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Rabat – Morocco’s Constitutional Court has ruled that several key provisions in the newly proposed Civil Procedure Code are unconstitutional. The law, known as Law 23.02, was referred to the Court by the President of the House of Representatives last month to ensure its compatibility with the 2011 Constitution.
Although much of the proposed text was approved, the Court struck down a number of critical articles, saying they undermine judicial independence, legal clarity, and the right to a fair trial. The decision marks a setback for Justice Minister Abdellatif Ouahbi, whose ministry spearheaded the reform process.
Article 17 – Undermining legal finality
The Court rejected the first paragraph of Article 17, which allows the public prosecutor to request the cancellation of final court rulings. The court said this violates the principle of legal certainty, which is a core element of the right to a fair trial. Letting prosecutors reopen closed cases, they argued, “harms the principle of legal certainty.”
The Court added that it would unjustifiably interfere with the stability of judicial decisions.
Article 84 – Delivery of court summonses
The Court also rejected the fourth paragraph of Article 84, which allows court summonses to be delivered based on assumptions, like someone simply claiming to be the recipient’s agent or a family member appearing to be over 16. The Court said this created legal uncertainty and could harm the right to a fair trial. It ruled that such vague rules violate the Constitution, so this part and other related articles were declared unconstitutional.
Article 90 – Remote hearings without clear rules
The last paragraph of Article 90 allows for remote court hearings, such as through video conferencing. While the Court acknowledged the usefulness of such tools, it said the article did not include enough guarantees to protect the rights of defendants and plaintiffs, particularly their ability to participate fully and understand proceedings.
Articles 107 and 364 – Gagging lawyers
The Court found that the last paragraph both of Articles 107 and 364 because they said parties have the right to get a copy of the Royal Commissioner’s legal opinions without being allowed to respond to them.
The Court explained that the right to defend oneself is essential in a fair trial, and parties must be able to comment on all opinions affecting the case. Blocking any response to these opinions unfairly limits the defense and violates the constitutional right to equal defense, so these parts were ruled unconstitutional.
Article 288 – Technical error with legal consequences
Article 288 was declared unconstitutional because it referred to the wrong legal article. It pointed to Article 284, which deals with who is responsible for keys to sealed doors, instead of Article 285, which explains the proper procedures to follow when a will or other documents are found sealed. This mistake made the law unclear and confusing, violating the constitutional requirement that laws must be clear and understandable.
Article 339 – Silent rulings are not acceptable
The Court invalidated Article 339, which would allow judges to issue decisions without providing written reasoning in certain cases. The Court firmly stated that all judicial decisions must include a legal explanation, as required by the Constitution, to allow for transparency and possible appeal.
Articles 408 and 410 – Ministerial overreach on case transfers
One of the most strongly worded rejections concerned Articles 408 and 410, which give the Minister of Justice the power to transfer cases between different courts or regions. The Court said this violates the principle of judicial independence and could be used to pressure judges or manipulate outcomes.
The Court stressed that case management decisions must remain in the hands of the judiciary, not the executive branch, which includes the government and the Minister of Justice. Only judicial authorities, like the Prosecutor General at the Court of Cassation, have the right to oversee the proper conduct of trials and request such referrals.
Giving this power to the Minister of Justice, a member of the executive, violates the independence of the judiciary and goes against constitutional principles.
Articles 624 and 628 – Digital justice must remain judicial
Finally, the Court struck down Articles 624 and 628, which would have given the Justice Ministry control over the digital infrastructure used by courts and the authority to assign judges to use it. The Court ruled that these responsibilities belong to the Higher Council of the Judiciary (CSMJ), not the Ministry.
While the constitution allows cooperation between branches of government, judicial work must remain fully independent, the court says.
“The mere ‘coordination’ with the mentioned governmental authority (the ministry of justice) regarding it is considered a violation of the principle of separation of powers and the independence of the judiciary, as established by Articles 1 and 107 of the Constitution,” says the court.
