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Istituto Affari Internazionali

Moroccan Exceptionalism Examined:

Constitutional Insights pre- and post-2011

Mohammed Hashas

Abstract

Compared to Egypt, Tunisia and Libya, Morocco"s political development looks like an oasis of tranquillity. "Moroccan exceptionalism" is often drawn on as a positive status, the result of at least one decade of reforms implemented by the monarchy, long before the Arab Spring events. An alternative view is offered by some civil society movements inside the country and by the 20 February Movement, born amidst the waves of the Arab Spring, which are critical of this exceptionalism and call for more reforms. By making reference to the constitutional reforms undertaken by the country since

1908 and by assessing the most recent reform efforts, this

paper argues that "Moroccan exceptionalism" is yet to go through the test of the implementation of what is often referred to as a "promising constitution" that should in its intentions pave the way for a genuine constitutional monarchy in Morocco. "Moroccan exceptionalism," as the paper concludes, is not the description of a "final" political situation; rather, it is merely "a phase" in the political life of a country undergoing transition. It is then the outcome of this "phase" that will determine whether "exceptionalism" takes on a positive or a negative meaning and whether the two contrasting narratives about "exceptionalism" can ultimately be reconciled. Keywords: Morocco / Domestic policy / Reforms / Arab Spring

IAI WORKING PAPERS 13 | 34 - December 2013

ISSN 2280-4331

© Istituto Affari Internazionali

IAI Working Papers 1334 Moroccan Exceptionalism Examined:

Constitutional Insights pre- and post-2011

2

Moroccan Exceptionalism Examined:

Constitutional Insights pre- and post-2011

by Mohammed Hashas*

Introduction

The label "Moroccan exceptionalism" is often used both by government officials in the country and many political analysts and commentators. Digging deeper into its meaning, it appears that interpretations tend to vary. While it denotes what is positive and progressive for government officials, it is most often associated with political malaise and the complex situation in the country by its critics.

1 It is then a controversial

label. For a deconstruction of the ambiguity that surrounds it, in the light of the Arab Awakening, I will outline the general characteristics of Moroccan constitutionalism from

1908 to 1 July 2011 and the adoption of the latest constitution. The idea behind this

review of constitutional developments in the country is to identify the factors that have Paper prepared for the Istituto Affari Internazionali (IAI), December 2013. * Mohammed Hashas, PhD, is research fellow at LUISS University, Rome (hashasmohammed@gmail.com).

1 Among current politicians, for example, Driss Lechguer, former minister and secretary general of the

Socialist Union of Popular Forces (USFP), says that Moroccan exceptionalism is very linked to the Moroccan monarch since the independence, and it is not the result of the so-called Arab Spring. Most

political parties and government officials argue along the same lines; see "Lechguer: Change has Started

with the Independence, and the King has Led Moroccan Exceptionalism" [in Arabic], in Hespress, 12 September 2013, http://hespress.com/permalink/88685.html. Lahbib Choubani, a leading figure of the Justice and Development Party (PJD) and current minister of Relations between Civil Society and

Parliament, says the same: "Choubani: Morocco is an Exception in the Context of the 'Arab Spring"" [in

Arabic], in Hespress, 21 October 2012, http://hespress.com/permalink/64881.html. Some others see that

this "exceptionalism" dates back to more recent time, 1999, when the current king Mohamed VI took power

and initiated big projects of change in the country; see for instance, Brahim el Guabli, "On the Moroccan

Exception" [in Arabic], in Jadaliyya, 4 March 2011, http://www.jadaliyya.com/pages/index/793. As to

intellectuals, they mostly refer to the history of the country and its old political system and monarchy to say

that Moroccan exceptionalism is built not only by the monarchy but also by the will of the Moroccans in

embracing the kingdom: Idriss Hanni, "On the Meaning of Moroccan Exceptionalism" [in Arabic], in Hespress, 21 March 2011, http://hespress.com/permalink/29393.html; Anouar Majid, "Four Reasons Why Morocco is an Exception", in Morocco World News, 1 January 2012, http://www.moroccoworldnews.com/2012/01/21260; Mohammed Hashas, "The Moroccan Exceptionalsim:

'We Want Corruption to Go, Change to Come, and the King to Stay!"", in AljazeeraTalk, 22 February 2011,

http://www.aljazeeratalk.net/old/en/node/7400. External followers of Moroccan politics also recognize

some aspects that make the country different: J. Peter Pham, "Moroccan Exceptionalism?", in World Defense Review, 10 February 2011, http://worlddefensereview.com/pham021011.shtml. Yet, not all see

exceptionalism as a positive feature: Fouad Oujani, "Morocco May Not Be an Exception", in Fair Observer,

