Speaker of Parliament adjourns the meeting for an hour, and in a succeeding meeting, the number of parliament members who attend becomes a sufficient one. Ministers have the right to attend the meetings of both councils and the meetings of its subsidiary committees and may intervene if they so wish .
2- The Second Element: The Limits of the Moroccan Parliament’s Legislative Power
The Moroccan constitution does not only limit the parliament’s powers and mention them in the context of restriction but even authorizes the process of delegating the parliament’s legislative power—narrow as it is—to the government despite the latter’s breadth of regulatory powers. In addition, the constitutional legislator did not permit the government to delegate its power to the parliament even if to achieve balance in the process of the mutual delegation of powers.
As such, the constitution has permitted the parliament to delegate its allotted legislative power to the government’s interest in two prominent cases:
The agreement stated previously is considered rejected if the second committee is unable to reach a joint decision within the deadline assigned to it or if the relevant parliamentary councils do not agree on the decision proposed to them within four days. This is in addition to the Moroccan constitution’s endorsement of the restriction of the parliament’s legislative power by constricting its jurisdictions, expanding the government’s regulatory power, and authorizing the parliament to delegate its legislative power to the government…The parliament is considered subject to the government on the level of legislative procedures since the government has absolute priority over the parliament in the legislative rule, starting from the time of discussing laws until that of approving them: - The government clearly controls the parliament’s work agenda and habitually gives priority to discussing the draft laws submitted by it and the draft law proposals approved by it, and this occurs according to the precedence and order determined by it so that it becomes difficult for the law proposal that the government does not wish to discuss to reach the general assembly. - Discussing the draft laws presented by the government relies on a first reading of the text submitted by it, regardless of the amendments made to it by the parliamentary committee.
- The government’s, and not the parliament’s, monopoly of two powers in the right to amend proposals and draft laws:
- Regulatory laws, despite their extreme importance in regulating numerous constitutional rights such as the right to hold a strike or to organize constitutional institutions (such as the parliamentary council and the advisory council, etc.), cannot be addressed except after ten days of having filed them in the parliament’s bureau. Issuing an order for enforcing them must be preceded by the constitutional council’s declaration of their compatibility with the constitution (Chapter 58).
A- Restricting the Parliament’s Legislative Power in the Fiscal Domain
This is because the parliament votes once on the equipping expenses required for completing the development plan, and this is when the plan is approved. Validation of the immediate approval of expenses continues throughout the duration of the plan. Only the government has the right to present draft laws aimed at changing the approved program. In addition to the government’s privileges in altering the fiscal program, it has the right to enter via a decree the necessary credits for the operation of public facilities and to perform the assigned function regarding them on the basis of what has been suggested in the presented fiscal plan, in order to approve it if the parliament is unable to vote on a fiscal law or if the prince has not issued an order explaining its referring to the constitutional council in accordance with Chapter 81 to examine the extent of its compatibility with the constitution. As a result, the extraction of income is conducted in accordance with the legislative and current regulatory requirements applicable to them.
One constitutional researcher concludes that the parliament’s legislative power in the fiscal domain is subject to two restrictions :
When taking Chapter 51 into consideration, another fundamental restriction applies. This consists in the fact that the proposals and amendments submitted by parliament members are rejected if their approval leads, in the fiscal law, either to decreasing government resources or making a public request or adding to an existing one. The danger of this restriction becomes evident when we realize that the government’s strict and literal adherence to this text leads to completely paralyzing parliament members’ legislative initiative for a simple reason: that every parliamentary proposal or amendment is subject to either adding to a present request or to creating a new request. In addition, parliament members’ amendments to the fiscal law by expectedly target lowering a government resource (taxes) or creating a new government request (such as preparing a draft law for example). The result is that this restriction either makes parliament members’ proposals and amendments fixed with regard to fiscal law only on transferring credits from one Item to another or makes them restricted to either approving the fiscal plan in its entirety or else rejecting it.
