Morocco’s social contract and civil liberties

The Arab Spring and its aftermath have inspired much discussion of the social contracts that had defined the relationship between citizens and the state in the Arab world. In the past, the typical social contract of a state in the Middle East or North Africa broadly afforded that citizens would be provided jobs and public services, and presumably political stability, in return for limiting civil liberties that could be used to challenge governing regimes. The political transition in Morocco has provided space for addressing civil liberties in the debate on new social contracts. Moroccans, like many in the MENA region, have long resented that attempts to fully exercise civil liberties could result in heavy-handed responses by security services and courts. Activists, journalists, and even rappers have been singled out for violations of rights by government authorities. But many other citizens were systematically denied civil liberties as the result of weak safeguards within the justice sector.

Discussions on the inclusion of civil liberties in new social contracts has centered mostly on citizen engagement, largely looking at access to information, transparency, and public consultations. There has been less discussion on other key aspects of civil liberties, namely protection from ill-treatment by government authorities and the right to a fair trial. Prior to the Arab Spring such liberties were often violated through the use of arbitrary arrest and detention; torture and other forms of ill-treatment of detainees; lengthy pre-trial detention; and restricted access to legal assistance. Political interference in the courts by the executive branch was not uncommon. And civilians could be sent for trial before military courts, which lacked the most basic fair trial safeguards.

Later, Morocco’s Charter for the Reform of the Judicial System, adopted in 2013, highlighted a number of gaps in the exercise of civil liberties, particularly in relation to fair trials and treatment of detainees. Its National Human Rights Council has noted the persistence of abuses by prison staff against inmates and poor treatment of juveniles in detention in the past. Morocco scored poorly on the Economist Intelligence Unit’s Democracy Index (2014) measure of civil liberties. Its lowest score on the 2013 World Governance Indicators (WGI) is for Voice and Accountability, which covers civil liberties. However, on a host of other WGI indicators, including the rule of law and government effectiveness, it scores well above the average for lower-middle-income countries, suggesting the government can be effective when it wants to be.

The government of Morocco has taken steps to enhance civil liberties. The constitution adopted in 2011 outlawed the practices of arbitrary arrest and detention, torture and ill-treatment. It also enhanced fair trial safeguards and set the basis for criminalization of torture and arbitrary arrest and detention. The mandate of the National Human Rights Council was expanded to allow more proactive monitoring, investigation, and intervention involving cases of violation of civil liberties. The Charter for the Reform of the Judicial System set policy objectives for improving fair trial safeguards and the treatment of detainees, and in limiting the use of pre-trial detention. Trial of civilians by military courts was outlawed in January, 2015.

These reforms are relatively recent, and the extent of implementation remains unclear. Yet violations in Morocco have been highlighted in the last several years by the U.S. State Department’s Morocco Human Rights Report 2014, the U.N. Working Group on Arbitrary Detention, the U.N. Special Rapporteur on Torture, Human Rights Watch, and Amnesty International. For example, the U.S. State Department has pointed to the continued practice of arbitrary arrest and detention, and the excessive use of pre-trial detention, often for periods longer than allowed by law, taking place throughout 2014.

Ensuring the social contract covers the full range of civil liberties is important for several reasons. Civil liberties should be respected as a matter of legal principle. These rights are well-established under international law, and guaranteed in Morocco’s constitution and international human rights treaties that it has signed. Exercise of civil liberties by citizens, and their protection by governments, is integral to promoting good governance. Violation of civil liberties with impunity by government authorities is a powerful deterrent to citizens’ fully exercising their rights.

Exercise of civil liberties is also linked with citizen well-being and agency. Ill-treatment by police, prison, and security officials undermines well-being, including physical and mental health. Families of the detained are affected. Unnecessary detention also undermines agency—those in detention are severely restricted in the exercise of choices in, and control over, their lives. This may last beyond the period of detention, for example in terms of access to employment and education.

Violation of civil liberties imposes economic costs. Wrongful detention separates individuals from employment and reduces financial assets at the family level. This presents a particularly precarious situation in Morocco, where most detainees are men and the labor force participation of women, especially married women, remains low. And much of these costs are likely avoidable. For example, Morocco’s rate of pre-trial detention (per 100,000 of population) is comparable with countries such as Mexico, Brazil, Colombia, Bolivia, and El Salvador, all of which have considerably higher rates of homicides and other violent crimes. This raises the question whether Morocco needs such high levels of pre-trial detention.

Finally, the poor are likely to suffer disproportionately from violations of civil liberties. The poor are more likely to be involved in crimes and come into contact with the police, prisons and courts. They are more frequently held in pre-trial detention because they cannot afford legal assistance from a lawyer, cannot afford to pay bribes or post bail, and lack the personal connections to navigate the court system. And they cannot rely on functioning legal aid systems to ensure access to lawyers. The economic costs incurred may push the vulnerable into poverty, or exacerbate the conditions of those already in it.