Morocco: Directives from the King for a bill to change the existing Personal Status Code

المصدر: 
International Human Rights Law Group
The Moroccan King, Mohammed VI, has announced a landmark reform to the law over women's position in the family.
The BBC reports on proposed changes to the personal status code which would give women greater rights on matters covering marriage and divorce.
The full text of the Speech Delivered by H.M King Mohammed VI at the opening of the Parliament Fall Session.

Praise be to God,
Peace and blessings be upon the Prophet,
His Kith and Kin,

Ladies and Gentlemen, honourable Members of Parliament

I am opening this session of parliament as a last step in the process of renewing constitutional institutions, thus showing how determined I am to set the democratic process on the right track. This is an irreversible choice, whatever the challenges ahead, locally or at international level.

However proud we may be of this breakthrough, we still have to ask: have we reached the ultimate goal we set out to achieve?

As I have repeatedly pointed out, there can be no democracy where there are no democrats. Democracy is a long, arduous exercise, not some sort of battlefield on which to wage a war for positions. Democracy implies a keen sense of commitment to the notion of citizenship. It is an inescapable exercise of good governance of public affairs, especially at community council level.

Consolidation of democracy requires that the culture of responsible citizenship be fostered and enhanced, a task incumbent upon political parties and civil society. It also calls for improvement in the living conditions of citizens, making them feel they are better off in their daily life.

Whatever the membership of elected councils may be, I will always be asking this fundamental question: Is an election a goal in its own right? Is it the ultimate objective? Certainly not! To respect the will of the people means to reject the mentality of "seat-centred democracy", and wholeheartedly embrace development-based democracy.

We will have to draw the necessary lessons from the election of representative councils and do what is necessary for the rationalisation of the electoral process. Until then, I will simply talk today about the election of new local community councils, which are the bedrock of the Chamber of Councillors and which illustrate what democracy based on close proximity and participation is all about.

I urge local community councils to take the electoral competition for what it is, i.e. a passing event, and to launch major development projects, which are vital for social development, and to face the challenges, undeterred by the difficulties. The goal is to draw up local development plans and initiate implementation of priority projects, namely for adequate housing, high-yielding investment, productive employment, useful education and decent living conditions for all.

These are the true incentives for citizens, who should be effectively and continuously involved in the implementation of development projects which meet their actual needs. This is the proper way to rehabilitate local democracy, which calls for constant interaction with the citizens. It should not be a seasonal exercise for electoral purposes.

I wish to congratulate the newly elected members and say how delighted I am to see young and highly-qualified people elected in such great numbers. However, the number of women serving on local community councils is so low that I wonder: how much longer are we going to resort to legally-condoned positive discrimination to increase women's participation in elected bodies?

This issue certainly calls for far-reaching changes in old mentalities and public perceptions. We must open the way for women so that they may participate in all sectors of national life, especially as they have shown their competence, rectitude and dedication whenever they have served public interest.

I issued instructions to the public authorities to support local community councils. By the same token, I insisted that these authorities show vigilance and determination, and act as a watchdog to ensure that the elected councils discharge the wide-ranging prerogatives assigned to them, in the optimal way.

I must warn against irresponsible behaviour and poor management, even on the part of those who were elected by a large majority. I wish, in particular, to remind you of my instructions to treat as offenders those who encourage the spread of housing unfit for habitation, and to reprimand them without any leniency, in strict compliance with the law.

I believe the local community can only fully discharge its role by joining its efforts with those of the school and the family. Indeed, these three institutions are the focus of the reform I am determined to carry through with a view to building a modern, democratic society.

I have already insisted, at length, on the need to implement fully the provisions of the national education and training Charter. Today, I just want to make it clear that the current year is a crucial turning point in the implementation of this key reform. This objective cannot be achieved unless we have the courage and determination to take bold and effective steps which will have an impact on the daily life of the citizen.

As regards the issue of the family and the status of women, I raised this fundamental problem, shortly after acceding to the supreme position of Amir Al-Muminin (Commander of the Faithful), by asking the following question in my address of 20 August 1999: how can society achieve progress, while women, who represent half the nation, see their rights violated and suffer as a result of injustice, violence and marginalisation, notwithstanding the dignity and justice granted them by our glorious religion?

In addition to taking significant decisions and initiatives to ensure that women enjoy a better and more equitable status, I did not hesitate to take steps to prevent our society from being split over this issue.

To this end, I set up a multi-disciplinary advisory committee to propose an in-depth review of the Family Law. Since then, I have constantly provided this committee with instructions and guidelines until it presented me with its conclusions.

I should like to take this opportunity to commend the efforts exerted by the chairman and all the members of the committee. Views on certain issues may have differed at times, but in the case of Ulemas (religious scholars), I consider such differences rather as a blessing.

Through the instructions I issued and the opinion I expressed regarding the proposed Family Law, I wanted to see to it that the following fundamental reforms be introduced:

1- Adopt a modern form of wording instead of that which undermines the dignity of women as human beings.

