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Cablegate: Phone Call Justice: Meddling in Morocco's Judiciary

VZCZCXYZ0007
PP RUEHWEB

DE RUEHRB #0719/01 2361811
ZNY CCCCC ZZH
P 241811Z AUG 09
FM AMEMBASSY RABAT
TO RUEHC/SECSTATE WASHDC PRIORITY 0593
INFO RUCNMGH/MAGHREB COLLECTIVE

C O N F I D E N T I A L RABAT 000719

SIPDIS

STATE FOR L/LEI, DRL/NESCA, NEA/PI AND NEA/MAG

E.O. 12958: DECL: 08/24/2019
TAGS: PHUM CJAN EAID PGOV KJUS KCRM MO
SUBJECT: PHONE CALL JUSTICE: MEDDLING IN MOROCCO'S JUDICIARY

REF: A. RABAT 0607
B. RABAT 0443

Classified By: CDA Robert P. Jackson for reasons 1.4 (b) and (d).

1. (C) Summary: The Moroccan judicial system suffers from both a lack of independence and a lack of public confidence, and it remains an impediment to the country's development and reform efforts. Recognizing these problems, King Mohammed VI has called for a comprehensive reform of the judicial system to include greater independence and efficiency, but it is as yet unclear how committed the Government is to making meaningful reforms. Judges are not even minimally independent of the Ministry of Justice, and officials use direct intervention, career consequences, and political pressure to influence outcomes. This is further exacerbated by many judges' inability to apply the law correctly, even without outside meddling. Judicial incompetence and lack of independence are stumbling blocks that the GOM and the King must overcome to achieve their stated social and political reform goals. The Mission will continue to assist as the Government demonstrates its willingness to act. End Summary.

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The King Announces a Plan
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2. (SBU) On August 21, the King, looking healthier and thinner than he has in years, unveiled the framework of his much-anticipated judicial reform plan, which focused on six priorities:

-- a more independent judiciary;
-- modernizing the legal system to include a new penal policy, the establishment of a national crime observatory, and the promotion of alternative sentencing mechanisms;
-- upgrading administrative mechanisms in the court system and delegating authority to judicial officers;
-- upgrading training and performance of judges and judicial
staff;
-- increasing efficiency, and
-- preventing corruption.

He appointed the Ministry of Justice to develop and implement
these priorities, explaining that judicial reform would support the other major modernization and development projects initiated by the Palace. The plan comes at a time of general public disaffection with the judiciary and amid calls for greater judicial independence from Moroccan non-governmental organizations (NGOs).

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Phone Call Justice and Political Meddling
-----------------------------------------

3. (C) When PolOff asked prominent judicial reform activist Abdelaziz Nouyidi to comment on the degree of judicial independence in Morocco, he laughed. "When it deals with anything political, there is zero independence. When it has to do with the press, there is zero independence. With all other cases, there is more room for independence, but not very much," he told PolOff. Nouyidi described an encounter with a judge who received a phone call from the Ministry of
the Interior during their conversation. The judge, responding to the caller's questions, stated, "The verdict was what you wanted." Nouyidi said the judge immediately became embarrassed by having this conversation in front of an activist for judicial reform, but had been so accustomed to reporting on his cases to ministry officials that he had forgotten to be discreet.

4. (C) XXXXXXXXXXXXX said the lack of independence allows the court system to be manipulated into an instrument of political repression. "Other countries use the army or the police to control politics," he mused, "but in Morocco, we use the justice system."

5. (C) In one recent case, Said Yabou, an attorney and member of the Istiqlal Party (PI), was elected Council President of Youssoufia (a township outside of Rabat), in an alliance with the Islamist-inspired Party of Justice and Development (PJD). The hotly contested council election required the intervention of security forces to prevent serious clashes between the PI-PJD coalition and the rival coalition made up of the Popular Movement Party (MP) and the Party of Authenticity and Modernity (PAM). Immediately after winning the council presidency, and in violation of the code for lawyers and proper procedure, Yabou was arrested on charges of fraud. He was speedily convicted, sentenced to two years in prison and lost his council seat. Several contacts speculated that this was an entirely political move, and illustrated the way in which the judiciary may be used to achieve political ends.

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No Legal Independence
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6. (C) Despite language in the Moroccan constitution asserting the judiciary's independence from the legislative and executive branches, this is not implemented. According to Francois Ramsey, the Director of the American Bar Association (ABA) in Morocco, there is no judicial independence. The Ministry of Justice (MOJ) is one of five Ministries under the direct control of the King, and it hires and fires judges, controls promotions, and decides who can be appointed, and where. Judges can become civil servants in the MOJ, and can also serve concurrently as prosecutors. It is not unusual for a judge to serve in his capacity as a magistrate one day, and the next day to serve as a lawyer and defend the interests of the state. Legal reform advocates argue that this situation creates conflicts of interest and limits the degree to which judges can make impartial and independent decisions.

7. (C) The High Judiciary Council, which is headed by the King, oversees the disciplining of judges. The Minister of Justice also serves as a full-time member of the Council. Asked whether any judges had been prosecuted for corruption or other offenses, Rachid Filali Meknassi, Director of Transparency Maroc, noted that the High Judiciary Council had sanctioned 70 judges at its last meeting. However, he added that "because of the lack of independence, we can't tell if these 'professional faults' were for not following orders from above, or were for actual misdeeds."

