Constitutional amendments in parliamentary monarchies

In legal form, constitutional amendments are not neutral acts or technical matters; they are reactions to major political interests and are used by political powers that opposed one another.

The main focus of this section is to draw attention to the diverse strategies that were used by the monarchies to endure the challenges created by the Arab Spring, in particular non-Gulf monarchies including Morocco and Jordan, ¹ and to highlight the constitutional reforms proposed by those two monarchies as a strategy for coun­tering the protests in the first months of 2011.^[443] [444] [445] [446] Morocco defined itself as following ‘moderate Islamic religion, national unity with multiple tributaries, the connotational monarch and democratic choice’. Meanwhile, the Hashemite Kingdom of Jordan describes its system of government as being parliamentary, monarchical and heredi­tary to support the contention that the parliamentary aspects preceded the mon­archical aspects of government, as stated in article 1: ‘The Hashemite Kingdom of Jordan is an independent sovereign Arab State.

These contemporary examples are useful for exploring the extent to which the establishment of CCs can be revolutionary and provide a dominant nature to the public debate over political reform. The Arab Spring generated a spirit of cooperation between revolutionary groups, with calls to implement democratic reforms, demands for democratisation, and attempts to promote human rights and judicial indepen­dence. First, we examine and present an overview of the law, amendments and articles that established and defined the role of the CCs, in Jordan and then in Morocco.

3.1 Jordan

Jordan was influenced by developments in the Arab Spring, and King Abdullah II formed a Royal Commission to review the need to amend the constitu­tion.^[447] After passing through parliament and government approval, the amendments were published and issued in the Official Gazette of Jordan and set to come into effect on 1 October 2011. The major amendments to the constitution included the creation of the CC, with ‘oversight on the con­stitutionality of the applicable laws and regulations’. Articles 58 and 59 of the Constitution of Jordan^[448] articulate the formation of the CC as crucial for the future as a guarantor of the separation of powers, a regulator of respect for the sovereignty of law, and a protector of citizens’ fundamental rights in accor­dance with the constitution.^[449]

Law No.

The Jordanian CC is one of the most recently created CCs in the Arab world;^[452] it was founded in 2012.^[453] [454] [455] It was introduced to promote the role of law and legal transparency. Across history, legal reform has been an ongoing process in every nation.² However, the Jordanian CC faces many challenges that have resulted in calls for its reform. It is important to highlight that the people’s demands following the Arab Spring were not the first attempt by the people of Jordan to demand their individual rights and freedoms. A similar endeavour was attempted in April 1989, when the Jordanian people raised their voices against the corruption and the mono­poly of the elite, and a powerful government that had revoked individuals’ rights and freedoms. During that time, Jordan changed into a state controlled by powerful men rather than a state of law.^[456] This uprising pressed for reform and asked for changes from the authorities. The late King Hussein responded with drastic measures, such as changing the government, holding elections for a new House of Representatives, and forming a commission to propose a National Charter.^[457]

In October 1991, the National Charter was declared.^[458] However, the charter was never implemented; it had merely been a way to appease the people and make it appear as if Jordan had moved towards democracy, while in fact nothing had been reformed.

A closer examination of Jordanian CC provisions^[460] is necessary and even challen- ging,^[461] and can be considered a slippery slope instead of a way to fulfil the people’s

The role of CCs in Morocco and Jordan 151 demands. It worked de facto to suit the government. Examples of such provisions include the questionable appointment system. The nine judges of the Jordanian CC are appointed by government decision that must be approved by the King. By law, only the government, the House of Representatives and the Senate are empowered to bring direct action to the Jordanian CC to decide on the constitutionality of laws. Therefore, neither individuals nor political parties can bring direct action before the Jordanian CC. Furthermore, according to Article 60 of the Jordanian Constitution, the Higher Court will judge whether or not a petition of unconstitutionality should be referred to the Jordanian CC. Thus, it is a long process for cases to reach the Jordanian CC, creating a burden for the parties that might undermine justice due to the lengthy process.³

3.2 Morocco

Almost at the same time, constitutional reforms took place in Morocco, where the king, on the advice of his advisor, formed a Royal Commission.³ After studying the matter, the Commission formulated a draft amendment to discuss reforms in the meetings with civil society members which followed. Ultimately, the conclusion of those meetings was turned into provisions in the Constitution of Morocco.^[462] [463] [464]

Like Jordan, Morocco is another example of a country establishing a new CC with expanded functions to represent a changing Kingdom of Morocco.^[465] King Moham­med VI installed the new CC, following the 2011 Moroccan Constitution,^[466] and the Constitutional Council is to be replaced by the Constitutional Court^[467] following the 2011 Moroccan Constitution.^[468] The judiciary’s independence will be enhanced, according to Article 130 of the Moroccan Constitution.

