The Moorish Wanderer

The House Of Cards and the King of Aces

Constitutional speeches are like Earthquakes, and in every sense of the word: they are earth-shattering, and they often come in a pair: the wave and the counter-wave follow each other and when the magnitude is high enough, the effect on the landscape is impressive. But this earthquake is not one. As a matter of fact, it might very well turn out to be a false alert.

Yesterday evening, the King gave the second speech on the Constitutional Reform, and announced Referendum Day for July 1st, just like what Khalid Hariry tweeted about on May 18th when his colleagues and himself met the Interior minister. At the same time, the speech laid out the essential features of what is essentially the new constitution, which is more than likely going to be voted by a comfortable margin. Before considering the political implications of this extraordinary short time span for political debate and campaigning, as well as the already biased rules of the campaigning game.

Contrary to the constitution circa 1996, the project has been carefully drafted, with a special focus on detailed procedure, perhaps to excessive lengths. Because the past constitutions have been written -and then cosmetically arranged so as to give a façade of democratic constitution- by one man, the late king Hassan II, and by his own admission, the writing process is daunting, but in his case, he managed to produce five constitutions that fit his larger-than-life character and lust for power; The latest of these Hassan II-era constitutional pieces of legislation, the 1996 constitution, was supposed to seal the deal on political transition, the so-called “Alternance Consensuelle“. So compared to the succinct constitutions we have had since 1962, this one is a true constitutional lawyer’s piece of work. Too bad it has been written by mainstream and conservative panellists.

The 180 articles in the new constitution, contrary to what has been speculated upon, do not change the monarchy from executive to symbolic, but rather recognize a de facto actual exercise of power; as we shall see later on, the monarch retains a great deal of appointment privileges, and while he did cede many of his formerly privileges, these concessions are not enough for the new constitution to qualify as that of a parliamentary monarchy. This is so because many of its articles are bluntly contradicting various universal standards of democracy, among others the separation of powers, the precedence  given to and accountability required from the elected representatives of the people. None of these things have been mentioned in the new draft, and that is why I reiterate my stand on voting against the constitution on Referendum Day.

Of these cosmetic changes, there is also much to be discussed; The word cosmetic is used here advisedly, mainly because while they do provide feedback to long-standing grievances, they remain insufficient as to the expected efficiency, or even with regard to the political symbolism from such measures. Contrary to the 1996 vintage and previous, the new constitution admits the diversity of the Moroccan identity, as specified in the preamble:

المملكة المغربية دولة إسلامية ذات سيادة كاملة، متشبثة بوحدتها الوطنية والترابية، وبصيانة تلاحم مقومات هويتها الوطنية، الموحدة بانصهار كلمكوناتها، العربية – الإسلامية، والأمازيغية، والصحراوية الحسانية، والغنية بروافدها الإفريقية والأندلسية والعبرية والمتوسطية. كما أن الهوية المغربية تتميزبتبوئ الدين الإسلامي مكانة الصدارة فيها، وذلك في ظل تشبث الشعب المغربي بقيم الانفتاح والاعتدال والتسامح والحوار، والتفاهم المتبادل بين الثقافاتوالحضارات الإنسانية جمعاء.

“The Kingdom of Morocco is an Islamic state enjoying an unfettered sovereignty, and is firmly attached to its national and territorial unity, and is committed to uphold the fundamentals of its national identity and all its components, Arabic, Islamic, Amazigh, Hassani-Sahrawi, as well as the fruitful African, Hebraic, Andalusian and Mediterranean influences. Furthermore, the Moroccan identity has a special place for Islam, as the Moroccan people are attached to the values of openness, moderation and forgiveness, in addition to the mutual understanding with all human civilizations”. [all extracts are unofficial translations]

This piece of preamble, while signalling a significant shift in the official narrative, because it now recognizes the obvious, and finally admits that diversity does not harm national unity. But the encouraging opening soon fades away, and the disappointing, almost insulting order of precedence reminds all of us who credited the commission with some amount of good faith that the centre of power, with all its legitimacy, is not yet ready to abandon the Arabo-Islamic hegemony. Notice the order: Arabic, Islamic, then Amazigh, Hassani, and the Hebraic heritage is relegated to the rank of a mere “influence”. Though this might sound like a fickle, this ranking is actually important because the preamble does not explicitly put all these ‘fundamentals’ on an equal footing. And judges can justify many of their ruling by this, as it might come up. Consider the example of a citizen suing the local administration because they refused to register their infant’s Amazigh name. Suppose the case goes all the way up to the Courts. It might very well be that the Judge would sustain the administration’s decision by invoking the order of precedence in these fundamentals. And considering how conservative the Judges’ corps are, this instance is more than likely to be observed in the near future.

