NATIONAL HUMAN RIGHTS COUNCIL DRAFTS MEMORANDUM ON ORGANIC LAW ON HIGH COUNCIL OF JUDICIAL POWER

The National Human Rights Council (CNDH) drew up a memorandum about the organic law on the High Council of the Judicial Power, by virtue of the powers vested in it by Constitution and its founding law, and in a bid to contribute to public debate on the reform of justice.

The proposals put forward in this memorandum, which the CNDH adopted at its ordinary session, draw on different national and international reference standards and declarations, in particular 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 the memoranda presented by Moroccan and international NGOs on justice reform.

The CNDH also carried out a comparative study of laws governing the supreme judicial councils of several advanced democratic countries (France, Belgium, Spain, Romania and Bulgaria).

Thus, the CNDH proposes that the Organic Law on the High Council of the Judicial Power should include a set of rules to ensure the Council’s financial and administrative autonomy.

In the same vein, the CNDH’s proposals on the election of the representatives of judges aim at strengthening the position of the Council, through its executive president, 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.

Concerning the rights and duties of the Council members, the CNDH recommends that some rights and duties of these members should be enshrined in the Council’s organic law. These mainly include the requirements of independence, impartiality, integrity and professional secrecy and the obligation to declare conflicts of interest that may influence the decisions of the High Council.

In terms of the Council’s mandate and powers, the CNDH recommends five core functions: managing judges’ career development, providing advisory opinions, conducting studies, ensuring control, audit and inspection, and developing a code of ethics and disseminating case law.

To strengthen guarantees for the evaluation of judges’ performance, the CNDH proposes that any judge who challenges the assessment of his professional performance could refer the case to the Promotion Committee. In the same context, it suggests offering judges the possibility to self-assess their performance, as part of a comprehensive assessment approach.

With regard to the disciplinary proceedings against judges, the CNDH recommends that the organic law enshrine several relevant constitutional provisions, namely: the participation of well-experienced inspecting judges in disciplinary matters, the qualification of any failure by a judge to shoulder his obligations of independence and impartiality as gross professional misconduct, and the possibility to challenge for abuse of power individual situation decisions issued by the High Council of the Judicial Power before the highest administrative jurisdiction of the Kingdom.

Concerning the organization and operation of the High Council of the Judicial Power, the CNDH memorandum suggests that the Council be composed of the following bodies: a general assembly that comprises all the Council members and has general deliberative competence on all the functions devolved on the Council; a bureau which includes, besides the executive president, three members elected by the general assembly; standing committees which prepare draft opinions and decisions of the general assembly and carry out studies and research required from the Council or which the Council conducts upon its own initiative; a secretary general appointed by the executive president from outside the members of the Council, after approval by the general assembly; and judicial inspection invested with the mission of auditing jurisdictions.

Regarding the operation of the Council, the CNDH puts forward two proposals. The first is related to the number of sessions, suggesting that the Council should hold at least two sessions a year in accordance with Article 116 of the Constitution. The second relates to the rules of procedure of the Council, which should be voted by the general assembly of the Council and submitted to the Constitutional Court to ensure compliance with the provisions of the Constitution and the Organic Law on the High Council of the Judicial Power.

Finally, the CNDH puts forward a set of proposals with regard to the training of judges, court clerks, lawyers and other legal professionals. For the Higher Institute of the Judiciary, it is recommended to review the composition of its board to strengthen the presence of the High Council of the Judicial Power therein, by giving its chairmanship to the executive president of the Council.

In the medium term, the CNDH proposes two scenarios. The first is to strengthen the research function of the Institute in order to assist the Council in discharging its new responsibilities. The second scenario is to create a higher institute of judicial studies affiliated to the Council. Given the specificity of court clerks’ training, it is proposed to create a national school for court clerks to provide initial and continuing training of court clerks and staff in all their working fields.

To complete the supply of training in legal and judicial professions, the CNDH proposes to establish regional training institutes, pursuant to the provisions of Law No. 28-08 amending the law on the practice of the lawyer’s profession and the decree fixing the conditions of their creation and operation.

The CNDH finally proposes to set up a justice training institute to provide training to all other categories of legal professionals, with a system for skill-validation and certification similar to that provided by the law on the practice of the lawyer’s profession.

It should be noted that under the new Constitution, the High Council of the Judicial Power replaces the High Council of the Judiciary. Article 113 of the Moroccan Constitution stipulates that the High Council of the Judicial Power “shall ensure the implementation of the guarantees granted to 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”.