The 2011 Moroccan Constitution^[470] introduced the Moroccan CC in the name of protecting the rights and freedoms of citizens and ensuring the organic laws, ordinary laws and regulations of both houses of parliament conform to the Con­stitution. Additionally, the Moroccan CC has essential powers to check the con­stitutionality of international conventions and rule on disputes within the context of the new regionalisation of the country.^[471] Moreover, according to Article 133 of the Moroccan Constitution, any entitled individual can plead the unconstitution­ality of a law before any judge in Morocco who in turn has the jurisdiction to refer the case to the Moroccan CC based on merit to support the petition.^[472]

Therefore, the constitutional amendments are a de facto method that the monarchy uses to restore the confidence of the people and re-establish social connection to reform common ground with the people. Drawing attention to the law being equal, the amendments promote social justice to found a true democ­racy. It is worth noting that the 2011 constitutional amendments were not unprecedented but followed Morocco adopting a gradual and systematic approach, where in 1992 constitutional amendments anticipated substantial human rights amendments, restructuring of the powers of the monarchy, increased powers for the constituted bodies and new institutions, such as the Constitutional Council.^[473] Soon after, in 1996, additional constitutional amend­ments that proposed dualism had a positive influence on the legislative process and the organisation of the state authorities. As mentioned, the new constitution of 29 July 2011^[474] proposed transitional arrangements.^[475] As explained earlier, this was the second time that the constituted authority acted drastically to wipe out the former legal system.^[476] Cultivated by the conclusions of the Equity and Reconci­liation Authority^[477] and by reports on the fiftieth anniversary of the Moroccan parliament, the new constitution promised regionalisation of the universal demo­cratic standards.

3.3 Judicial review v. monarchy

A primary question to explore the reform would be to ask if there is a legal phi­losophy behind the reform. We are dealing with two parliamentary-monarchical regimes in Jordan and Morocco. For instance, one of the steps that King Abdullah II of Jordan took while attempting to establish constitutional monarchy⁴ was establishing the Jordanian CC, as mentioned earlier.^[480] [481] It is similar to the Mor­occan CC,^[482] but has the right to strike down any unconstitutional law or regula­tions provided to the Jordanian CC.

The Moroccan CC imposes challenges first to the legitimacy question and second to checks and balances.^[483] Legitimacy in a monarchical regime is not an easy question to tackle. Courts in most democratic monarchical systems are able to announce certain laws as unconstitutional, but the courts are not authorised to strike down these laws. For instance, in the United Kingdom, courts can issue a non-binding declaration of unconstitutionality.^[484] Hence, despite the uncon­stitutionality of a law, the law is still valid.^[485] Under republican systems, the con­stitutional courts provide various venues, meaning that in non-monarchic republican regimes the right to render unconstitutional law as invalid is accep- table.^[486] Therefore, compared to other monarchical regimes, the Jordanian CC and Moroccan CC competencies are unconventional and delicate.

One additional challenge that cannot be ignored is the checks and balances between the king, the CC and the parliament. One straightforward example is that in the Jordanian CC the king appoints judges.^[487] According to the constitutional amendments of 2011, the right to abolish any unconstitutional amendments is given to the Jordanian CCs’ judges,^[488] but the constitutional amendments did not give any weight to the parliament.^[489] Consequently, all the privilege was given to the king.^[490] In Morocco, before the constitutional amendments of 2011, Article 93 handed the parliament members, whom the public elected,^[491] the ability to challenge the king’s decision in the event of his rejection or confirmation of new laws. In the constitutional amendments, the state paradigm based on the rule of law and the constitutional justice theme is a critical element in the contemporary state.⁶

3.4 Groundwork comparison between the Jordanian Constitutional Court and Moroccan Constitutional Court

The following analysis briefly explores a comparison between the functions of the CC of Morocco and the CC of Jordan.

