Moroccan Legal Framework: Rules and Conventions

The rules They are also called "regulatory law", and they refer to all the decisions produced by the executive power (govern) or by the different administrative authorities (municipality, wilaya, province...). In principle, these regulatory texts do not all have the same binding force, it all depends on the authority that generates them. Thus, the different kinds of texts regulations are situated, in relation to each other, in an order hierarchical27 As for the object or the field of the regulations, article 72 of the constitution specifies that matters other than those which are within the scope of the law belong to the regulatory domain, that is to say, they are of the rests with the government. 26 For example, the current Commercial Code of 1996 provides in its Art. 733 that the provisions of books three and five shall not come into force one year after the publication of this law. This technique allows the practitioners to take the time to study and learn about the provisions of the new law. International conventions These are Agreements between two or more States28, the purpose of which is the regulation of a specific area between states. Basically when an agreement between entities that are not recognized as States internationally (member states of a federal state, provinces, municipality, public establishment, etc. does not constitute an agreement international29, any more than are contracts between individuals or between states and individuals. A distinction can be made, depending on the number of Contracting States, between bilateral and multilateral agreements. However, this difference is purely formal and only affects certain elements of the procedure for conclusion, not the legal nature or the effects of the agreements. Indeed, whether it is a bilateral or multilateral convention, the Convention shall be deemed to be law having binding force only when ratified and published. Ratification thus results from a law passed by Parliament, and publication in the official bulletin takes place in the same conditions than a national law. The superiority of the international convention over national law is today clearly affirmed by the constitution30 Various terms are used in international practice to designate international conventions: treaty, agreement, arrangement, pact, charter, protocol. As an example, we can cite the twinning agreements between two towns from different countries, with the aim of promoting socio-cultural cooperation between the two cities. In principle, this type of agreement has nothing to do with with international conventions. The preamble to the Moroccan constitution affirms in this sense that the Kingdom of Morocco undertakes to "grant to international conventions duly ratified by him, within the framework of the provisions of the constitution and §IIIThe hierarchy of legal norms The different sources of legal rule therefore imply many names as we have determined (law, convention international law, regulation, decree, order...), but these do not have the same binding force in the organization of society. It is moreover for this why the theorist Hans Kelsen developed the principle of hierarchy legal standards according to which no text can go against a another who would be superior to him , in other words the level legal text superior prevails over that of the lower level32. In the constitution Moroccan this principle is confirmed by the 3rd paragraph of article 6, which specifies that "are affirmed the principles of constitutionality, hierarchy and obligation to publish legal standards" To keep to a general presentation, we can organize the different texts of laws according to the following pyramid: of the laws of the Kingdom, in respect of its immutable national identity, and from the publication of these conventions, the primacy over the internal law of the country, and harmonize accordingly the relevant provisions of its national legislation". Philippe Malinvaud, introduction to the study of law, LITEC, 13th ed. p. Thus the regulation must not violate the law which in turn must not violate the provisions of the constitution. In the same way the rules newly adopted must respect the previous level rules higher but can modify previous rules of the same level. She logically leads to the abrogation of the contrary lower rules. The Arabic version of the text is more explicit than the French version in concerning the confirmation of the principle of the hierarchy of norms “The constitutionality of legal rules, their statute, and the obligation to publish them are binding principles”: juridiques 1. Constitutional law: As we pointed out above, the constitution is the supreme law of the nation, from this text derives a certain number of legal rules, which we commonly call by law constitutional, and which have a certain superiority over the others. This superiority of the constitution comes from the fact that it determines the foundations of state formation, the political and economic regime of the State, the nature of the powers and the attributions of the major institutions, as well as that the guarantee of rights and freedoms for citizens... 2. International conventions: These are signed agreements or treaties by several sovereign States and whose content becomes a law with binding force for the signatory countries. By relying on the constitution Moroccan law, this confirms the superiority of international law over the law internal. 