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Cable sobre el funcionamiento de la Justicia en Marruecos

El 'número dos' de la Embajada de EE UU, Robert Jackon, señala que la justicia marroquí no es independiente y no goza de la confianza de la opinión pública. Supone incluso un estorbo para el desarrollo del país.

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.




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Jackson