NATIONAL HUMAN RIGHTS COUNCIL DRAWS UP MEMORANDUM ON HIGHER COUNCIL OF JUDICIAL POWER’s ORGANIC LAW

The (Moroccan) National Human Rights Council (CNDH) drew up a memorandum on the Higher Council of Judicial Power’s organic law, in fulfillment of its mandate and by force of the inherent powers entrusted by the constitution and its founding law.

Adopted by the Plenary of the council, the memorandum was drafted on the basis of the different national and international normative standards and declarations, including constitutional provisions relating to the judiciary, the relevant recommendations of the Equity and Reconciliation Commission, the International Covenant on Civil and Political Rights, the Basic Principles on the Independence of the Judiciary, the Bangalore Principles of Judicial Conduct, the European Charter on the Statute for Judges, as well as memoranda drafted by Moroccan and international NGOs on justice reform.

Before drafting its memorandum, the Council conducted a comparative study of laws governing judiciary councils in many democratic and advanced countries (France, Belgium, Spain, Romania, Bulgaria, etc.).
In its memorandum, CNDH proposes that the Higher Council of Judicial Power’s organic should include a set of rules to ensure the council’s financial and administrative autonomy.

CNDH’s proposals and recommendations on the election of the representatives of judges aim at strengthening the position of the Higher Council of Judicial Power (HCJP), through its Executive Chairman, regarding in the regulation of the electoral process. They also aim to ensure equitable representation of women magistrates, in compliance with the constitutional provisions on parity.

CNDH also recommends that some fundamental rights and duties of the members of this yet to be created council should be enshrined in the council’s organic law. These mainly include the obligation to perform one’s tasks and duties in full compliance with the requirements of independence, impartiality and integrity, the obligation to respect professional secrecy and the obligation to make known any conflict of interest that may influence the decisions of the Higher Council.
In terms of the HCJP’s mandate and powers, CNDH recommends five pillars: Managing judges’ careers, discharging an advisory mandate, conducting studies, ensuring control, audit and inspection, putting forward ethical regulations and disseminating jurisprudence.

In order to strengthen the guarantees for the evaluation of magistrates, CNDH suggests giving judges who challenge the assessment of their performance the right to appeal before the Promotion Committee. In the same vein, CNDH proposes to grant to magistrates the ability to self-assess their performance, within the framework of an overall assessment approach.

The memorandum also addresses issues related to disciplinary proceedings against judges. In this regard, CNDH recommends that several constitutional provisions should be enshrined in the the council’s organic law. These include, in particular, assistance by experienced judge inspectors in disciplinary proceedings and measures, considering any failure by a judge to respect the obligation of independence and impartiality as a serious professional misconduct, as well as the possibility to appeal, before the highest administrative court in the Kingdom, any abuse of power against the individual decisions of the higher council.

Regarding the functioning of the new Council, CNDH proposes the following structure: a General Assembly composed of all members of the Council mandated to deliberate on all issues and points related to the council’s mandate and prerogatives, a board made-up of the Executive Chairman and three members elected by the General Assembly, standing committees mandated to draft opinions and decisions for the general assembly and to conduct studies and researches that other competent stakeholders request from the Council or which the council conducts upon its own initiative, a Secretary-General to be appointed by the executive chairman, but not among the members of the Council, after approval of the general assembly and a judicial inspection body.

As for the organization its council, the memorandum suggests that the Higher Council of Judicial Power should not hold less than two sessions per year. It recommends that the rules of procedure shall be voted and adopted by the General Assembly and submitted to the Constitutional Court to ensure compliance with the provisions of the Constitution and the Council’s organic law.

With regard to the training of judges, clerks, lawyers and other legal professionals, CNDH suggests several measures to be taken. It recommends reviewing the composition of the Board the Higher Institute for the Judiciary in order to strengthen the position of the Higher Council in this board. The executive chairman of the Higher Council shall chair the Board of the Institute. In the medium term, CNDH has two recommendations: strengthen research within the Higher Institute for the Judiciary in order to help discharge the new responsibilities assigned to the Higher Council and create an Institute of Advanced Studies on Justice, affiliated with the Council.

Taking into consideration the particularities of the training of court clerks, the memorandum also suggests the creation of a national school to ensure initial and continuing training of court clerks and civil-servants working in the different judicial departments.

In order to have a comprehensive training offer on legal and judicial professions, CNDH recommends setting up regional training institutes, in accordance with Article 6 of Law 28-08, reforming the law relating to the exercise of lawyers’ profession and the Decree of conditions for their creation and operation. In the same vein, CNDH recommends creating an institute for justice jobs, which must provide training to all other categories of legal professionals. This institute should have a validation and certification system similar lawyers’.

Under the new Constitution, the Higher Council of Judicial Power replaces the Supreme Council of Magistracy. Article 113 of the Moroccan Supreme Law stipulates that the Higher Council of Judicial Power “shall ensure the implementation of the guarantees granted judges, especially with respect to their independence, appointment, promotion, retirement and discipline. It shall, on its own initiative, draw up reports on the status of justice and the judiciary, and make appropriate recommendations on the subject. The Council shall, at the request of the King, the Government or the Parliament, give a detailed opinion on any matter related to justice, subject to observing the principle of separation of powers.”

The memorandum is available in Arabic and French. It can be downloaded from CNDH’s portal: http://www.ccdh.org.ma/spip.php?article9046