The right to petition in Morocco in light of its practice in the comparative constitutional
systems
Professor Abdelmajid ASAAD
Professor in the faculty of law of Casablanca and Settat
Previously Vice Chancellor of Hassan I University
1
The right to petition in Morocco in light of its practice in the comparative constitutional
systems
Abstract
This study investigates the right to petition through a comparison of the cumulative
experiences of well-established democratic countries. This is based on a new version of the
Moroccan constitution dated on the 01st of July 2011. This constitution stipulates the right
to petition in articles 14, 15 and 139. The changes that Morocco has witnessed at the
constitutional level and in relation to the Political life of the country in general, are a result
of the events that occurred in a number of Arabian countries such as the revolutions in
Tunisia, Libya, Egypt, Yemen; called the ‘Arabian spring’.
In parallel to the constants specific to the constitutional monarchy system, Islam, and the
national unity, the new Moroccan constitution laid emphasis on democracy,
decentralization and the rights of opposition. This development in the Moroccan
constitution embodies some new rights (e.g., the right to petition) that were absent in the
old constitutions. The right to petition underlines democracy given that it enables citizens to
participate more actively in managing the public interest. The practice of the right to
petition has become one of the most important rights in democratic countries, in addition
to the right of election, the right of referendum, and the right of initiative. It is considered
that the right to petition is one of the most crucial pillars of participatory democracy.
The constitution of the 01st of July 2011 marked the juridical basis of this right. Hence, it is
possible to undertake a comparative study to hopefully gain an outlook of its practice from
the evolving political and social realities of the country. This implies investigating the
Moroccan legal and political realities in order to potentially develop suitable regulations
which will further allow the practice of this right. Another aim relates to a greater emphasis
from the part of political actors in enhancing the importance of this right for individuals and
the civil society as well as its positive effect on the participatory democracy.
2
Introduction
The author examine the right to petition in light of the comparative experiences of some
democratic countries. In addition, this study is based on some new clauses of the new
version of the Moroccan constitution of the 01st of July 2011. This new constitution
stipulates this right on the national and local levels in articles 14, 15 and 139 1. It is worth
mentioning that the changes that Morocco has witnessed in terms of the constitution and
the political life in general was a result of the events which occurred in the Arab spring. We
believe that these events had a positive influence on Morocco as the country witnessed
calm changes based on a new constitution and genuine parliamentary elections that led to
leadership by a moderate Islamic party.
The right to petition can be traced to the old ages where the right to advance complaints
and other requests is one of the oldest rights/practices. In the Roman age, complaints were
advanced in the form of requests to uplift an unjust decision. However the term petition
was neither used nor known as it is the case nowadays in terms of constitutions and the
texts discussing its application 2.
The history of many nations is full of events that led people to present claims/complaints to
the emperor or the Sultan against a municipal or central authority. These claims seek uplift
1
st
World constitutions illustrated: Morocco, draft text of the Constitution adopted at the Referendum of 1 July
2011. Translated by Jefri J. Ruchti.
-Article 14
The citizens [feminine] and citizens [masculine] have [dispose], within the
conditions and following the modalities established by an organic law, the right
to present motions in legislative matters.
-Article 15
The citizens [feminine] and citizens [masculine] have [dispose] the right to
present petitions to the public powers.
An organic law determines the conditions and the modalities of this right.
-Article 139
The participative mechanisms of dialog and of acting in concert [concertation]
are implemented by the Councils of the regions and the Councils of the other
territorial collectivities so as to favor the participation [implication] of the
citizens [feminine] and the citizens [masculine], and of the associations in the
enactment and the application [suivi] of the programs of development.
The citizens [feminine] and the citizens [masculine] and the associations can
exercise the right of petition with a view of demanding the inclusion
[inscription] in the agenda of the Council, a question relevant to its competence.
2
th
Great Britain has witnessed submitting grievances to the king since the 15 century. This right had been given
to the English public board since the declaration of rights in 1688. Please see “Public petitions, House of
Commons Information office”.
