ID:222045
    Date:2009-08-24 18:11:00
    Origin:09RABAT719
    Source:Embassy Rabat
    Classification:CONFIDENTIAL
    Dunno:09RABAT443 09RABAT607
    Destination: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. 
 
------------------------- 
The King Announces a Plan 
------------------------- 
 
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). 
 
----------------------------------------- 
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. 
 
--------------------- 
No Legal Independence 
--------------------- 
 
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." 
 
--------- 
Influence 
--------- 
 
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). 
 
--------------------------- 
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. 
 
------------------------------------ 
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. 
 
------- 
Comment 
------- 
 
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. 
 
 
 
 
***************************************** 
Visit Embassy Rabat's Classified Website; 
http://www.intelink.sgov.gov/wiki/Portal:Moro cco 
***************************************** 
 
Jackson