First, the 2011 Moroccan Constitution^[492] [493] [494] introduced the CC in the name of protecting the rights and freedoms of citizens and ensured that the organic laws, ordinary laws and regulations of both houses of parliament conform to the con­stitution. Moreover, a CC has essential powers to check the constitutionality of international conventions and rule on disputes within the context of the new regionalisation of the country. Analogously, Jordan was influenced by this development as mentioned above. The significant amendments to the constitution included the creation of the CC^[495] to articulate the formation of a CC as crucial for the future as a guarantor of separation of powers, a regulator of respect for the sovereignty of law, and protector of citizens’ fundamental rights under the con- stitution.^[496] Besides, the law describes the role of the CC in monitoring the con­stitutionality of laws and regulations in force. Therefore, the constitutional CC’s role is primarily overseeing the constitutionality and regulations as well as inter­preting legal texts.^[497] The CC will interpret provisions of the constitution when requested, either by a decision of the Council of Ministers or by a resolution taken by the Senate or the Chamber of Deputies, and issue its judgments in the name of the king.^[498] Therefore, the CC is a dependable measurement of the judicial sys­tem’s independence, and the CC’s objectivity preserves citizens’ rights and free­doms, as guaranteed by the Jordanian Constitution. Nonetheless, some laws and regulations might violate the constitution.

Second, in Morocco the new amendment to Article 133 of the Moroccan Constitution^[499] deals with an objection of unconstitutionality. It is important to mention that this is a useful tool, introduced in the name of protecting the rights and freedoms of citizens. Hence, the Moroccan CC guarantees that organic laws,

The role of CCs in Morocco and Jordan 155 ordinary laws and regulations conform to the constitution. This mechanism would offer the right for any political party involved in legal proceedings before the CC to challenge a statuary provision if constitutional rights were violated.⁶ This opening of the option of questioning the constitutionality of a law that is already in force leads to the mechanism of ex post constitutional review. The 2011 Con­stitution offers a degree of ex-post review of legislation, as well as ex-ante review. The most critical issue in the Jordanian court is linked with the mechanism pro­vided by Article 11 of the 2012 law. It provides that a judge, when deemed jus­tified, cannot refer the question directly to the CC when the parties raise a challenge to constitutionality during a judicial proceeding. Rather, she or he must refer the case to the Court of Cassation, which is the only judicial body entrusted with the exclusive power to raise the question of constitutionality. The Jordanian law adopted a rigid and centralised system of control over the lower courts, which does not favour access to the CC, while in the Moroccan system the power of referring questions of constitutionality is widespread among all courts.

Third, the 2011 Constitution is the first Moroccan Constitution to allow pri­vate litigants to challenge the constitutionality of laws concerning the determina­tion of the conditions and modalities of raising the issue of unconstitutionality of a law.^[500] [501] Under Law No. 15.86, private litigants are allowed to raise the issue of constitutionality before any courts, including for the first time the Court of Appeals and the Court of Cassation.^[502] In other words, even if a litigant did not raise the issue of constitutionality before the lower court, he or she can still bring it up before the higher courts, including the Court of Cassation.^[503]

Nevertheless, the Jordanian system^[504] keeps the exclusivity of governmental bodies in submitting complaints, which causes a restrictive prohibition on individuals to use the path of the CC and limits their right to access the court.^[505] Furthermore, in Jordan, there is a requirement that complaints need to pass a double filter, either through the institutional path - by going through governmental bodies - or through a referral from the Court of Cassation. Hence, the Court of Cassation conducts pri­mary reviews of cases before referring them to the CC.^[506] For instance, in Germany, Spain and Turkey, the direct complaint by individual or groups is sent to the CC for the protection of fundamental rights. The arguments put forward in favour of the direct individual complaint point out the possibility of offering citizens a ‘residual’ remedy before a body like the CC. When all the ordinary remedies have been

exhausted, or when a case cannot be brought before an ordinary judge, the recourse to the direct individual complaint could favour the public’s knowledge of the role of the CC and enhance in the future a broader access to the CC by the lower courts and individual judges.^[507]

Fourth, in Morocco, the CC may also now rule on the conformity of interna­tional conventions with the constitution. While the Jordanian court does not include this directly, as part of Morocco’s international legal obligations recog­nised in international law, it is included as reflected in the jurisprudence of inter­national human rights bodies, while in Jordan, it was not mentioned as a direct obligation by the CC law.

Finally, in both Morocco^[508] and Jordan, CC decisions are binding, not subject to appeal, and must be enforced by public authorities. Furthermore, they both have an executive branch that contains vast power concerning appointments for the CC judges. In addition, both CCs indicate that the courts’ proceedings are confidential.^[509]

To conclude, it is important to highlight that developments and intentions have shown a growing commitment to carrying out an efficient constitutional review and accordingly a move towards judicial independence. Both CCs are trying to push their way toward a useful judicial review of legislation. The judicial and political traditions and the current needs of every country play an essential role in the framework and the functioning of the system of constitutional review. Accordingly, the functions of the CCs have critical importance regarding ensuring the court’s competence, independence and impartiality, as well as its effectiveness in upholding the rule of law and protecting and enforcing human rights.

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