Tuesday, March 25, 2014

Morocco: Will Morocco's decision to end military trials for civilians set a precedent for the region?


The Cairo Institute for Human Rights Studies (CIHRS) welcomes the decision of the Moroccan cabinet on 14 March 2014 to approve new draft legislation regarding the military judicial system. Upon its adoption by the Moroccan parliament, the bill will completely prohibit the referral of civilians to trial before military courts in times of peace, regardless of the nature of the alleged crime or the status of the accused and even if military personnel were allegedly involved in the perpetration of the crime in question. The bill further prohibits the military trial of civilians who work in establishments affiliated with the armed forces, as well as the referral of any individual under 18 years of age to military courts.

CIHRS considers that the decision of the cabinet to approve this bill, taken during a meeting chaired by the Moroccan monarch, represents a critically important step towards improving guarantees for fair trials, reforming the Moroccan judicial system, and putting a necessary end to the appalling pattern of exceptional trials seen in the country. Such trials blatantly violate the amended Moroccan constitution, which does not allow for citizens to be deprived of a fair trial before the civilian court of appropriate jurisdiction.

CIHRS further considers that the approval of this bill represents a move towards establishing in Morocco the principles which underpin democratic societies. These democratic principles require either the total abolition of military courts in times of peace or strictly limiting their jurisdiction to infractions or crimes committed by military personnel while on duty.

The bill calls for the review of a number of legal and procedural provisions regulating the military judicial system in order to eliminate its exceptional nature, which contradicts international standards for justice. The bill allows for cases brought before military courts to be appealed within the military judicial system; it also upholds the right to appeal decisions issued by military judges before the Court of Cassation.

The bill further provides that the chief justice on military courts must be a civilian judge and increases the representation of civilian judges sitting on military courts, including appeals chambers in particular. Under this bill, civilian judges will make up the majority of judges sitting on military criminal courts. The bill further allows for civilian prosecutors to present cases before military courts. Importantly, the bill eliminates the ability for military courts to review cases involving “crimes committed against state security from abroad”, placing such cases under the sole jurisdiction of civilian courts.

While appreciating the positive step embodied in this bill, CIHRS hopes to see it followed through by further measures to improve the independence of the Moroccan judiciary and to prevent the executive authorities from interfering and influencing the judicial process.

Such measures would enhance the prestigious position enjoyed by the Kingdom of Morocco as a state in the Arab region seeking to strengthen the foundations of the rule of law. CIHRS hopes that the Moroccan parliament's discussion of this bill will include a review of the provisions of article 3, which includes broad language which would allow for the bill to be interpreted as granting military courts jurisdiction over civilians in cases of “a war against state institutions or the security of individuals or capital” or in cases involving “efforts to change the regime or to seize a part of the national territory by force.”

CIHRS asserts that absolutely no provision should allow for citizens to be referred to military trials under any circumstances – even in times of war – as civilian judges are completely capable of reviewing all crimes. Moreover, the bill does not adequately address the issue of overlapping jurisdictions of civilian and military courts. Rather than resolving the underlying problem of two courts having jurisdiction over the same case, the bill merely provides that in cases which have been reviewed by two courts, the more severe ruling should be applied. In the long term, this issue will almost certainly lead to discrepancies between rulings issued by the two systems. The bill's failure to resolve this issue contradicts the principles on conflict of jurisdiction between different judicial systems.

CIHRS hopes that Morocco will set a positive precedent to be emulated by other Arab states through the adoption of measures to put an end to the pattern of resorting to exceptional courts and to respect the right of citizens to a fair trial before the court of appropriate jurisdiction.

CIHRS points out that despite the Egyptian people having successfully overthrown the Mubarak regime and then the regime of the Muslim Brotherhood, the successive administrations in Egypt have repeatedly denied Egyptians' historic demand for an end to military trials of civilians. Indeed, since the fall of Mubarak, over 12,000 individuals have been referred to military courts. While in power, the Muslim Brotherhood even allowed for such trials to become protected within the 2012 constitution; the 2014 constitution, drafted after the fall of the Muslim Brotherhood's regime, also establishes constitutional legitimacy for military trials of civilians for a broad range of crimes.

CIHRS considers that the passage of the Moroccan bill will serve to bolster the Egyptian struggle to put an end to military trials of civilians. CIHRS calls on all presidential candidates in Egypt to prioritize in their campaign platforms a commitment to review the numerous constitutional provisions which are in violation of democratic and human rights standards – particularly article 204, which lends constitutionality to military trials of civilians.

Finally, CIHRS notes the constructive role played by the National Human Rights Institution in Morocco (an establishment of the Moroccan state) in drafting this bill to amend Moroccan legislation and in conducting a comprehensive dialogue on the bill with the relevant military and civilian bodies within the government – particularly with King Mohamed VI – to convince them of the importance of adopting such amendments. Many of the practices of Morocco's National Human Rights Institution serve as examples which should be taken into consideration to improve the work of similar national human rights institutions in other Arab states, particularly in Egypt.