11 February 2012, http://www.fairobserver.com/article/morocco-may-not-be-exception; Mohammed

Hashas, "Is Moroccan Exceptionalism Falling Apart?", in Reset-Dialogues On Civilizations (Reset-DoC), 31

May 2013, http://www.resetdoc.org/story/00000022251. I note that Nathan J. Brown uses the term "Moroccan exceptionalism" to speak of the lower debts Morocco had compared to other Arab countries,

like Algeria, Tunisia, and Egypt which had huge debts, and which justified the early French and English

imposition of protectorates and direct colonialism by the late 19th century: Nathan J. Brown, Constitutions

in a Nonconstitutional World. Arab Basic Laws and the Prospects for Accountable Government, Albany,

State University of New York Press, 2002, p. 33.

© Istituto Affari Internazionali

IAI Working Papers 1334 Moroccan Exceptionalism Examined:

Constitutional Insights pre- and post-2011

3 distinguished the country from other countries that are also experiencing change. Because of the place the monarch occupies in Moroccan history and political life, this brief constitutional review will focus on his position and role in the drafting and implementation of the texts. In this paper, I classify the constitutional stages in the country into three: 1) failed constitutionalism (1908-1972) during which the state and the king could be described as one body; 2) limited constitutionalism (1972-1992) during which the king shared powers; and 3) transitory constitutionalism (2011 - present) in which the king shares more of his powers without letting go of all of them, in an arrangement that could be said to constitute a system of "semi-constitutional monarchy." I focus on this last stage, which has a bearing on the so-called Arab Spring. I will refer to some of the main changes the current King Mohamed VI has initiated since coming into power in 1999, and the challenges he still faces. The latter are behind the development of a Moroccan version of the Arab Spring, led initially by the Movement of 20 February. The Moroccan Spring was met with the royal will to pursue change by drafting a new constitution followed by free and fair legislative elections. This paper sheds light on the place of the monarch in the new constitution, compared with the previous ones, and the significant powers he still exercises. While his policies since coming into power in 1999 are broadly described as reformist and "democratic" in spirit, which makes the monarchy an exception in the positive sense of the term in the Arab world, he is also criticized for the side-effects his super-activism has on the elected executive power (the government) and the rule of law in general. The executive powers of the king challenge and consequently "indirectly" weaken the role of the elected government, especially when his democratic spirit is tainted by the corruption of his entourage (the makhzen). It is this aspect of the kingdom that renders the label "Moroccan exceptionalism" pejorative. Overall, this paper argues that "Moroccan exceptionalism" is not a description of "a final" political situation but a description of "a phase" in the political life of a country that is seeking democratic change. It is the outcome of this "phase" that will ultimately determine whether "exceptionalism" takes a positive or a pejorative meaning. The two major challenges and scenarios presented at the end of the paper will show which tendency is more likely to prevail.

1. Failed constitutionalism: 1908-1972

What I refer to as the failed constitutionalism phase covers six attempts at constitution- making during the modern history of the country, and three others that succeeded in drafting and adopting constitutions. I call it "failed" even though three constitutions were adopted because they were all "given constitutions," i.e., the king directly drafted them for his subjects, without consulting their representative bodies. They were not drafted by directly elected commissions or councils. In this period of the history of the country, which was still in the initial stages of crafting modern institutions, the Moroccan monarchy did not exercise absolute power, like that of France under King Louis XIV (reigned 1643 -1715). Rather, the Moroccan monarchs, based on their claim of being descendants of the Prophet of Islam through Ali"s offspring, have used the Islamic

© Istituto Affari Internazionali

IAI Working Papers 1334 Moroccan Exceptionalism Examined:

Constitutional Insights pre- and post-2011

4 consultancy practice of bay'ah, which means bestowing loyalty to the king by the elderly representatives of tribes, lands, and especially religious scholars. 2 The first attempt at constitution-making in the country came from a group of governing elite, intellectuals, and religious scholars (ulemas) of Fez in 1908.

3 Their aim was not

only to control the authority of the king and make him seem accountable but also to curb European (in this case French) colonial pressures that were already being felt in nearby Algeria and Tunisia and to limit internal rebellions and fix fiscal crises. 4 The abovementioned stakeholders presented a list of demands to King Abdel Hafid (reigned 1909-1912). The principal demands were the constitution of two chambers of representatives, the recognition of citizens" basic human rights, and the reduction of the role of the king in ratifying decisions taken by the legislative powers.