3
of injustice. In the case of Morocco as it is the case for some other nations, claims have been
submitted to central authorities to uplift injustice perceived by a group or a tribe or some of
its members from these authorities. Most of these claims presented in the 19th century in
Morocco are related to the imposition of excessive taxes3.
The right to petition should not remain wrapped in a kind of mystery and/or overlap with
some other initiatives requesting a right or aiming to participate or affect legislation. There
are a number of terms used interchangeably such as claim and request which have been
historically used with the same purpose to remove damage.
This overlap requires
identifying the right to petition based on the recent comparative legislations in some
democratic countries on the national as well as local levels. Domesticating these
comparative legislations for Morocco will guide the materialisation of applied rights
informing its application in practical terms.
Prior to agreeing on a conventionally accepted conceptualisation of this right by most
ancient legislations, it is worth emphasising that democracy as a driving force behind a
country’s management makes the right to petition an expression of citizens and thus
enhancing the practice of democracy. The right to petition, for it to represent a strong pillar
of participatory democracy, entails two conditions: a society based on free elections and
genuine representativeness 4.
Prior to the constitution dated on the 1st of July 2011, the right to petition had not been
stipulated in any earlier constitutions. However, in the late 19th century to early 20th
century, there had been projects in relation to different rights and liberties. A good example
in this context is a constitution called ‘the Tongue of Morocco’. This was influenced by
constitutional texts in Europe in the 19th century as well as the ottoman (Turkish)
constitution of the 23rd of December 1876 5.
The constitution project in 1908 had important civil dimensions. It included structural
reforms with a modern flair. It aimed to organise public authorities and frame the
3
Les Oumana au Maroc (Hassan I) 1873-1894, these soutenue a la faculte des lettres par Naima Touzani, 1979,
pages: 86, 87, 96.
L’evolution de la situation international au Maroc au cours du xixeme siècle, University of Mohammedia,
Maroc, 21-31 Juileet 1987. Volume 3, p. 37.
4
L’introduction du livre de J. Freud, L’essence de la politique, Paris, Dalloz, 2003.
5
See article “the constitution project of the group on Moroccan tongue”, by Professor Taib Lazrak, Journal of
the History of Morocco, Issue 1, February 1981, Kaouthar publishers, Rabat, Morocco, p. 126.
4
relationships between the leaders and the ‘followers’/public. The theme on human rights,
general liberties, social rights for citizens was evident. More specifically, this project
addresses the right to petition in article 34. This stipulates the following: “it is the right of
every individual of the Moroccan entity Moroccans and foreign residents in Morocco to
submit a claim against any employee in the government in case of injustice or in case there
is a behaviour or attitude that goes against any text of constitution to the forum of Shura
(the elected parliament), it is then the responsibility of the forum to have a closer look at
the complaint and deal with the complaint with justice and impartiality.” 6
The practice of the right to petition in the constitution of the 01st of July 2011 is very clear
emphasising this principle. Now we shall discuss this right at two levels: national and local.
1. Prospects of practicing the right to petition at the national level
The practice of the right to petition is clearly stipulated in the Moroccan constitution of the
first of July 2011 in the aforementioned articles 14, 15 and 139 both on the national and
local levels. A closer read to these articles shows that the right to petition is a considerable
leap towards participative democracy as it emphasises the essential rights and liberties.
The constitution of 2011 includes 14 titles in which 3 refer to rights and liberties. These are
title 2 “the essential rights and liberties” and title 9 “regions and other territorial
collectivities”. This title in its article 139 addresses the practice of the right to petition at the
local level.
Title 12 “the good governance” includes institutions and bodies for the
protection of rights and liberties as well as participative democracy 7.
These three titles in particular and the new constitution in general, support the right to
petition. As any other right, practising the right to petition is related to the general political
and social environments of the country. In addition the applied texts also give some
6
The forum of Shura includes two entities: an elected parliament and a Sherifien board constituted by an
elected committee and designated members by the Sultan.