Make husband and wife jointly responsible for the family, in keeping with the words of my ancestor the Prophet Sidna Mohammed, peace and blessings be upon Him, who said that men and women were equal before the law, and also with the saying: "Only an honourable man will honour them (women); and only an ignoble man will humble them".

2- Entitle the woman who has come of age to guardianship as a right, if she so chooses or if it serves her interest, in accordance with one of the interpretations of the Quranic verse which stipulates that a woman shall not be forced to marry against her free will: "...place not difficulties in the way of their (re-)marrying their husbands if it is agreed between them in kindness". A woman may, of her own free will, entrust guardianship to her father or to a relative.

3- Ensure equality between men and women by setting the minimum age for marriage at 18 years for both of them, in accordance with certain provisions of the Malikite rite. The judge may, however, lower the age for marriage in certain justifiable cases. Also ensure equality between boys and girls placed in custody, by allowing them to choose their custodian at the age of 15.

4- Regarding polygamy, I have seen to it that the true, tolerant aims of Islam are duly taken into account, mainly with respect to justice. In this regard, Almighty Allah allowed polygamy, but subject to compliance with strict conditions; He said: "...and if you fear that you cannot do justice (to so many) then one (only)".

Then the Almighty ruled out the possibility for man to do justice in this particular case: He said: "You will not be able to deal equally between (your) wives, however much you wish (to do so)". He thus made polygamy almost impossible, from the Islamic legal point of view.

Similarly, I have sought guidance from the pristine wisdom of Islam which makes it legally possible for a man to take a second wife, but only in circumstances beyond control. In addition, strict conditions must be observed and a judge's permission secured. Failure to allow for such exceptions by outlawing polygamy, may result in men being tempted to engage in unlawful polygamy.

Hence, polygamy shall be allowed solely in the following cases and under the legal conditions below:

- The judge shall not allow polygamy unless he ascertains that the husband will treat his second wife and her children on an equal footing with the first, that he will provide the same living conditions for all, and that there is a clear and objective justification for polygamy;

- The woman has the right to impose a condition in the marriage contract whereby her husband will refrain from taking a second wife. In this connection, Omar Ibn Al-Khattab, may God be pleased with him, is quoted as saying: "Contracts are tantamount to laws, for both parties". If no such condition has been stipulated, the judge shall summon the first wife to secure her consent. Similarly, the second wife must be informed that her husband-to-be is already married. Her consent must also be secured. The first wife shall have the right to ask for divorce because of harm suffered.

5- As a token of my special concern for my dear subjects residing abroad, and in order to reduce the hassle they face to get marriage contracts processed, I have decided that the procedure shall be simplified. The marriage contract shall simply be drawn up in the presence of two Muslim witnesses, in accordance with the procedures in force in the country of residence, and shall then be registered with the relevant Moroccan consular or judicial authorities. In this regard, the Prophet, peace and blessings be upon Him, is quoted as saying: "Seek ease, not hardship".

6- Make divorce, defined as the dissolution of marriage, a prerogative that can be exercised as much by the husband as by the wife, in accordance with legal conditions set for each party, and under judicial supervision. Thus, the husband's right to resort to repudiation shall be limited by specific restrictions and conditions designed to avoid misuse of this right. In this connection, the Prophet, peace and blessings be upon Him, is quoted as saying: "The most hateful to God, of all lawful things, is divorce".

For this purpose, mechanisms for reconciliation and mediation, through the family and the judge, shall be strengthened.

Divorce is the prerogative of the husband; the wife may also avail herself of this prerogative by using the right of option (tamleek).

Whatever the case, and before the divorce is authorised, it shall be ascertained that the divorced woman gets all the rights to which she is entitled.

A new procedure for divorce has been established, requiring the court's prior authorization. Divorce cannot be duly registered until all monies owed to the wife and children have been paid in full by the husband. Verbal repudiation, in exceptional cases, shall not be considered valid.

7- Expand the woman's right to file for divorce if the husband fails to observe any of the conditions in the marriage contract, or if he harms his wife through lack of financial support, abstinence, violence, or any other wrongful deed. This provision is in line with the general legal principle which advocates balance and moderation. Its aim is to promote equality and fairness between husband and wife.

A provision has also been introduced allowing divorce by mutual consent, under judicial supervision.

8- Seek to further protect children's rights by making the provisions of the relevant international agreements ratified by Morocco, part of the Family Law. Children's rights with respect to custody are also to be guaranteed by entrusting custody to the mother, then the father, then the grandmother on the mother's side.

Should this prove to be impossible, the judge will entrust custody to the relative in the child's family who is deemed most fit to assume that responsibility, keeping in mind the sole interest of the child.

Requirement to provide suitable accommodation for custody children shall be considered separately from other alimony obligations. Alimony cases shall be treated swiftly, within a maximum period of one month.

9- Protect the child's rights to acknowledgement of paternity in case the marriage has not been officially registered for reasons beyond control. The court shall examine the evidence put forth to prove parentage.