The New Royal Motto: "Monarchy Rules All, and That's Official Now"

The positive contribution in the preamble is the unequivocal support and endorsement of international treaties on Human Rights and International Law. This was one of the most important pledge activists wanted the government and the regime to honour, without restrictions or reservations. This does not mean the end of police brutality, or the abuses citizens have to endure whenever they need to deal with the local administration. Again, the liberal tendency within the document itself is hurriedly curtailed in the name of sovereignty (and thus, local context, a window of opportunity to conservative interpretation of international law) -Another peculiar article I noticed was the “Right To Live” (Art.20) and yet death penalty is not explicitly mentioned and abolished; alternatively, this could also be a constitutional roadblock against any pro-abortion legislation. In both cases, a well-meaning established principle is going to yield the opposite, reactionary outcome.

The articles themselves operate pretty much under the same mechanism, especially on the executive branch: the King heads the newly-established Security Counsel (Art.54) still retains the General Staff (Art.53) religious leadership (the 1996 Article 19 turns into Article 41) and finally all cabinet meetings where the strategic decisions are made.

الفصل 41

الملك، أمير المؤمنين وحامي حمى الملة والدين، والضامن لحرية ممارسة الشؤون الدينية. يرأس الملك، أمير المؤمنين، المجلس العلمي الأعلى، الذي يتولى دراسة القضايا التي يعرضها عليه. ويعتبر المجلس الجهة الوحيدة المؤهلة لإصدار الفتاوى المعتمدة رسميا، بشأن المسائل المحالة عليه، استنادا إلى مبادئ وأحكام الدين الإسلامي الحنيف، ومقاصده السمحة. تحدد اختصاصات المجلس وتأليفه وكيفيات سيره بظهير. يمارس الملك الصلاحيات الدينية المتعلقة بإمارة المؤمنين، والمخولة له حصريا، بمقتضى هذا الفصل، بواسطة ظهائر

الفصل 53

الملك هو القائد الأعلى للقوات المسلحة الملكية. وله حق التعيين في الوظائف العسكرية، كما له أن يفوض لغيره ممارسة هذا الحق.

الفصل 54

يُحدث مجلس أعلى للأمن، بصفته هيئة للتشاور بشأن استراتيجيات الأمن الداخلي والخارجي للبلاد، وتدبير حالات الأزمات، والسهر أيضا على مأسسة ضوابط الحكامة الأمنية الجيدة.

The innovation in this constitution comes from the appointment of a Prime Minister from the majority party after a general election. The perverse established mechanism is too obvious: should a political party not amenable to the King’s views win a seizable majority of seats, the King, or his advisers, can weaken them by picking a Prime Minister other than the Party Leader. Divide and Rule, so that only obedient Prime Ministers can be appointed. Other than that, the King still retains power to hire and fire Ministers.

On the Judiciary, nothing has been done. Judges are not independent, because the King still chairs the Supreme Judiciary Council (the name changed a bit, but the attributions remain the same)

الفصل 56

يرأس الملك المجلس الأعلى للسلطة القضائية.

الفصل 57

يوافق الملك بظهير على تعيين القضاة من قبل المجلس الأعلى للسلطة القضائية.

Article 64 is a concrete threat to the Members of Parliament’s freedom of speech and immunity. The fact that the article enumerates these highly political cases instead of those potentially related to common law matters is not only a political threat to outspoken MPs, it is also an implicit invitation for the peoples’ representatives not to be bold, and whenever they can get away with it, engage in corruption and other improper behaviour from an elected office.

الفصل 64

لا يمكن متابعة أي عضو من أعضاء البرلمان، ولا البحث عنه، ولا إلقاء القبض عليه، ولا اعتقاله ولا محاكمته، بمناسبة إبدائه لرأي أو قيامه بتصويت خلال مزاولته لمهامه، ماعدا إذا كان الرأي المعبر عنه يجادل في النظام الملكي أو الدين الإسلامي، أو يتضمن ما يخل بالاحترام الواجب للملك.

All in all, the reports on newspapers that the King has curbed some of his powers is an attempt to polish a timid political process, or outright ignorance of Moroccan politics since 1956. While it is true the new articles spend a great deal of lengthy and tedious enumeration of dispositions, they do not bring new concepts other than those necessary for the decorum. Actually, if it was not for these accessories, the constitution just writes down the powers ” The King discovers while He practises them” as Professor Mennouni once said.