5 However, none of

these demands were met as King Abdel Hafid gave in to French pressures and signed the Protectorate treaty in Fez in 1912, faced internal rebellions in some major cities, and subsequently abdicated in favor of his brother Youssef (reigned 1912-1927). 6 Though this constitutional attempt failed to find its way to political life as early as 1908, it became a reference for the Liberation Movement in its struggles for independence from the French occupation. The Liberation Movement that took more formal shape in the 1930s prioritized independence over pushing for the establishment of a constitutional monarchy. This was especially the idea of the Independence Party (hizb al istiqlal), which saw that constitutionalism might weaken stability in the country. King Mohamed V joined the

2 This loyalty practice, or bay'ah, does not allow the king absolute rule; it binds him first of all to the

guardianship of Islam as the religion of the land, against which he cannot go, thus the name of

Commander of Believers that is given to him, following the example of the second Caliph after Prophet

Muhammad. This is accompanied by the guardianship of the land, territory of the state, and security of its

people from internal divisions and external threats. These three major features then have characterized

the history of the Moroccan monarchy: protection of religion, land, and social stability. The role of the bay'a

and limitations of the power of the monarch could be exemplified by the religious scholars and leaders of

tribes" refusal of a number of external pressures on the king during the European colonial expansion. For

example, in 1908, they demanded that the king Abdulaziz (reigned 1894-1908) refuses the Algeciras Convention with European powers that aimed, among others, at selling Moroccan lands to Europeans,

establishing a tax system, and reforming the army; they also demanded that the loads the king had should

be considered personal loads he has to face, and are not to be considered state (Moroccan) loads the

masses have to pay for through taxation and ownership of lands by Europeans. The king was de-throwned

and exiled, and his brother Moulay Hafid took over, with the support of religious scholars and leaders of

the tribes through the loyalty practice of bay'a. Abderrahim Ben Slama, "Allal al-Fassi Discovers a

Constitutional Document: Moroccans Choose their King According to Sharia Teachings" [in Arabic], in Al

Alam, 12 April 2010, http://www.alalam.ma/def.asp?codelangue=23&id_info=26021. These features are recurrent in all adopted constitutions of the country: Mohamed Darif, Monarchie marocaine et acteurs religieux, Casablanca, Afrique Orient, 2010.

3 There is very little material on this issue, but the idea to note here is that these young intellectuals and

religious scholars were in touch, and thus also inspired, by both the Arab Renaissance (Nahda) aspirations

in the eastern part of the Arab world, the Mashreq, and also by the Turkish Union and Progress, and the

Ottoman Constitution of 1873; see: Edmund Burke III, Prelude to Protectorate in Morocco. Pre-Colonial

Protest and Resistance, 1860-1912, Chicago, University of Chicago Press, 1976, p. 132.

4 Nathan J. Brown, Constitutions in a Nonconstitutional World, cit., p. 33-34. 5 Gerhard Robbers (ed.), Encyclopedia of World Constitutions, New York, Facts On File, 2007, p. 622. 6 This constitutional document was later found by the Moroccan thinker and politician Allal al-Fassi (d.

1974), which he introduced and commented on. Allal al-Fassi (ed.), Excavations: On the Constitutional

Movement in Morocco before the French Protectorate, from an Unknown Writer to the King Abdel Aziz [in

Arabic], n.d., p. 6.

© Istituto Affari Internazionali

IAI Working Papers 1334 Moroccan Exceptionalism Examined:

Constitutional Insights pre- and post-2011

5 Liberation Movement in its struggles. The Movement used the liberationist ideas of the draft constitution of 1908 in its demands to the French.

7 Morocco won its independence

in 1956. Constitutional aspirations aside, Nathan Brown notes that during this period in the Arab world in general, constitutionalism was mostly used by rulers, including religious enlightened scholars, to enforce customary and shari"a laws. This is to say that constitutional attempts, such as the Moroccan one above, should not be seen as aborted attempts that could have radically changed the political functioning of the country. They were attempts made by the ruling elites and not by representative assemblies, so their effect, had they been embraced, would have been minimal and reforms could have faced immense difficulties in the absence of institutions to implement them. 8 Having gained independence, the major party of the Liberation Movement, the Independence Party, attempted to dominate the political scene and marginalize other smaller parties by calling for a unitary party system in the country. King Mohamed V (d.