8. (C)XXXXXXXXXXXXX, described the High Judiciary Council as willing to hold judges accountable for corruption-related offenses, provided there is sufficient evidence. He argued, however, that the Ministry of Justice was unlikely to use Judiciary Council sanctions to punish judges for failing to deliver the desired verdict. "If the Ministry wants to punish a judge for being too independent," he explained, "they don't bother with the Council. They just appoint him to an unwanted post in the desert somewhere and don't let him get promoted."

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Influence
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9. (C) The MOJ's ability to promote or reassign judges makes it difficult for justices to contradict ministry instructions, even if the judge's independent verdict would be in line with the law. Nouyidi, the judicial reform activist, opined, "When judges have not received explicit instructions on a case, they usually act in line with their expectation of ministry preferences," because of their interest in avoiding the disfavor of ministry authorities, which would risk damaging their careers. According to Nouyidi, instructions to judges can come from both inside and outside the Ministry of Justice. Power to influence judicial decisions also resides in the hands of Palace insiders or friends, including the Head of the Supreme Court.

10. (C) XXXXXXXXXXXXX. Ironically, he declined to provide the names of any independent judges, noting that is the duty of the MOJ. "Any meeting would have to be set through them," he explained, "they control who can talk." He also added that any judge would "be afraid" to take action without first consulting the Ministry.

11. (C) XXXXXXXXXXXXX blamed the political system, rather than
the individual judges, for the lack of principled decisions by magistrates. There are plenty of brave judges who are constrained by politics, he asserted, observing, "When it comes to politics, there is very little room for independence." Citing the irregularities that took place in
the June communal elections, including the use of extra-political pressure tactics to influence mayoral elections, XXXXXXXXXXXXX wondered how 3,000 judges could change the system when even independent political parties succumb to pressure from the State (Ref A).

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Corruption and Incompetence
---------------------------

12. (C) Filali Meknassi of Transparency Maroc underlined a growing culture of corruption that has made judges amenable to receiving directions from above without complaint. Top level judges can earn as much as USD 4000/month, but even the highest salary is not commensurate with the lavish lifestyle enjoyed by many magistrates, he said.

13. (C) Particularly in cases that could have important implications, judges are so accustomed to receiving directions on how to rule that they find it difficult to assert their independence, Filali Menknassi explained. In addition, the lack of transparency in judicial decisions makes it impossible to determine how many decisions are made under direct government influence. A middleman with an agenda could sway judges' decisions by claiming to represent officials in the Ministry, he observed, and even without specific instructions, the judges may act on their own personal biases rather than the law.

14. (C) According to XXXXXXXXXXXXX, the incompetence of judges
serves as another major hindrance to independence. "A surprising number of judges do not know the law well enough to apply it correctly and therefore have no idea how to make an appropriate decision," he said. Judges therefore often rely on guidance or instructions from the Ministry as a crutch to compensate for their inability to apply the relevant legal principles. In addition to a lack of knowledge about the law, judges receive very little ethics training, compounding the problem, XXXXXXXXXXXXX added.

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Everyone Agrees It's Time for Reform
------------------------------------

15. (SBU) The lack of independence, efficiency, and impartiality in the judiciary remain areas of concern for the Moroccan public, according to a series of focus group discussions on the judicial system conducted by the People's Mirror, the first public opinion research center in the Arab World. Focus group participants expressed their belief that case outcomes "have been decided by the Minister of Justice in consultation with other actors in the government -- not by the judges," a sentiment echoed by many embassy contacts. Participants emphasized that strengthening and improving the role of the judiciary, particularly judicial independence, are necessary but as yet missing steps in Morocco's overall development.

16. (SBU) In April, a group of Moroccan NGOs submitted recommendations on justice sector reform to the Ministry of Justice. Without an independent judiciary, they argued, the success of other reforms, including the advancement of women's rights and implementation of the new family code, will be limited. They called for constitutional and legislative reform to remove the judiciary from executive control, and for greater transparency in legal decisions. It is too soon to determine whether and how these recommendations will be incorporated into the new legal reform plan.

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Comment
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17. (C) The judicial system's lack of independence and the corresponding lack of public confidence are impediments to the country's development and reform efforts. Fortunately, the highest levels of the GOM appear to be aware of the need for reform and have shared some of the major principles of their reform plan (Ref B). The King first described his judicial reform plans on July 30, 2008; after more than a year, details have emerged. The GOM has also expressed a desire for U.S. support in strengthening judicial competence and independence. The Mission will continue to work with the Ministry of Justice as it defines its plans, in order to find areas of possible cooperation. Professional training of judges in both law and ethics would be one potential area for assistance. However, assistance will only be "window dressing" without meaningful steps by the GOM to eliminate the opportunity for meddling by government officials. The continued use of the judiciary for political purposes undermines the GOM's otherwise laudable efforts to promote judicial reform and transparency. Ultimately, to reach the societal and political results that the King and GOM leaders have identified as goals, they will have to give up this retrograde lever for political control. In meeting with the
Moroccan authorities, the Mission will continue to press for greater judicial independence. End Comment.

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Visit Embassy Rabat's Classified Website;
http://www.intelink.sgov.gov/wiki/Portal:Moro cco
*****************************************
Jackson

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