7
Title 2 (articles 19 to 40)
Title 9 (articles 135 to 146)
Title 12 (articles 154 to 171)
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indication into how to practice this right. The events that the political and legal scene has
witnessed as well as the role of the civil society are all positive signs for good prospects in
terms of the practice of this right.
Morocco is characterised by an openness towards Europe. Morocco is fortunate to have a
position called “The advanced status”. This has impacted on the country being influenced
with the situation in Europe in terms of rights and liberties. It is worth mentioning that the
right to petition in the European Union has witnessed a considerable development which
helped the practice of this right since the European treaty on essential rights has adopted
the right to petition with the agreement of the European parliament in 2000. Other changes
include the possibility of using languages outside the official languages of the members of
the union. It is also possible to submit anonymous petitions to protect the privacy of the
source of the petition. Also, accepting petitions does not require the agreement of all
members of the European committee 8.
When examining the three aforementioned articles, two issues arise: the first one is the
difference between the motion and the petition and the second one is the distinction
between the sections on the right to petition on the national level and the ones on the
regional level. The author believes that the notion of the motion stipulated in article 14 is
not very different to the notion of the petition as mentioned in article 15. In its literal sense,
motion is about submitting a kind request in relation to a particular right. We may request
from an administrative authority to, for example, consider the applicant’s special (financial
or non-financial) circumstances in the context of his relationship with the administrative
bodies. Although the term motion as a legal term is an important and well recognised term,
a request in its literal sense is less strong than the petition.
In Latin language and especially in French, the term is used widely in politics as (motion de
censure). Also in theology, motion is a synonym to ‘efficacious grace’. The term motion has
been used in ancient political systems even pre-Christian times as it is the case with the
Roman Empire. Since then the term has been used with slightly different meanings.
However, the most prevalent meaning relates to a proposal from the members of a
8
Charte des droits fondamentaux de l’union Europeenne.
The petitions committee within the European parliament includes 38 members led by a president and four
deputies of the president.
6
deliberative association. The head of the association may accept the proposal with or
without a vote.
In terms of practicing the right to petition at the national and regional level, article 14
addresses legislation requests submitted from citizens. As this relates to the parliament it
can then be inferred that the article refers to the practice of the right to petition at the
national level. On the other hand, article 139 under the section of the constitution on “the
regions and other territorial collectivities” relates to practicing the right to petition at the
local level. Article 15 discusses the right to submitting petitions to the public authorities
(national and local). Hence its content relates to practicing the right to petition both at the
national and local levels.
The lateness in producing regulatory texts that organise the practice of this right is
problematic both at the legal and political levels. At the legal level, the constitutional texts
are supreme and should not remain static with absent applied texts. This obviously limits
the constitutional power as well as hindering some other important texts bearing in mind
that constitutional texts complement eachother and should be seen as a unity. At the
political level and in terms of the national and international public opinion, there has been
reservations about the political system due to the absence of a number of systematic
applied constitutional laws. It is worth mentioning that constitutional texts are the frame to
the constitutional practice of a number of the rights and liberties. The importance of
systematic texts to the practice of the right to petition at the national level in particular is no
exception given that the right to petition is closely linked to the area of legislation with
petitions being submitted to public authorities. The systematic text determines the ‘hows’
and conditions of the practice.
Systematic texts may appear restrictive in terms of practicing this right as these texts may
put conditions limiting the right to submit petitions to some individuals and/or bodies. In
addition, the practice of this right can also be limited to particular themes, times and places.
Applied rights in this context would rather take a different approach and be guided by the
practices of some well-established democratic countries. As an example, the right to
petition may also be given to non-resident foreign nationals as it is the case in Switzerland, a
country characterised with a semi-direct democracy. In Switzerland people’s initiatives,
referendums, the right to petition do exert a direct influence on the legislative as well as
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executive authorities 9. France can serve as another example with this regard. In article 32 of
bill rights introduction to the French constitution on 24th of June 1793, it is stated that the
right to petition cannot be considered by the authorities if it is prohibited, suspended or
limited 10.