This lengthy overview of the new constitution is two-fold: it explains why I stand by my decision to vote against the new constitution, and it describes quite eloquently the new regime we are living under. We have moved from the dictatorial Hassan-II era to that of Soft Authoritarianism. The red lines still exist, but there is no systematic repression on those who cross it. But to these impudent, contentious subjects, the retribution is random and sometimes harsh. In any case, both eras share the random-looking pattern of repression; But now that the Monarchy’s legitimacy is firmly and strongly entrenched, they can engage directly into formalizing their patronage over the other institutions.

From a historical point of view, and bearing in mind the evolution of the balance of forces between the Palace and its real opposition, this new constitution does not take away powers from the King, it does not add up some more (if that was ever possible) it simply recognizes the Regal Hegemony.

Believe in Something and Dare Everything

Apparently my very early commitment to vote No on the upcoming constitutional referendum was interpreted by many readers -and friends- as symptomatic of a hard-headed, bitter radical, disconnected from the basic realities of Moroccan politics. I might be. But that does not prevent me from presenting my readers with a more or less formalized version of my own thoughts on what a constitutional reform can achieve, does it?

Morocco has got to be bold in its reforms. It would be a shame to end up in September with an upgrade version of the 1996 constitution (L’Economiste newspaper dared a “Maroc 2.0” headline, while a “Maroc 1.1 Beta” sounds more accurate). Apparently, there’s a member of the Royal Cabinet acting as a liaison with political parties, NGOs, other parts of the civil society. I would very much like Mr Moatassim to have a look at what I, as an enthusiastic and responsible citizen, want to see in this draft constitution:

This regionalisation idea was interesting. Why not push it further? The Commission’s primary findings were at best blurry, if not wilfully vague about the ways and means to implement such decentralization as specified in the King’s speech, January 2010. Why not put together a fully-devolved, full-federalized government? The Sahrawi people would welcome it, the Rif region has already a fierce regional identity that would flourish under a regional autonomy. I posted a year ago my own vision of what decentralisation would look like in a federal setting, and I think it can work, as a way to break up the Makhzen‘s grip on local matters. Regional bodies with attributions and a range of autonomy pretty close to the Länder prerogatives: local finances (with federal taxes and subsidies), regional police forces, regional parliaments and governments. And the symbol presiding over this federal aggregate, the unifying symbol, might I add, would be the Head of State, the King of Morocco.

The Azziman commission, on the other hand, has been very coy in its proposals; let us take a leaf on local finances to make the point: “Sans alourdir significativement la pression fiscale nationale, de nouvelles taxes régionales, adaptées aux spécificités de chaque région, pourront être prévues, […]” (p.18) obviously, the local or regional taxes are not going to be, in the committee members’ mind, a significant transfer of fiscal levy from central to regional bodies, as indeed the next paragraph explicitly shows: “Pour toute recette fiscale ou parafiscale, la détermination et le contrôle de l’assiette, la liquidation et le recouvrement seront confiés contractuellement aux services spécialisés de l’Etat, contre une juste rémunération des charges qui en résultent. […]Le partage à parts égales entre l’Etat et les conseils régionaux du produit des droits d’enregistrement et de la taxe spéciale annuelle sur les véhicules automobiles.” As it is, the present project -soon to be implemented with the upcoming constitutional reform, is no more than an upgraded version of the 1997 government bill: strategic decisions and government budget allocation still remain within the gift of central ministerial government. Central authority retains control over spending and legislation. This upgrade version of the 1997 local government act does not rise up to expectations. Federalism, it seems, was not the flavour of the year among the venerable members of the committee. Judging from this timid, half-backed, sitting-on-the-fence kind of proposals, and keeping in mind that many of these scholars and high-flying commis d’Etats also sit on the Constitutional Reform panel, I think it is safe to predict that they will come up with equally half-backed, indecisive and ultimately, superficial stitches to the constitution.

What would I propose then? Instead of just lining up a few sentences on what a regional body might do or might not, it would be vanguard-like to engrave federalism in the constitution; Basically, to admit it as the official and intangible -within the said constitution- political regime I would like to see take place in Morocco: a fully-fledged federal monarchy, multicultural and unified through the Royal Crown.

Why not a national CoA?