1961), who also played a big role in the liberation of the country with his son, Prince

Hassan II (d. 1999), prevented such an attempt through two decrees. First, he issued in May 1958 "The Royal Contract", in which he specified the nature of the political system of the country as being a "constitutional monarchy" based on a multiparty system. Second, in November 1958, he issued the "General Liberties Law", which allowed the establishment of associations and parties. This early postcolonial period was characterized by three major power camps: 1) the monarchy; 2) the liberation movement and the liberation army (jaysh at-tahrir); and 3) the Independence party, as Allal al-Fassi, a leader within the Movement and the leader of the Independence party, stated in a speech in Tangier in 1956.

9 Al-Fassi"s critical text Self-Criticism, considered

a classic in Moroccan contemporary political thought, expresses his political ideas and wish to see a constitutional monarchy like that of Britain take shape in Morocco. 10 In

1960, the king appointed a Constitutional Council, composed of most political parties

and movements of the time with the exception of the abolished socialist party and the newly founded party of the Socialist Union (part of the Independence Party), which required that the council be elected and not appointed. The idea was that the council would draft a constitution and present it to the king for ratification by December 1962, but this failed because the leaders of the invited parties did not agree on the appointment of al-Fassi, leader of the Independence Party, as the head of the council. The king unexpectedly died during a small operation on his throat in February 1961, and Prince Hassan II succeeded him. Carrying on with the project his father started, Hassan II continued on the path of drafting a constitution without consulting either the failed Constitutional Council or the

7 Mohamed Lemrabti, "The Historical Dynamic of the Constitutional Movement in Morocco and the

Weakness of the Liberation Movement" [in Arabic], in Portal of Taza-Al Hoceima-Taounate, 25 September

2013, http://www.region-tat.ma/index.php?news=523.

8 Nathan J. Brown, Constitutions in a Nonconstitutional World, cit., p. 32 9 Mohamed Darif, Moroccan Political Parties. From Confrontation to Deliberation [in Arabic], Casablanca,

Dar Al i'tissam, 2001. See Part I: Confrontation.

10 "We have to consider ourselves working towards Constitutional monarchy, which requires of us to look

at the English model that has preceded us in this. [...] Moroccan democracy has to be based on a

parliamentary system" [Author"s translation]. Cf. Allal al-Fassi, Self-Criticism [in Arabic], Cairo, Al-Matba"a

Al-'Alamiya, 1952, p. 141; 142.

© Istituto Affari Internazionali

IAI Working Papers 1334 Moroccan Exceptionalism Examined:

Constitutional Insights pre- and post-2011

6 opposition or any other political party. A referendum took place and the parties that were part of the Council voted in favor of the text, apart from the ones that were already in the opposition, i.e., the banned communists and the Socialist Union. The constitution was adopted by more than 80 per cent of the voting population. It is this "given constitution" model that has shaped the political scene in Morocco from the

1960s until now. The role of the king is strong in the executive and judiciary, besides

enjoying religious authority and powers on military matters and the preservation of security and stability of the country (Article 19, Const. 1962). The Prime Minister, who is appointed by the king and not according to the electoral results, has no executive powers; he is considered a public servant who co-ordinates the work of the ministries (Art. 24, Const. 1962).

11 The system of two chambers is in force (Art. 36, Const. 1962);

the Parliament is directly elected, but the winning party has no direct chance of heading the government, as the latter is mostly appointed according to the will of the king, and its legislative agenda stems from the will of the latter and not from the legislative body. The Parliament is then symbolic; it represents the electorate but is not accountable, since its program of governance is dictated by the monarch. Multipartyism is encouraged with a view to making the political system look pluralistic and democratic. 12 In March 1965, a number of Moroccan cities experienced protests led especially by students and teachers who refused an agenda proposed by the ministry of education. A few months later, the government and Parliament were dissolved; the king used Art.

35 of the constitution to announce the Emergency Law that left the Parliament

dissolved for five years. Negotiations with the Socialist Union and its leader Mehdi Ben Berka did not end in a solution. This also coincided with a foiled coup d"état attempt in

1963. During the same period of time, Morocco entered a war (the Sand War, harb ar-

rimal) with Algeria over the frontiers in 1963.

13 The monarchy in Morocco had to

negotiate the internal conflicts, for fear of more internal instability. The king agreed to make constitutional changes in July 1970.

The constitution of 24 July 1970

14 came with further clauses that strengthened the role

of the king, thus failing again to meet the expectations of the political bodies in thequotesdbs_dbs17.pdfusesText_23