B- The King’s Legislative Supremacy
1- The king’s inauguration of the parliament’s two sessions: This is not merely a nominal inauguration, for the king is not merely the country’s president (that is, a constitutional monarch) but also Commander of the Faithful, which explains opening the inauguration meeting with holy Koranic verses whose message is often related to the prevailing political circumstances. Parliament members also wear the traditional dress that has become a “national costume” after the ending of the opposition’s rejection of it as an expression of the confrontation between traditional Moroccan customs and those of the contemporary opposition . What is even more important is that the constitutional monarch delivers a speech with instructions to the government and parliament aimed at shaping their legislative work. 2-The king’s right to address the parliament with a speech is not negotiable: These plans often include legislative or executive measures or urge parliament members to approve a particular draft law, making the king through them the true maker of a legislative initiative. 3- The king’s interference in the legislative rule: This interference is through his presidency of the cabinet of ministers which puts him in charge of making decisions on draft laws submitted by the government or through his constitutional right by requesting a new reading of the proposal for a law, submitted to the king’s consideration. The king also has the right in accordance with Chapter 72 to practice, next to the power entitled to him by the constitution, the power that is the parliament’s jurisdiction in the legislative field. 4- The king’s issuing of a law enforcement order: Of the most important amendments made by the 1996 constitution is the king’s issuing of a law enforcement order during the 30 days following its referral to the government after finalizing approval on it. Previous constitutions had not restricted the king with any deadline for this issuing. Thus, giving the king this discretionary power makes the law proceed from him (in the cabinet of ministers and his speech) and ultimately return to him so that he can inspect its constitutionality and determine the proper duration of its enforcement. 5- The right to an plebiscite and the right to dismiss the parliament: Chapter 69 gives the king the right to a plebiscite in accordance with a holy ordinance, regarding every draft law or proposal for a law after any of these has been given a new reading. In addition, Chapter 70 affirms that the plebiscite results are obliging to all, and thus the king may override the parliament’s power to submit a draft law or proposal for a law to the plebiscite. This jurisdiction is considered a tool that is highly effective and deterrent to the parliament since it prevents it from approving legislations that conflict with the monarchy’s interests and choices and also prevents it from rejecting laws tailored to the monarchical policy. What must be noted is the importance of the amendments made to the new constitution, which no longer adopts the automatic spontaneous solution for the parliament in case the people approve, through the plebiscite by an invitation from the king, a draft law formerly rejected by the parliament. But this amendment becomes less important if we cite the contents of Chapter 71, which gives the king the full authority, following pawn procedures, to replace the parliament. 6- The king’s exercise of the parliament’s power in the exceptionality case and the transitional case: The constitution authorizes the king to replace the parliament in exercising legislative power, either on the occasion that an exceptionality (emergency) case has been announced or during a transitional period between the constitution’s entry into enforcement and the election of a parliament (and this period may reach 10 months).
C- The Government’s Precedence over the Parliament in the Legislative Rule
D- The Legislative Yield
The above does not mean that the Moroccan parliament did not produce much that is of importance, specially in the fiscal and economic field, yet this produce remains below the required level quantitatively and qualitatively and below the level required by development. The government’s attention was mainly geared to the fiscal sector and to a lesser extent to the economic one such as plans and investment laws. Yet it is very far from the political and social field. The proposals that affect those two fields were most often rejected . With the Yussefi government as a first political government led by socialists, against the background of the first experience of competing for power not only in Morocco but in the entire Arab region, there is an unprecedented trend of tending to the political, economic (and to a lesser extent) social aspects. Except for the enforced residence of the imprisoned Abd Al-Salam Yassine, the file of political detainees in Morocco had been closed with the return of exiles, the release of prisoners, and the compensation of damages. As for the economic level, there has been a near comprehensive reconsideration of investment laws and a return to the style of economic plans. The toughest challenge remains social reform. It is what made the Moroccan Minister of Communications Mohammed Al-Araby Al-Massary confirm that “Morocco has finished with political reform even though it needs more effort, and the priority is now for social reform” .
In the absence of a detailed report on the Moroccan parliament’s (with its two chambers’) various activities, we will attempt to discuss the extent of its activity and legislative performance through the most important legislations related to two main fields:
The parliament also approved on 19 July 1992 another law by which specialized administrative courts are founded for the objections presented by citizens toward violations by the authorities . In 1993, the Moroccan parliament approved 4 international agreements related to the agreement of conquering all forms of discrimination against women, the anti-torture agreement, the children’s rights agreement, and that of laborers and their families’ rights. The first three agreements have been enforced. Yet the effectiveness and the benefit of this ratification of agreements necessarily requires adapting internal legislations to the approved international agreements. The parliament approved a regulatory draft law on the new constitutional council based on the last constitutional amendments (1992) despite the Wafaa Group’s parties’ refrain from voting due to the government’s refusal to adopt some essential amendments submitted to it, specially Article 52 of the regulatory law permitting the Minister of Internal Affairs, mayors, and governors the right to contest the elections so that the administrative power would not simultaneously be a party to defense and a judge . A discussion of the government’s third periodic report on the measures it adopted to enforce the rights recognized by the International Covenant on Civil and Political Human Rights and the development achieved in possessing these rights, is a good occasion for discussing the various existing legislations in