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International Association of Tax Judges 2012 Assembly - Munich

International Association of Tax Judges 2012 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

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International Association of Tax Judges 2012 Assembly - Munich

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  1. 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 chamberat the Moroccan Court of Cassation Head of ModernizationDepartment and Future Prospects in the said court

  2. 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.

  3. Structure of the Current Moroccan legal system Court of Cassation Which deal with VAT, taxes on income, corporate tax, amongother non-tax issues courts of appeal Commercial Courts of Appeal Administrative Courts of Appeal First instance courts Commercial courts Administrative Courts

  4. Outline • Introduction: - A. The scope of judicial independence • B. Historical background • Judiciary Independence Under the former constitutions • Judiciary Independence Under the current constitution • Conclusion

  5. Introduction

  6. 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.

  7. 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 18thcentury through bilateral conventions with some foreign countries ; due to the State weakness ;

  8. Historical backgroundctd • 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 adoptedmakingthe 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).

  9. Historical backgroundctd • 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.

  10. Historical backgroundctd • 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).

  11. Comparative table of constitutionsregarding the judicial Independence Constitutions of : 1962 1970 1972 1992 1996 Constitution of : 2011 Judicial Authority Judicial Power

  12. Judiciary Independence in the Previous Constitutions

  13. 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.

  14. 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.

  15. Appointementctd • 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).

  16. 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.

  17. 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.

  18. 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.

  19. 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.

  20. The disciplinary processctd • 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 :

  21. warning ; • Formal warning ; • Postponement of promotion for less than 2 years ; • Removal from the list of aptitude for promotion. First degree sanctions are decided by the (Moj) such as : Sanctions

  22. 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.

  23. Accountabilityctd • 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.

  24. 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.

  25. Finally let me add that according to the law the Minister of Justice has several other prerogatives, notably the following:

  26. 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.

  27. Otherroles 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.

  28. Summary Table Under Previous Constitutions

  29. Judiciary Independence Under Current Constitution

  30. 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.

  31. Composition of the Superior Council of Judicial Power - 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; - Four judges of Appeal elected by their colleagues of the Courts of Appeal Chaired by the King - Six judges of the first instance courts elected by their colleagues in the same courts. - Women judges elected among the ten judges above in proportion to their presence in the judiciary; - The Mediator; - The President of the National Human Rights Council; - 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].

  32. 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).

  33. 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.

  34. The Superior Council of Judicial Power Ctd • Financially and administratively autonomy ; • An organiclawshalldeterminematters relating to its election, organization and functioning.

  35. The disciplinary process • An organic law may determine matters related to disciplinary procedure.

  36. The Judge protection • Any interference regarding cases filed with court is prohibited ; • A judge may not, in his judicial function, receive injunctions orinstructions, 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).

  37. Judge obligations • Any failure by a judge to fulfill his obligations with respect toindependence and impartiality shall be considered a seriousprofessional misconduct, without prejudice to any possible criminal prosecution.

  38. 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.

  39. 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).

  40. 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).

  41. Conclusion

  42. 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 :

  43. 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.

  44. Conclusions and recommendationsCdt • 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.

  45. Conclusions and recommendationsCdt • 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.

  46. Conclusions and recommendationsCdt • 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.

  47. Conclusions and recommendationsCdt • 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.

  48. Thank You for Your Attention zaim009@hotmail.com

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