The New Moroccan Constitution: Real Change or More of the Same?

Marina Ottaway Commentary, June 20, 2011

The constitution King Mohammed VI announced to his country on June 17 has been greeted by Moroccans with a great deal of ambivalence. Although it appears to be a foregone conclusion that a majority of Moroccans will vote "yes" in the referendum announced for July 1, many will do so with reservations. The young protesters who have been organizing periodic demonstrations beginning on February 20-hence the name, February 20 movement-have already announced that they do not intend to stop their actions. In fact, protests took place on June 19, drawing thousands of protesters in Casablanca and smaller numbers in other cities.

A large number of interviews during a recent trip to Morocco suggest that the king may well have succeeded in staying ahead of the protest that has led to the demise of the regimes in Tunisia and Egypt and plunged Libya, Syria, Yemen, and Bahrain into turmoil and violence. Whether this is just a short-lived victory in the first skirmish of a long battle or a turning point on the road to transforming Morocco into the Arab world's first constitutional monarchy will depend not only on how the king acts in the coming months, but also on the capacity and willingness of Moroccan political organizations to build on the opportunities the constitution offers them. It may also depend to some extent on the persistence of a protest movement that has so far not been able to mobilize the huge crowds seen in Tunisia and Egypt.

Drafting the Constitution

The constitution, like all preceding ones, was written by a commission of experts appointed by the king, rather than by an elected constituent assembly or another representative body. It thus falls in the category of constitutions granted to the nation by the king, rather than those crafted by a representative organization embodying popular sovereignty. The guidelines for the new constitution were outlined in a speech given by King Mohammed VI on March 9 and the commission subsequently worked to flesh out an outline provided by the palace or, as Moroccans put it, "le pouvoir." The commission was headed by Abdellatif Menouni, an advisor to the king, leaving no doubt where the directives came from. 

The palace also set up a consultative body to work in conjunction with the commission of experts. The strangely named "mechanisme de suivi," or accompanying mechanism, was also headed by an advisor to the king, Mohammed Moatassim, and functioned as liaison between the drafters of the constitution and political parties, labor unions, businessmen associations, human rights organizations, and other groups or even individuals interested in having an input in the new constitution. Some presented entire constitutional drafts, some only suggestions on key points. Once the submissions were made, however, there was no follow up or debate. The organizations were not shown a draft of the new constitution until June 8 and even then they were not shown a written document but only able to listen to an oral presentation that they discussed in a marathon ten-hour meeting. Inevitably, in the following days the country was abuzz with conflicting rumors of what the new constitution entailed, as various parties and individuals leaked their version to the press. The members of the "mechanism" only saw a written draft on June 16, the day before the king presented it to the nation in a televised speech. Similarly, the council of ministers was asked to vote on the draft on the same day of the public announcement.

 Despite the narrow limits of consultation and participation imposed on the drafting of the constitution, the process was probably more open than previous ones. The mainstream political parties represented in the parliament accepted the process and have already made it clear that they will campaign for a "yes" vote in the referendum. This is not surprising, because the parties represented in the parliament are tame and more concerned about maintaining their prerogatives by supporting the initiatives of the monarchy than setting forth programs of their own. Remarkably, the Party for Justice and Development, the Islamist party that came in second place in the 2007 parliamentary election but remains in the opposition, has made it clear that it supports the new constitution, arguing that it contains sufficient guarantees of democracy. The major reason for the party's acquiescence is apparently the desire to continue and complete the process of integration of the Islamists in the legal political process, a goal that the PJP has been working toward for years.

 The February 20 movement on the other hand rejected the new constitution even before it was unveiled because of the manner in which it was drafted and pledged to continue protesting. The February 20 movement has never succeeded in mobilizing huge crowds similar to those that brought down  Zine al Abidine Ben Ali in Tunisia and Hosni Mubarak in Egypt. By the participants' own estimates, their most successful protests were carried out on March 20 in Casablanca, Rabat, Tangiers, and a number of other towns, but even these protests were relatively small compared to those other countries experienced.  

Like protests movements in other Arab countries, the February 20 movement is a leaderless and structureless amalgam of young people. It holds monthly general assemblies in the towns where it exists, with each assembly being autonomous of the other. The assemblies are open to the public and coordination among the different groups takes place, to the extent it does, via Facebook-the number of users in the country doubled in the last few months. The movement is looked at with suspicion by the mainstream political parties, although, as in other countries, the young wing of many parties have joined in without official blessing by the parent organization. The movement appears to have broad demands-essentially for democracy and jobs-but not anything that could be called a program. 

 Parallel to the youth groups that constitute the February 20 movement, a number of leftist political parties, independent labor unions, left-leaning human rights organizations, and Islamist movements have set up a Council to Support the February 20 movement. Most important among them appear to be the Islamist movement al-Adl wal Ihsan (Justice and Charity, or Justice and Spirituality as it insists on translating the name recently), the United Socialist Party (PSU), and the Moroccan Association for Human Rights (AMDH). Given the array and the ideological diversity of parties and organizations that belong to it, the support council is deeply divided with members forming alliances against each other. More structured than the movement itself, the support council holds meetings and issues  communiqués, but it is not clear that the members of the February 20 movement themselves agree with the positions taken by the support council or even, as some conversations revealed, know of its existence.

Identity Politics  

The two most controversial issues to surface during the debate over the constitution were related to the definition of the identity of the Moroccan state: whether Morocco should be defined as an Islamic state, and whether Morocco should recognize Amazigh, the language spoken by the Berber minority, as an official language. 