It is worth noting that the general political environment with its political parties and unions
as well as the society will pave the way to systematic laws tapping specifically petitions at
the national level. The importance that these actors attach to the right to petition in
enhancing democracy is likely to influence the activation of the practice of this right.
We maintain that the legislation in this regard should not include crippling conditions that
would limit the scope of practicing this right. But at the same time practicing this right
should be based on a legal ground and specific facts. Also there should be no unethical
motive behind submitting the petition, for example for the purpose of simply hindering the
operations of public institutions11.
At the national level, the process of submitting a petition revolves around the following key
questions: who is eligible to submit a petition? And what topics is a petition applicable to?
To answer the first question, some of the European well-established democratic countries
could serve as a benchmark. In these countries, the right to petition is given to all citizens,
residents and in few countries to the non-residents. This right is also given to associations,
enterprises and organisations which have their headquarters in the country in question. As
regards to the petition topics, these relate to the role of the body to which the petition is
submitted to. For example, the petition submitted to the European Union should relate to
the following:
-the rights of citizens of countries belonging to the European Union and listed in
agreements/treaties.
-Environmental issues
-Protection of consumers
9
Switzerland witnessed more than 400 referendums since the constitution of 1848, while France only
witnessed 9 since the constitution of 1958.
Also see the newsletters of the committee on petitions of the European parliament, October 2013.
10
Sylvain Matton, les droits de l’homme et la philosophie du droit. Hachette 1988, page. 57.
11
Hatem M’rad, participation des citoyens dans la conduit de l’action publique, Ed. Lharmattan, 2003, p. 339.
8
-Free movement of people, products and services in the common market.
-Socio-political matters and issues in relation to employment
-Acknowledgement of personal skills
-All the issues related to the application of laws and regulations of the European Union 12.
We emphasise that at the national level petitions should be at the parliament or
Government level. It is also important to have structured committees in place dedicated to
receive petitions from citizens and residents and establish relationships with the national
authorities through accurate procedures in order to consider the issues addressed by the
petitions.
We strongly believe that the practice of petitions at the national level will be
emphasised by the progress of the civil society. The associations pushing for more human
rights, rights for women, children, consumers, and the environment will be at the forefront
of practicing this right given the awareness and knowledge level of its participants 13.
In addition to the importance of legal texts, time and awareness are crucial factors in
enhancing the practice of this right at the national level. However, it is still important for
Moroccan researchers to use the practice of this right from some democratic countries as a
benchmark to practising the right to petition in Morocco. It is also worth recalling that there
is a discrepancy in the practice of this right with Switzerland at the forefront in this regard.
As per Article 33 of the Federal Constitution, the right to petition gives everyone the faculty
to send to the authorities queries, suggestions, criticisms or complaints, without having to
fear any harm back. The right to petition is not subject to any formal requirement and can
be exercised by both Swiss and foreigners, by natural and legal persons, and also by minors.
In the name of freedom of expression and political rights, the recipient authority is obliged
to take cognizance of the petition. The right to petition allows individuals to exert some
influence on the decisions taken by organs of the state.
The Swiss system is particularly characterised by a considerable power given to citizens.
Citizens can express their views and participate in building public politics without
12
See sections 201 and 202 from the internal law of the European parliament.
Dr. Tamer Kamel Mohamed Al-khazraji, “Recent political systems and general politics”, Dar Majdlaoui
publishers, Amman, Jordan, 2004, Page 115.
13
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intermediary from elected representatives whether it is at the national or local level. The
case of the province (CANTON) of Neuchatel can serve as a good example in this context as
in this province; there has been effective organisation of the right to petition through article
21 of the constitution on the 21st of September 2000. This refers to determining the concept
of petition as well as emphasising the obligation of the recipient authority to provide a
response.