3. Organic laws: These are laws whose adoption is provided for by the Constitution to specify the methods of organization and operation public authorities34 The organic laws are cited in the various articles of the Constitution, there are a total of 19 organic laws: ● the law ● constitutional ● conventions ● international ● organic laws ● Ordinary laws ● regulatory laws Adopted according to a specific procedure, it is necessarily submitted to the control of the constitutional court before its promulgation35 . 4. Ordinary laws: These are legislative texts passed by Parliament according to the procedure established by the Constitution and in one of the areas expressly provided for in section 71. 5. Regulatory laws: These are the regulatory acts that come back naturally within the competence of the government: ➢ The Royal Dahir: the constitution granted the King the right to exercise his executive power through the Dahirs. Thus, the King establishes dahirs in the regulatory field 1- Organic law on the Amazigh language (article 5) 2- Organic law on the National Council for Languages ​and culturemarocaine (article 5) 3- Organic law on political parties (article 7) 4- Organic law regulating the right of citizens to submit legislative proposals (Article 14) 5- Organic law regulating the right of citizens to present petitions to public authorities (article 15) 6- Organic law on the right to strike (article 29) 7- Organic law relating to the Council of Regency (article 44) 8- Organic law specifying the list of establishments and strategic companies concerned by appointments to civilian jobs (article 49) 9- Organic Law on the House of Representatives (article 62)10- Organic Law on the Chamber of advisers (section 63) 11- Organic law on the functioning of the commissions investigation (section 67) 12- Organic Finance Law (article 75) 13- Organic law defining the rules relating to the conduct of government business (section 87) 14- Organic law regulating the status of magistrates (article 112)15- Organic law on the High Council of the judiciary (article 116) 16- Organic Law on the Constitutional Court (article 131) 17- Organic law on appeal for unconstitutionality laws (article 133) 18- Organic law on regionalization (article 146) 19- Organic Law on the Council economic, social and environmental (article 153) 35 Article 85 of the Moroccan constitution of 2011. such as appointment to civil or military functions, delegation of power to the head of government... ➢ The Decree: it is a regulatory act established either by the head of the government or by several ministers. ➢ The decree: The ministerial decree is an administrative act issued by a minister in the organization of his ministry ➢ The circular: It is a purely organizational act which does not have not binding force like the other texts. Section II: Traditional Sources of Law The rule of law first has its source in the texts previously presented, but by the force of things, these texts sometimes appear unsuited to the specificities of Moroccan society. It seems more appropriate to look for adaptation or supplement as needed. This explains why the right Moroccan faithful to the Muslim tradition, continues to take the Sharia as a legislative reference in certain areas. In the same way, custom constitutes a complementary, and above all traditional, source to the Moroccan law. §I: Custom Custom can be defined as a practice that emanates directly from the people, it has a habitual character which, as a result, tends to arise in unwritten rule of law. Contrary to statutory provisions or regulations, custom is not the work of the State, it emanates from the will direct from the people. We note first of all that custom differs from Law by its source. Second, custom opposes law by its slow and undeliberate formation. This slow creation has the advantage of perfectly adapting the rule of law to the economic and social needs of a category of individual (traders, artisans, etc.). Moreover, the custom is not frozen like a law, it evolves according to the needs and mores of the group. To speak of a true custom, this presupposes at least the meeting of a material element and a psychological element: ❖ The material element: this element supposes that the practice which has object the creation of custom results from a fairly large number of similar acts, and that it be recurrent, that is to say applied usual way. ❖ The psychological element: this element supposes a real belief of the group to act under a binding rule. There custom is therefore perceived as obligatory behavior by l'opinion commune. Furthermore, the uncertain content of the custom gives rise to problems of evidence before the judge. It is thus necessary to distinguish between general custom and strictly local custom. If it is a general custom, such as the customary maxims or general trade usages, the judge must know it and apply it. The applicant does not have to provide proof of the existence of the customary rule and the judge must apply it ex officio. By against, if it is a local or professional custom, the judge may ignore. In this case, the person who intends to benefit from it must provide proof of the existence of the custom. This proof is done by all the proper means to carry the conviction of the judge: testimonies, expertise... §II: The religion Contrary to secular countries36, it is difficult to deny the place of the rule religion in the Moroccan legal system. The Moroccan constitution expressly provides that the religion of the Moroccan State is Islam37, from its side the new family code has remained faithful to the Muslim tradition to the image of the majority of Muslim countries. In the same direction several legal provisions of a religious nature are scattered throughout the different codes and laws applicable in Morocco38 . But this observation should not lead us to believe that Moroccan legislation has as a basic reference the precepts of Sharia in all areas. Indeed, the Moroccan State in the search for economic development and social appropriate calls more and more on European rights, in particular to French law. Moreover, a simple reading of the various texts of laws shows to what extent our law is influenced by this European source. 