The 2011 Constitutional reform in Morocco: more flaws than merits. Jean Monnet Occasional Paper No. 07/2014

Introduction. In the speech given to both Houses of Parliament on 11 October 2013 during the first parliamentary session, King Mohammed VI said that the “Moroccan democratic model” was “a precursor in the region as well as on the continental level.”1 Similarly, with the purpose of stressing the “democratic exceptionalism”2 of the country, the new government, led by Abdeilah Benkirane, emphasised that Morocco represents a “third way” compared to countries such as Tunisia, Libya or Egypt since it “…has not embarked on a limited process of reform from the top, driven and controlled by the King. Nor has it experienced a revolution brought a angry citizens rising up against the regime. Rather, it has chosen an alternate path based on a genuine partnership between the King and the PJD (Parti de la justice et du développement) that promises to bring about more far-reaching reform than palace alone would grant, without the disruption caused by uncontrolled popular upheaval.”4 It should not be at all surprising that the regime and the new Government consider Morocco a “democratic model” or a “third way.” After all, they are refe country. What is harder to understand is that when discussing the Arab uprisings, even prominent Western political leaders, representatives of the European Union institutions and the mainstream media (when they do not forget about Morocc to praise the process of democratic reform carried out by Mohammed VI. For example, on 12 September 2012, Hillary Clinton, former US Secretary of State, said, “in many ways, the United States looks to Morocco to be a leader and a model […] On political reform, we have all seen remarkable changes taking place across North Africa and the Middle East. I commend Morocco and your government for your efforts to stay ahead of these changes by holding free and fair elections, empowering the elected parliament, taking other steps to ensure that the government reflects the will of the people.”5 Similarly, former French President Nicolas Sarkozy sang the praises of the process that led to the adoption of the new 2011 Constitution: “King Mohammed VI has shown the path towards a profound, peaceful and modern transformation of Moroccan institutions and society […] France fully supports this exemplary process.” Interestingly enough, even at the European Union level the constitutional reform that took more far-reaching reform than palace alone would grant, without the disruption caused by uncontrolled popular upheaval.”4 It should not be at all surprising that the regime and the new Government consider Morocco a “democratic model” or a “third way.” After all, they are refe country. What is harder to understand is that when discussing the Arab uprisings, even prominent Western political leaders, representatives of the European Union institutions and the mainstream media (when they do not forget about Morocc to praise the process of democratic reform carried out by Mohammed VI. For example, on 12 September 2012, Hillary Clinton, former US Secretary of State, said, “in many ways, the United States looks to Morocco to be a leader and a model […] On political reform, we have all seen remarkable changes taking place across North Africa and the Middle East. I commend Morocco and your government for your efforts to stay ahead of these changes by holding free and fair elections, empowering the elected parliament, taking other steps to ensure that the government reflects the will of the people.”5 Similarly, former French President Nicolas Sarkozy sang the praises of the process that led to the adoption of the new 2011 Constitution: “King Mohammed VI has shown the path towards a profound, peaceful and modern transformation of Moroccan institutions and society […] France fully supports this exemplary process.” Interestingly enough, even at the European Union level the constitutional reform that took place in Morocco was considered an extremely positive step taken by the country, as well as a means to strengthen the cooperation between the EU and Morocco. Indeed, according to the High Representative Catherine Ashton, this reform “constitute[s] a significant response to the legitimate aspirations of the Moroccan people and [is] consistent with Morocco’s Advanced Status with the EU.”7 When it comes to the media, it is worth noting that following the ratification of the 2011 Constitution, The New York Times headlined: “All Hail the (Democratic) King.” Even sections of the academic literature have commended the constitutional reform carried out by the Moroccan Sovereign.9 In this paper I argue against the aforementioned idea, according to which Morocco should be considered a model in the region, and in particular I show that the constitution-making process, the 2011 Constitution and its subsequent implementation have more flaws than merits. Accordingly, this paper proceeds in five steps. First of all, I examine the reaction of the regime to the upheavals that broke out in the country after 20 February 2011. Secondly, I analyse the process of constitution showing its main strengths and weaknesses, and comparing it with other constituent processes that took place in the region following the Arab uprisings. In the third section, I highlight the most significant elements of continuity and discontinuity with the previous 1996 Constitution. The fourth section deals with the process of implementation: specifically process is proceeding quite slowly and that in some cases ordinary legislation is in contrast with the new Constitution and international human rights treaties. Moreover, I discuss the role that the judiciary and the Constitutional Court can play in the implementation and interpretation of the Constitution. Finally, I draw some concluding remarks.

Die Europäische Union und das Rahmenübereinkommen zum Schutz nationaler Minderheiten: ignorieren, parallell “umsetzen“ oder gar beitreten? = The European Union and the Framework Convention for the Protection of National Minorities: ignore, "implement" or even join? EDAP Paper 04/2014

This paper looks at the Council of Europe Framework Convention for the Protection of National Minorities (FCNM) through the lense of European Union law. It does so by posing four major questions: does the fact that 24 of 28 Member States of the EU ratified the FCNM have any legal implications for the European Union itself? Secondly, turning to the national level, does it make a difference for the implementation of the FCNM whether or not a state that has ratified the FCNM is also a member to the European Union? Thirdly, returning to the European Union itself, can and should the EU accede to the FCNM? Or are there, finally, any means beside ratification that would allow the European Union to implement the objectives and obligations as enshrined in the FCNM? These four questions are analysed in detail before the paper concludes on the potential role of the European Union in managing diversity and protecting (persons belonging to) minorities.