Access To Justice
Hassan II, a time which has been described as “the years of lead”;5
proposed by King Mohamed VI and approved by popular referendum in July 2011. Knowledge of Moroccan history is needed to understand the con- text of the reforms.6
The Moroccan Personal Status Code affects, among other things, rights affecting marriage (in- cluding polygamy), divorce, child custody, and in- heritance. The reform, which has been “[h]ailed as one of the most progressive legal reforms in the Is- lamic world, … elevates the status of women, lim- its some rights men had over women, and grants women more affirmative rights in their affairs.”7
It
includes a restriction on polygamy under certain circumstances (including when a wife inserts a monogamy clause in her marriage contract) and an increase in the minimum age for women to marry to 18 (same as for men), up from the minimum age of 15, although judges retain discretion to reduce the age under certain circumstances, and more as documented in the literature.8
Although the com-
bination of political forces leading to the passage of the reform was beyond the scope of the panel, scholars have pointed out the involvement of the monarchy, political parties, parliament, human rights non-governmental organizations (NGOs), backlash arising from the terrorist attack in Casa- blanca in 2003, and the feminist movement, with different scholars weighting the effect of some of the principal factors differently.9
Obstacles preventing full enjoyment of the reform include lack of knowledge of such rights, as many women are not trained in or otherwise informed of them, particularly in rural areas; and patriarchal atti- tudes among men, including among some judges, which have led to illiberal interpretation and en- forcement of the law. The situation is exacerbated by high levels of illiteracy among women (especially in rural areas), compounded by a lack of infrastruc- ture (such as roads), making travel to and from rural areas difficult, including by “legal aid and non-profit
organizations”;10 and the 2011 constitutional reforms and once again, perpetuated by
male dominance. The status of implementation re- mains fluid as efforts continue by the government and NGOs to attempt to overcome long-standing problems.11
The 2011 constitutional reforms were overwhelm- ingly approved by voters (98.5% voter approval, 72% voter turnout) on July 1, 2011, a couple of weeks after they were proposed by King Mo- hamed VI on June 17, 2011, following input from stakeholders provided to the constitutional reform commission which was itself appointed by the King.12
Thus, the constitution “falls into the cat-
egory of constitutions granted to the nation by the king, rather than those crafted by a representative organization embodying popular sovereignty.”13 Such a rapid and extensive constitutional reform is certainly unimaginable in many other countries due to the relatively short time frame with so little time for discussion.
Principal Moroccan constitutional reforms bear- ing on access to justice include those establish- ing an independent judiciary (although the King retains certain power over the selection process for judges); declaring gender equality;14
prohibiting
corruption in government generally, including in- terference with judicial decision-making;15 a constitutional court;16
creating and elevating the Berber
(Amazigh) language as an official language of the country,17
but undoubtedly more such provisions
may be identified in the 180 articles comprising the reforms. Indeed, one article even specifies a general right to access to justice, noting “L’accès à la justice est garanti à toute personne pour la défense de ses droits et de ses intérêts protégés par la loi.”18
(Translated: Access to justice is guaran-
teed for each person for the defense of her rights and legally protected interests.) The constitutional reforms also address democratic and governance matters which were beyond the scope of the pan- el, including the King having yielded some power to others, such as the parliament and the prime
ILSA Quarterly » volume 20 » issue 2 » December 2011 23
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