(Apr. 25, 2018) On February 6, 2018, Morocco’s Parliament approved, in accordance with article 133 of the 2011 Moroccan Constitution, Law No. 15.86 Concerning the Determination of the Conditions and Modalities of Raising the Issue of Unconstitutionality of a Law. (Law No. 15.86 Concerning the Determination of the Conditions and Modalities of Raising the Issue of Unconstitutionality of a Law, website of the Ministry in Charge of Relations with the Parliament (in Arabic).)
According to article 133 of the 2011 Moroccan Constitution,
[t]he Constitutional Court is competent to take cognizance of a pleading of unconstitutionality raised in the course of a process, when it is maintained by one of the parties that the law on which the issue of the litigation depends, infringes the rights and freedoms guaranteed by the Constitution.
An organic law establishes the conditions and modalities of application of this Article. (MOROCCO’S CONSTITUTION OF 2011, art. 133, Constitute Project website; CONSTITUTION OF THE KINGDOM OF MOROCCO, 29 July 2011 (2011 CONSTITUTION), art. 133, Supreme Judicial Institute website (in Arabic).)
Article 134 of the Constitution states that “[a] provision declared unconstitutional on the foundation of Article 133 is abrogated counting from the date specified by the Constitutional Court in its decision.” (2011 CONSTITUTION, art. 134.)
Under Law No. 15.86, private litigants are allowed to raise the issue of constitutionality before any courts, including for the first time the Court of Appeals and the Court of Cassation. (Law No. 15.86, art. 3.) In other words, even if the litigant did not raise the issue of constitutionality before the lower court, he or she can still bring it up before the higher courts, including the Court of Cassation.
Article 5 of Law No. 15.86 requires that the concerned litigant raise the issue of unconstitutionality in a written memorandum that meets the following conditions:
- It must be signed by the concerned party or by an attorney duly admitted to any of the bar associations in Morocco.
- It must be accompanied by the appropriate fee, unless the concerned party has been authorized to proceed in forma pauperis.
- It must indicate the provisions of the law that are unconstitutional.
- It must explain the reasons why such provisions are unconstitutional.
- The raised issue must be one that has been or may be applied in the case.
- The issue raised must not been have been previously determined. (Id. art. 5.)
If the court before which the issue is raised is satisfied that the memorandum meets all the abovementioned conditions, it must send the memorandum to the Court of Cassation within eight days from the date of its filing. (Id. art 6.)
The Court of Cassation must issue a reasoned decision within three months from the date it receives the memorandum, either directly or from a lower court, and is then required to send the decision to the Constitutional Court. (Id. art. 11.) If the Court of Cassation fails to issue its decision within the prescribed time limit, the memorandum must be automatically sent to the Constitutional Court. (Id. art. 12.)
The Constitutional Court is composed of twelve members: six are appointed by the King, one of the six having been recommended by the Secretary General of the Superior Council of the Ulema; three are appointed by the Chamber of Representatives; and three are appointed by the Chamber of Councilors (with the appointments by the two Chambers requiring a two-thirds majority). (2011 CONSTITUTION, art. 130.) The King appoints the President of the Court from among its members. (Id.)
The jurisdiction of the Constitutional Court is to “exercise the attributions which are devolved on it by the Articles of the Constitution and the provisions of the organic laws,” and to decide on “the regularity of the election of the members of Parliament and of the operations of referendum.” (2011 CONSTITUTION, art. 132.) An organic law describing the jurisdiction of the Constitutional Court in accordance with article 132 of the Constitution was enacted on August 13, 2014. (Organic Law No. 066.13 of 2014, Chamber of Representatives website (in Arabic).)
Originally, under a previous constitution, the constitutional review function was assigned to a Constitutional Chamber of the Supreme Council. (1962 CONSTITUTION, arts. 100–103, Digithèque de matériaux juridiques et politiques website (in French).) A separate Constitutional Court was established in 1992. (1992 CONSTITUTION, arts. 76–79, ConstitutionNet website (in Arabic).) In both instances the ability to challenge the constitutionality of any law was not open to private litigants.
The 2011 Constitution is the first of Morocco’s constitutions to allow private litigants to challenge the constitutionality of laws.