Obviously, a few things are likely to be radically altered: as the 1996 constitution shows, the national motto is “God, Fatherland and the King“. I personally have nothing against it (though I have some thoughts of my own on a more consensual, or shall we say religious-neutral one) but there is a great deal of confusion when one looks at the national Coat of Arms, which happens to be that of the Alaouite royal family as well. These might be trifling symbols, but it speaks a lot about the historical confusion between a dynasty that ruled parts of Morocco since the 17th century, and the state of Morocco that pre-existed even the Muslim conquerors. I would advise for the existing national Coat of Arms to be reverted as a Royal symbol (very much like the Royal Standard) while the Constitution delineate explicitly the coat of arms’ parts (in that Heraldic esoterica description).

On more down-to-earth matters, the new constitution, under a federalist setting, should explicitly specify the attribution of each governing body: the regional and federal legislative and executive branches, as well as the ‘liaison’ federal departments that brings institutions together.

I. Regional bodies

1. Parliament: retains all regional symbols of autonomy, i.e. the privilege of tax levy and spending, the control over regional police force and other civil service department (regional hospitals, primary, high schools and professional schools), and  a certain control over the regional government as well as (but indirectly) the federal government as well. Elections are organized within each region (with the voting system left to each regional legislation) and the elected government gets their parliament’s confidence on a either an individual or coalition-based manifesto to be carried out during the legislative session.

2. Governments: in order to ensure citizen control over local and federal bureaucracy, the legislative branch has a great deal of controlling powers over the local and federal governments. On the other hand, these bodies function just like a regular government: regional ministries with regional civil services. The cabinet is headed by a minister-president, who acts as a prime minister to the region (contrary to the federal Prime Minister, they enjoy only a primus inter pares status).

3. Regional Courts: The regional courts are an independent body whose members are appointed by a joint recommendation from the federal supreme court and the regional government, and confirmed by the regional parliament. They cannot be impeached or unseated unless the regional parliament introduces a special request to the federal supreme court or on the initiative of the latter.

4. ‘Free Cities’: large cities, i.e. with more than 750.000 denizens can constitute themselves into free cities, with even larger autonomy in levying taxes and implementing local legislation. A free city elects its own board, headed by a mayor, who is independent from the region, even if the city is a regional capital.

II. Federal Bodies

1. Federal Parliament: a bicameral house, with no hierarchy whatsoever (in the sense that there is no order or precedence as in ‘upper house’ versus ‘lower house’). The first chamber -called so because of its nationwide representation- has a fixed number of seats (9 per region, plus a seat for each ‘free city’ with a population over 1 million) whose elections coincide with the general election (for the federal government) The first chamber is elected on a federal level so as to provide the federal government with an immediate majority, as well as a counter-balance to the regional interests that are represented in the second chamber. The regional representatives’ seats per region are commensurate to each one’s population (with a ratio of 1 representative to every 50,000 citizens, a total number of about 400 indirectly elected regional delegates). Both houses vote their confidence on the newly elected government at a majority of 50% plus one vote (upon confirmation of the inner cabinet).

Parliament House, Rabat. What about a larger, more powerful federal body?

The same prerogatives apply to the federal government: they retain control of federal finances (including the federal body overseeing federal taxes and funding), federal police force (with regional deputation/federalization prerogatives whenever necessary) and federal departments, including national hospitals, university centres and research facilities, and nationwide infrastructures. Upon election results, both houses vote, in a joint session, their confidence in the new government (the Primer Minister as the leader of the party, or coalition party the majority of seats and/or votes, depending on the current voting system). Both houses can, when lacking vote majority, retract their confidence, thus compelling the Prime Minister to dissolve their government and federal parliament, calling for anticipated elections.

The Federal parliament has a power to organize public and private auditions of every government official, whether regional or federal, whenever the competent committee sees it fit. This subpoena prerogative can be limited only through a supreme court ruling.

2. Federal Government: officially “His/Her Majesty’s government, by the Will of the People” has the triple legitimacy to preside over Morocco’s destiny: first, national, with a majority in the Federal house, then regional, with a majority in the Regional Representatives’ house, and then royal, when the Monarch recognizes formally the party or coalition leader as the Prime Minister to be, then as the Prime Minister of the Federal Kingdom Of Morocco.

The federal government has a duty to carry out the manifesto upon which it has been elected, i.e. on a pre-election commitment (so as to prevent the post-election back-room deals that blotted all Moroccan elections since 1997, if not long before). In that sense, the federal government introduces legislation and enacts the parliament’s will.All government appointments, e.g. federal agencies, police and security apparatus are conditional on parliamentary consent.

