Blog of the International Journal of Constitutional Law

The Law and the Social Reality of Other Constitutions

And you thought you knew nothing about the constitution of Morocco? By the time I am done with these posts, you will hardly remember that day. Below, another reflection on reading the constitution of Morocco and then traveling the country of Morocco:

The gap between constitutional reality and constitutional text can often be quite profound. By this, I mean the difference between certain fundamental, constitution-related symbols, signs and commitments around the country, representing the fundamental commitments of the country, and how they relate to the formal legal documents like the one from Morocco that I read thousands of miles in the air over the Atlantic Ocean. Although there is some debate (do super-statutes count? what about a political constitution?) about what counts as a legal constitution, there could also be such a thing as a “sociological” constitution. Walking around a place, you can see what sorts of symbols or norms or rules seem to be so fundamental as to achieve a constitution-like status. This might include some parts of the legal constitution (the First Amendment), some parts of the doctrinal constitution (“you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?”), and some fundmanetal social commitments that appear in neither place.

The one most notable distinction in Morocco between what we might call the sociological constitution and the legal constitution was the treatment of the King. The Constitution mentions the King, and grants the King power, but also constrains the power of the King. Article 1 talks about the “Monarchy” and Article 19 says that the King “shall be the Supreme Representative of the Nation and the Symbol of the unity thereof.” Article 24 gives the King power over civilian officials, stating that “[t]he King shall appoint the Prime Minister. Upon the Prime Minister’s recommendation, the King shall appoint the other Cabinet members as he may terminate their services. The King shall terminate the services of the Government either of its own initiative or because of their resignation.”

On the other hand, though, Article 1, the same text that first mentions the “Monarchy,” also says that “Morocco shall have a democratic, social and constitutional Monarchy.” Article 2 states that “[s]overeignty shall be that of the People who shall exercise it directly, by means of referendum, or indirectly, through the constitutional institutions.” As mentioned earlier, Article 3 discusses “[p]olitical parties, unions, district councils and trade chambers” and says “[t]here shall be no one-party system.” Article 7 talks about “the Kingdom” and discusses the motto of Morocco, which has the kingdom listed after God and country. Article 19 seems to give the King great power, but ultimately the King is entrusted with ensuring “respect for the Constitution. He shall be the Protector of the rights and liberties of the citizens, social groups and organizations.”

Yet everywhere I traveled in Morocco, the only pictures I saw were of kings, not of civilian officials. The many important Prime Ministers that have governed Morocco since its independence were never pictured anywhere we went as far as I could tell. Indeed, at one point in the Moroccoan city of Essaouria, a relatively cosmopolitan city on the Atlantic Ocean, I was part of a long conversation with a man who owned an art store there. He had traveled around Africa, had a son studying in France, and spoke wonderful English, as well as fluent French and Arabic. On his wall were pictures of kings, and when asked who the pictures were of, he laughed—-almost as if to suggest that it was obvious that the pictures on his wall were those of kings of Morocco rather than of anyone else.

Some level of reverence for the King, then, seemed to be part of the sociological constiuttion. The legal constitution gives the King power, but not the kind of power granted him by the merchant in Essaouria.



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