36 Secularism is a system based on the principle of the separation of state and religion. Appeared for the first time in France with the French Revolution of 1789, it was gradually put in place for more than a century and today several states claim to be than secular states. Among these States we can cite the European States, the Türkiye, Albania... 37 According to Art. 3 of the 2011 constitution, Islam is the state religion Moroccan. 38 For example, we can cite: - the prohibition of loans at interest - the prohibition of the public break of the young person during Ramadan - criminalization of public drunkenness - Art. 986 of the DOC nullifies any company that has objects of things prohibited by religion. In summary, it can be said that our legal system39 is influenced by the law European while remaining faithful to the Muslim tradition. Section III: Interpretative sources The rule of law is drafted in principle in general terms, but is intended to organize specific situations, so to know if such a legal rule corresponds to such a situation, it must be interpreted. This task is assigned to principle either to doctrine (§I) or to case law (§II). §I: To the doctrines The word “doctrine” designates the legal literature or all the opinions expressed on the law by its specialists. We will see the modes of expression of the doctrine (I), then we consider the function (II). I. Modes of expression of the doctrine The doctrine covers the most diverse works that are developed mainly by jurists, especially theoreticians such as law professors, lawyers, magistrates, notaries, author of doctoral thesis, etc. 39 There are several legal systems around the world, we often speak of ideological systems (secular or religious) liberal systems such as the common law system (England, Scotland, Canada to exception of Quebec, Ireland…) and the Roman-Germanic system (the France, Belgium, Spain, Germany…). See G. Taormina, Introduction to law, hatchet superior 2006 p. 42 et seq. Three types of writing can be distinguished: ➢ General works devoted, in one or more volumes, to a specific branch of law (civil law, commercial law, criminal law, etc... ➢ Specialized books on limited topics. These are doctoral theses or monographs with a more utilitarian purpose, intended primarily for practitioners. ➢ Periodicals in the form of articles, studies or chronicle of a few pages devoted to a specific theme. II. The functions of the doctrine One author said that "to measure the role of doctrine, it suffices as a experience of having a non-lawyer read the Civil Code: …. The unfortunate won't understand anything." The role of doctrine therefore consists essentially in participate in the understanding of the law through analysis and commentary legal texts. It therefore has an educational role. However, the role of lawyers is not limited to studying and commenting on the written rule. They cannot content themselves with interpreting it, studying the legal institutions only, but also to criticize their structure by looking for flaws. Indeed, lawyers through their productions have the duty to show the legislator the defect of the rule of law so that the latter intervene to modify it. It is said to have the force of proposal. Inspired by history and comparative law, the jurist must propose rules better, more adapted to social and economic needs. In this sense, the doctrine participates in the creation of the rule of law or more exactly in its improvement. The jurist's mission is to help create the rule of right, as it comes as close as possible to social reality. The legislator is influenced by doctrine. Most often, projects or bills are drafted with the close collaboration of professors of law and practitioners. This is how a commission, made up essentially by law professors, participated in the reform of the code of commerce of 1996. In the same sense the judges often refer to the doctrine when applying a rule of law, particularly when it it is a rule of law whose content is dark and ambiguous. §II: Jurisprudence Jurisprudence refers to all the decisions rendered by the various courts of the Kingdom. We speak of judgment when the decision is made by a court of 1st instance, and judgment when the decision is rendered by the Court of Appeal or the Court of Cassation. To render a judgment or a judgment under the best conditions, the judge must first carry out a work of analysis and interpretation of the legal or regulatory provisions (law, decree, order, etc.). Unlike the Anglo-Saxon system (England and USA) where the judge participates in the creation of the rule of law, in Morocco as in France, the role of the judge consists essentially in the application of the rule of law to the occasion of a trial, i.e. its role is limited to the choice of the rule of law capable of solving the legal problem posed. So this is not a formal source of the rule of law, but only from an interpretive source. However, the interpretation identified by the magistrates may end up having a general scope. It's that which occurs, in fact, when jurisprudential solutions are repeated constantly and without interruption. In this respect, it is necessary to apart from the case law of the Court of Cassation, which benefits from an authority particular, given the fact that it is at the top of the hierarchy judicial. 40 We will come back to this later in this course.