In order for the federal government to carry out its business, ‘specialist’ bodies are attached to the traditional departments, and these aggregate other branches of power in joint-ventures, some of whom are ad hoc, and others are pre-specified:
* the Infrastructures and Transports Federal Board:
The board gathers the Infrastructures and Transports ministries (both at regional and federal levels) as well as Transport and Infrastructures labour and employers unions, the specialized construction and building companies, the Federal Audit Court and the National Infrastructures Parliamentary Committee. The board defines and discusses policies the ministries submit to their government and parliament for execution and funding.
* the Financial Regulatory Federal Board
the board gathers the Finances and Treasury ministries, the Federal Central Bank, representatives from all implanted banks (national and foreign alike), the regulatory bodies of the Stock Exchange, the Federal Audit Court and the Federal Supreme Court.
* the National Health Board
the board gather the National and Regional health departments, as well as representatives of N/RHS labour union, the board of national hospitals directors, the public health and safety parliamentary committee  and representatives from the Medical Profession (through the guild of doctors).
* the Higher Education and Research Board:
the board gathers the Education regional and federal departments, representatives from parents’ pupils societies, the federal and regional boards for curriculum design and assessment, and representatives from the education panel (academics specializing in education issues)
* the Federal Commission for Future Growth and Perspectives
the board encompasses the national statistics office (replacing HCP), the federal economic council board, the Central Bank and the federal budgeting parliamentary committee.

The need for these boards is not to burden the government or other branches of power with unnecessary bureaucracy, but it stems from the need to engage both federal and regional spheres into a cooperative setting; besides, the number of federal employees (that should remain within the ratio of 1 fed to 3 regionals) makes joint-ventures and interdepartmental structures necessary to share the burden of government. It also allows for civil society, unions and employers to convey their own views at the heart of the legislative and executive process.

3. The Federal Central Bank

It remains within the gift of the Prime Minister to appoint the Governor of the Bank, conditional on a joint confirmation from the Federal Parliament. The Central Bank is constitutionally independent from the executive branch, but the governor or their staff are required to testify before parliamentary committees on a regular basis to explain and justify their monetary policy.

4. The Federal Audit Court

The Federal Audit Court is another independent body who acts on its own will or upon request from any of the other branches of power. The appointments are jointly made by the King and the Prime Minister when a new government is elected. The Audit’s findings and decisions are transmitted to the Federal Supreme Court who then enforce it when necessary

5. The Federal Supreme Court

The Federal Supreme Court is an independent body, and judge appointments remain within the gift of both the Prime Minister and the King, conditional on a parliamentary approval

6. The Kingdom’s Mediator

The Mediator is an multi-partisan institution, i.e. only the house makes the appointments with no interference from other branches. The Mediator acts as a go between as a preliminary step when various litigations arise.

III. The Monarchy & General Principles

1. The Monarchy

(Apparently, I sound a bit like a republican to many. Let me square this once and for all: I remain conveniently agnostic on this issue. I do believe however that if the Moroccan people clearly chose a monarchical regime, it has to be parliamentary with honorary duties to the monarch.)

The Monarch, as a non-partisan figure, represents a symbol of unity, and the guarantee of our ethnic diversity within this unity. The Monarch, being above all political competition (or other), performs honorary duties, among which, recognizing the elected government, delivering opening statement to the annual joint session of the federal government, represent the Kingdom abroad on their own right. There remain some particular appointment that remain within the Monarch’s gift, conditional on a vote of approval from the parliament.

No more 'Beya'. There's no need to pay respect and submission time and again, for free and respectful citizens, is there? (Image Paris Match)

Rules of succession are not constitutional, and should comply with gender-neutral obligations (which means effectively, that we can end up with a Queen, hence the constitutional denomination of ‘the Monarch’). All symbols of respect and sovereignty are recognized, including a civil list (computed for the core Royal Household as a Civil Servant salary), honorary military and spiritual titles (but with no constitutional enforcement power, including the ‘Commandship of the Faithful’ title), the privilege of carrying a royal flag and coats of arms and royal designation of ‘His/Her Majesty’. As Head of State, he ‘Advises and Guides the Government of the Day’

2. General Principles: All international conventions signed have precedence over local legislation, especially in matters pertaining to human rights (including a full commitment to the International Penal Court) as well as a re-emphasis on the Universal Human Rights, their acceptance in their full universal meaning. In matters of Human Rights, Morocco surrenders all sovereignty and accepts international law as its own.

Now, if the Constitutional Commission comes up with something close to this aggregate of general statements, I will be more than happy to revert my position and enthusiastically campaign for a Yes vote. Now, I have to go back to my planet, I miss utopia so much…