The discussion concerning the place of Islam is caught in the problem of the relationship between Islamist parties and organizations and "civil" ones-the increasingly accepted word to denote parties that outsiders would define as "secular." Such parties refuse to be characterized as secular, fearing the latter term can be interpreted as implying irreligiosity. The term civil not only has no such implication, but also put the religious parties somewhat on the defensive as being "uncivil." The tension between Islamic and "civil" parties is not unique to Morocco but common to all Arab countries, particularly in this period of transformation. Indeed relations are even more difficult in Tunisia and Egypt. In Morocco, the Party for Justice and Development is legal and has been participating in several cycles of parliamentary and local elections. Although it remains a devil for some, it is at least a known devil. But the issue is far from being solved even in Morocco. 

What exactly happened in the debate over the place of Islam in the Moroccan state remains difficult to understand with precision, in part because of the confusion between what different organizations actually said and what they are alleged to have said and in part because of the use of code words that are not always clear. Islamists have been accused by civil parties of having insisted that Morocco continue to be defined as an Islamic state. Islamists deny that this is the case and argue that they even favored a definition of Morocco as a "civil state with an Islamic reference." On the other hand, there is no doubt that a suggestion that the constitution includes a reference to "freedom of conscience," rather than the guarantee that people belonging to other religions would be free to perform their religious practices was vehemently denounced by the general secretary of the PJD as opening the way to unacceptable and provocative behavior such as public display of homosexuality and violating in public the Ramadan fasting. In the end, the constitution defines Morocco as a Muslim state in the preamble, and states that Islam is the state religion in Article 3, which also guarantees freedom of religious practices to all faiths. Compared to the text of most Arab constitutions-which proclaim sharia as one of the sources, if not the source of law-the new Moroccan constitution, like the previous one, is quite liberal. It should also be noted that in Morocco religion is an integral part of the king's power: as the officially recognized "commander of the faithful" the king would see his position somewhat diminished if Morocco was not defined as an Islamic state.  

The new constitution also recognizes Amazigh as an official language, despite the objections by conservative elements and by those who thought such recognition would dilute Morocco's Arab identity. It also contains a reference to the plurality of influences on the Moroccan culture, including Andalusia, more broadly the Mediterranean culture, the people in the Sahara, Christianity, and Judaism. The compromise in this case appears to be language that makes it clear that the official status of the Amazigh language will be implemented slowly.

The King's Power

Identity issues caused the most controversy while the constitution was drafted, but in the long run the real issue is how much power the king will exercise under the new constitution-and thus how much progress Morocco has made toward becoming a constitutional monarchy or, in the language favored in Morocco, a parliamentary monarchy where the king does not govern. 

Even the most ardent supporters of the new constitution do not claim that the new charter reduces the king to ruling without governing. That, they argue, is neither possible nor desirable in Morocco. The new constitution reserves for the king three areas as his exclusive domain: religion, security issues, and strategic major policy choices. In addition, the king will remain the supreme arbiter among political forces. Under those rubrics, the king could very well control all important decisions, if he so chooses. 

There are new formal limits on the king's power. He cannot choose any prime minister he wants, but must respect election results and name "the president of the government," as the prime minister is now called, from the party that received the most votes. The king will no longer participate in and preside over the meetings of the cabinet. Rather, it is the president of the government who now presides over the renamed Council of Government. However, the king presides over the cabinet, which in that case is still called the Council of Ministers, when security issues or strategic policy decisions are at stake. Since the constitution does not clearly spell out what would constitute a strategic decision, it appears that the decision is up to the king himself. His position as arbiter also gives him the power to weigh in on the most important issues.

 The constitution undoubtedly broadens the power of the parliament, allowing it to pass laws on most issues; it takes steps toward protecting the independence of the judiciary; and it increases the role of a number of independent commissions. What it fails to do clearly and unequivocally is reduce the power of the king.

How much change

The new constitution might bring about significant change, but only if Moroccans continue to exercise pressure on the king. The history of political reform in Morocco shows the importance of pressure. The first big recent wave of change came when King Hassan was approaching the end of his life and understood the importance of opening up the political system some in order to facilitate his son's rise to the throne. He was under pressure to make changes. King Mohammed followed on the path of reform, but progress was made increasingly slowly as he felt more sure of his position. It took the Arab Spring, with the example of what can happen to regimes that refuse to change and the beginning of street protest in Morocco, for the king to conclude that it was time to relaunch reform.  

The impact of the new constitution depends on the way in which it is implemented. As an opposition legislator put it to this author, the constitutional text has potential. In order for it to be realized, the parliament has to adopt the necessary legislation and make sure that it provides maximum space for the political forces. The past performance by the parliament suggests that it is not a foregone conclusion that the parliament will make good use of the potential. Although Morocco has a stronger tradition of political parties than most other Arab countries, the parties suffer from the same problems as the entire political system does: they are top-heavy, internally undemocratic, with little renewal of leadership.  

As a newer party more committed to change, the PJD may be less hidebound than other organizations, but one party is not enough. Furthermore, if the Party of Authenticity and Modernity (PAM) wins the parliamentary elections that will probably be held in October, the power of the king is likely to remain strong. The PAM was created by a friend of the king before the 2009 municipal elections. Not only did it perform well at the level of the municipalities, but it established a strong presence in the parliament without ever participating in a parliamentary election-members of other parties simply moved over to the newly created entity. Before February, the PAM was expected to do extremely well in parliamentary elections, but it is not so clear how recent events will affect it. There is no doubt, though, that if a party close to the king was to win elections the reform momentum could easily be dissipated. The outcome will also be affected by the capacity of the February 20 movement to stay alive if a large majority of Moroccans approve the constitution in a credible referendum. 

 How far the king's top-down reform will go may well depend on the strength of a bottom-up push by political parties and protesters.