Given the internal social motion in the kingdom of Morocco, the openness of the country
and the international political environment, systematising the right to petition is crucial to
enhancing liberties and the building of participative democracy.
2. Prospects of practicing the right to petition at the local level
The right to petition and submission of requests has been discussed at the regional level in
articles 15 and 139. Article 15 presents the right of citizens to petitions submitted to public
authorities (national or regional). Article 139 on the other hand addresses the right of
citizens and associations to petitions aiming at exercising a right in relation to the board’s
workload in the context of its competence.
Nowadays and in an international context, the territorial collectivities are important tools
for an effective regional policy for development in the political and socio-economic scenes.
territorial collectivities play an increasingly important role in the development of a country’s
democracy. The residents of a collectivity are better placed to be aware of the needs of
their collectivity and its financial, economic and social specificities. Hence, the inclusion of a
collectivity’s residents in its management through the right to petition is a key tool to
respond to general regional needs as well as leading to the prosperity of the collectivity
economically and socially. In other words, the practice of the right to petition will enhance
the participation of residents in the local decision making and the development of the
participatory democracy 14.
As mentioned earlier, article 139 gives the right to citizens to manage their matters and
encourage their participation in the development of the region. This can be achieved
14
ASAAD Abdelmajid, Finance of Territorial collectivities in Morocco, Enajah El Jadida, Casablanca, Morocco,
1991, p. 6 (in Arabic)
10
through participative mechanisms created by territorial collectivities boards for discussions
and negotiations15. This participative dimension of local deputies is an indicator of the
direction towards local democracy. Even in the absence of organic laws, title 9 of the recent
constitution shows clearly the responsibility of regional boards and boards of other
territorial entities in creating mechanisms and channels for communication in order to
enhance residents’ participation in managing their local matters. Offering financial and
advisory opportunities to residents is likely to respond to the general local needs as well as
developing the collectivity economically and socially.
Title 9 on the regions and other territorial collectivities and in particular article 139 discusses
the right to petition at the regional level. However, it is worth examining French texts on the
right to petition in the context of territorial collectivities. We believe that the Moroccan
constitution borrowed this right from the French revised constitution.
French texts on the right to petition at the local level are relatively recent and emerged as a
result of emphasising decentralisation. The law specific to the territorial collectivities
launched on the 2nd of March 1982 stipulates in its first section that a law on enhancing
citizens’ participation in the local life is about to emerge. However, it took 20 years for the
French legislator to launch a law in 27 February 2002 in relation to local democracy. Later
emerged a constitutional law dated on the 28th of March 2003 which provided the basis for
the right to petition at the local level. This constitutional revision emphasises the right to
petition in article 72 in its first paragraph along other laws such as decisional referendum
and the mechanism of consultation of electors 16.
The future practice of the right to petition in Morocco will depend on an organic law and
other applied laws. Yet there remain questions on the scope of this right that revolve
around the following themes:
-The nature of the petition and its conditions
15
See article 136: “The territorial organisation of the Kingdom is based on the principle of free administration,
of cooperation and of solidarity. It assures the participation of the population concerned in the management
of their affairs and favours their contribution to complete and lasting human development”.
16
Loi constitutionnelle numero 276 du 28 Mars 2003 relative a l’organisation decentralisee de la republique.
Loi numero 809 du 30 Aout 2004 relative aux libertes et responsabilites locales.
La contribution de la petition a l’evolution politique dans l’histoire contemporaine: evocation d’une difficile
integration, Droits, numero 37, 2003, page 173 et suivante.
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-Who is eligible to submit a petition at the local level?
-The level of commitment of the collectivity’s board to provide an outcome to the petition.