the country and the extent of their compatibility with the session’s provisions and for exploring new aspects that require further development. These discussions inside and outside the parliament stressed the parliament’s need to take the necessary legislative measures regarding the legal texts related to the penal rule (penal procedures), the penal code, the conditions of arrest and the law of hard labor, the civic law, the law regulating commerce…to amend them and make them more compatible with the session’s requirements . Among the important legislative re-examinations is the parliament’s cancellation on 5 July 1995 of a security law issued in 1935 during the French Occupation and that punishes without specification every practice that affects public security and undermines the required respect for the government. Cancellation of this law represents a victory for public liberties and human rights because it was “characterized by extreme vagueness subject to many types of interpretations, because it permitted the occurrence of many injustices, and because it conflicted with the penal code which specifies crimes and punishments in detail” . In 1995, the parliament made two amendments to the Moroccan legal framework. The first consists in ratifying the by-laws of professional journalists. The second amendment cancels Chapter 726 of the law of obligations and contracts, which forced women to acquire the permission of their husbands when doing any paid work . As for the year 1996, the Moroccan constitutional and legal framework witnessed two important developments. The first is related to making fundamental amendments to the constitution. The second is related to publishing in the official gazette two agreements already approved by the parliament (the International Agreement for Children’s Rights and the International Agreement for Combating Torture and Other Forms of Harsh Treatment and Inhumanity); publication of these agreements would make it possible to enforce them by law. The new constitution also included reference to nine regulatory laws considered according to constitutional jurisprudence among the laws complementary to the constitution. Among these laws, some will be drafted for the first time; specifically, regulating the composition of the new advisory council in accordance with the last constitutional amendment, electing its members and specifying the composition of the Economic Council and regulating it and its powers and the conditions that make it permissible to practice the right to hold a strike (a right included in the constitution). Some of these regulatory laws require new amendments to become compatible with the constitution. This relates to the parliament’s formation, to the election of its members, to the bases regulating the constitutional council, the conditions under which the fiscal law is issued, specifying the number of and method of electing the special supreme court members for trying ministers, and specifying the means by which parliamentary committees operate to investigate facts. Also mentioned were three regular laws to be issued and amended. These address regulating the jurisdictions of the Higher Council for Accounts, the Government Agency Councils, the bases of regulating them and the methods of operating them, the conditions according to which mayors enforce decisions of Councils of Mayors, Provinces, and Government Agencies, the law related to agencies, the jurisdictions of mayors and the methods of their practice . This affirms that the Moroccan parliament is approaching a qualitative phase in terms of its effectiveness and activity in the legislative field, enhanced by the givens of internal and international democratic transformation, the volume of increasing social pressures and developing growth of political awareness in citizens in general and in parliament members in specific, the ascent to parliament of the moderate (and well versed in politics and science) Islamic current, in parallel to the ascent of socialists to the position of Prime Minister, in addition to the presence, on the monarchy’s part, of the political intent for change. With the beginning of 1997, Morocco witnessed a notable surplus in the issuing of a group of legislations that particularly address the practice of political rights in harmony with the last constitutional amendments (1996), whereby five draft laws have been approved. These draft laws relate to the by-laws of the chambers of commerce, industry, agriculture, hunting, and services as well as to ending the appointment of worker representatives and regulating their elections. Also approved was the law of government agencies, which specified the division of the country into agencies with wide privileges in administrating their urgent affairs and approving the elections code, which combines the specific electoral laws of various councils in one record. Also approved were the two laws regulating the parliament’s two chambers in addition to the approval of a new law to divide electoral constituencies, increase their number, and tend to the geographic and demographic balance . (2) The Moroccan Parliament’s Legislative Performance in the Economic and Investment Sector: The Moroccan parliament ratified in 1995 in its exceptional session, and with a majority of 90 votes and the refrain from voting of 50 parliament members, the draft law of the Investment Covenant No. 18/95.
The above-mentioned investment law provides many tax and customs privileges and aims at canceling former licenses that investors had needed to conduct their projects. It also canceled distinction between investors’ nationality and preserved wide exemptions for young contractors, craftsmen, and handicrafts. Among the exemptions mentioned in this law:
The former Minister of Finance and Investments, in the context of this law, expected the rate of investment to rise from 22% to 27% of the Gross Domestic Product, among them 19% made by the private sector and 7.5% by the public sector. He asserted that the rise in the investments level is the only guarantee to achieving economic growth at a high standard and to providing more job opportunities. One must remember that “The investment law is part of a comprehensive vision consisting in national saving, encouraging productive investments, and sustaining radical reforms aimed at strengthening the private sector, liberating foreign trade, guiding government institutions, accelerating privatization programs and expanding their context to include new domains such as the communications and media sectors (the latter continued to suffer subjection to bureaucracy and administrative power, specifically that of the Ministry of Internal Affairs, for the Moroccan Minister of Communications Mohamed Al-Araby Al-Massary announced that that the government will submit draft laws permitting the founding of private radio and television stations, in addition to a draft law on transforming the first channel from a government TV station to a general one, indicating that television is not a feudal property and that liberal culture must prevail over media horizons .
Summary
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