The scope of practising the right to petition differs between France and Switzerland. In the
context of Morocco there remains a number of questions to be answered especially in terms
of the practicalities. Examples of these questions are: what are the formalities of a written
petition? In which language should a petition be written especially if the right expands to
foreign residents? What is the deadline of submitting a petition? Is it right before the
gathering of the board? Is it a mail or an e-mail submission? Could the submission be made
directly from the part of the parties in question? Should the petition include signatures? In
terms of the content what issues (many) can the petition relate to? Is it possible to the
applied right to define a list of topics that the practice of the right may cover? In terms of
who is eligible to submit a petition, it is wise to take Switzerland as a benchmark. Thus, the
right to petition could be given to any individual even if this individual is a non-resident and
regardless of his/her nationality 17. In this regard, “the petition could be launched by any
person, regardless of his/her age or nationality” 18.
The right to petition remains quite common in Switzerland compared to other European
countries potentially due to the lack of restrictions on the scope of its practice. Legible
people in launching petitions are the electors in a collectivity, hence the residents registered
in electoral rolls. This is also the case of France at the local level. Here it is clear that the
right to practice petition is linked to the right to local elections 19.
In terms of the responsibilities of the board of the territorial unit, in Switzerland, the body
whom the petition has been submitted to is required to get back to the party that had
submitted the petition. In some other countries, this right for a response is conditioned by a
submission sufficiently prior to the board meeting. However, if the petition is submitted
17
See article 33 of the Federal Swiss constitution.
18
See Madiha Faver, [email protected], “petition et cadre juridique”
Also see Mathilde Kerneis, le droit de petition au niveau local, des nuances en outre-mer, Jurisdoctoria (recue)
numero 4, 2010, page 99.
19
See A. Kolz, Hist. Constitutionnelle de la Suisse modern, 1, 2006, Dictionnaire historique de la Suisse,
URL:http://www.hls-dhs-dss.ch/textes/F/F10370.php.
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outside deadlines, then this could be considered in the following schedule of the board
meeting.
The organic law in Morocco as well as applied texts should commit to facilitate the practice
of this right and hence place a greater emphasis on the importance of the right to petition at
the local level to include residents in managing general local issues. However, an important
question that needs to be answered is how can organic laws and applied texts in Morocco
increase the scope of participative mechanisms for dialogue and discussions (e.g.,
petitions) 20.
Providing the right to petition at the local level to electors belonging to the collectivity is
crucial. These electors should be given the opportunity to participation and dialogue given
that they are citizens aware of their collectivity and exert some power in terms of elections.
These electors are also better placed to be aware of the needs of their collectivity and hence
select planned topics for petitions.
At last, the importance given to the future practice of the right to petition whether at the
national or local level in Morocco requires a strong political will as per the emphasis of the
constitution on essential rights and liberties. In addition, building a contemporary
democratic country based on the participation and effective governance requires resilience
and a strong political will which should stem from actors’ convictions rather than a simple
aftermath of the Arabian spring.
The applied texts for the practice of this right in Morocco should also be put into the
political and social context of the country in order for the right to petition to be part of a
participatory democracy. There is also the need for an effective communication with the
civil society and citizens to increase the awareness of citizens of all the rights addressed in
the constitution of the 01st of July 2011. Moreover, the issue of political nurturing (civil
education) and identifying rights and liberties is largely the responsibility of the school, the
media and other means of communication from political parties, unions and civil society.
20
See the international politics, number 193 July 2013, the Pyramids, Cairo, discussion on the subject of “The
Arab spring and its aftermath”, page 53.
13
The practice of rights from individuals and groups towards the governing bodies responsible
for the country’s management (administration and other institutions) will definitely enhance
citizens’ trust in these institutions. Poor institutions along lack of trust are antecedents to
the retreats some countries witnessed after the Arabian spring. Although the democratic
world cheered for the initial changes that followed the revolutions in the Arabian world,
there has also been a great deal of disappointment and a long wait for a realisation of true
democratisation.
Continuing the series of building participatory democracy can be achieved through tools
such as the right to petition for the sake of a coherent society characterised by safety,
freedom, dignity, equity and social justice. Citizens’ awareness of their rights and obligations
is a crucial demand which the realisation revolves around the idea of protection and
preserving the human dignity.
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