A 5-year period shall be allowed for, in order to settle unresolved cases, so as to spare children in this situation sufferings and deprivations.

10- In keeping with the principle of ijtihad, the granddaughter and the grandson on the daughter's side, just like the son's children, shall be granted the right to inherit from their grandfather, as part of the compulsory legacy.

11- Regarding the management, by husband and wife, of the property acquired during marriage, and while confirming the principle of separate estate for each one of them, the couple may agree, in a document other than the marriage contract, on how to manage and invest the assets acquired jointly during marriage.

In case of disagreement, they shall resort to the judge who shall base his assessment on general regulations of proof to determine the contribution of each of the spouses in fructifying the family's assets.

Ladies and Gentlemen, honourable Members of Parliament,

These reforms, the most important of which I have mentioned, should not be perceived as an indication of one side's victory over the other, but rather as gains for all Moroccans. I was keen to ensure that they were consistent with the following principles and references:

- In my capacity as Amir Al-Muminin (Commander of the Faithful), I cannot make licit what God has forbidden, nor forbid what He has made lawful;

- It is necessary to be mindful of the tolerant aims of Islam, which advocates human dignity, equality and harmonious relations, and also to rely on the cohesiveness of the Malikite rite and on ijtihad, thanks to which Islam is a suitable religion for all times and places. The aim is to draw up a modern Family Law which is consistent with the spirit of our glorious religion.

- The Family Law should not be considered as a legislation devised for women only, but rather as a code for the family: father, mother and children. The proposed legislation is meant to free women from the injustices they endure, in addition to protecting children's the rights and safeguarding men's dignity.

Would anyone of you want to see his wife and children thrown out of their home and into the street, or his daughter or sister treated brutally?

- As the King of all Moroccans, I do not make legislation for a given segment of the population or a specific party. Rather, I seek to reflect the general will of the Nation, which I consider to be my extended family.

As I am determined to preserve the rights of my faithful subjects of Jewish faith, I have seen to it that the new Family Law contains a provision which reaffirms that they shall continue to be governed by the Hebraic Moroccan Family Law.

Although the 1957 Family Law was drawn up before the Parliament was established, and was subsequently amended by Dahirs (Royal Decrees) in 1993, during a constitutional transition period, I have made a decision for the proposed Family Law to be submitted to Parliament, for the first time, in view of its implications with respect to civil law. As for the provisions of a religious nature, they fall within the competence of Amir Al-Muminin (Commander of the Faithful).

I expect you to rise to this historic occasion and be worthy of the responsibilities assigned to you, not only by respecting the sacred nature of the proposed texts, which were prepared with due account being taken of the aims of our tolerant religion, but also when you adopt new legislation.

These provisions should not be regarded as flawless, nor should they be perceived from a fanatic angle. Instead, you should address them with realism and clear-sightedness, keeping in mind that this is an ijtihad effort which is suitable for Morocco at this point in time, in its endeavours to achieve the development objective it is pursuing in a wise, gradual and determined manner.

As Amir Al-Muminin (Commander of the Faithful), I shall assess your work in the light of these two Quranic verses: "...and consult with them upon the conduct of affairs"; and also: "And when thou art resolved, then put thy trust in Allah".

To ensure optimal conditions for the enforcement of the new Family Law, I have addressed a message to the Justice minister, in which I have explained that no matter what reforms have been proposed, their implementation will hinge on the setting up of a just, modern and effective family judicial system.

This is all the more necessary since it became clear during the implementation of the Mudawana as it stands, that, in some respects, the inadequacies and shortcomings which have been noted are due not so much to certain provisions, but rather to the absence of a family judicial system, endowed with the necessary material and human resources as well as clear procedures. The aim is to ensure that justice is administered and rulings are enforced fairly and swiftly.

I also ordered that, in addition to the rapid establishment of a family mutual assistance fund, he should set up suitable facilities for the administration of family justice in all courts of the Kingdom and, given the powers the Family Law grants the judiciary, ensure that staff are trained, at all levels, and qualified to shoulder their future responsibilities.

Furthermore, I ordered that the Justice minister submit to me proposals for appointing a committee of experts to prepare a practical guidebook which covers relevant provisions and rules pertaining to the Family judicial system, so that it may serve as its single source of reference and as a unified code of procedure.

Efforts must also be made to reduce deadlines laid down in the current civil procedure act to expedite family matters.

Moreover, there should be a large-scale media campaign to sensitise all segments of the population to the importance of this reform. Islamic law experts, intellectuals and political representatives should be involved.

However important the matters submitted to you may be, the sacred cause of the Kingdom's territorial integrity must remain the overriding issue that warrants total mobilisation nationwide.

Therefore, I urge you to make good use of parliamentary diplomacy to defend this cause effectively, firmly and forcefully, in all forums and under all circumstances.

In this respect, I commend the enthusiastic participation of the representatives of the southern provinces in elected bodies. This clearly confirms their commitment to the nation's option for democratic management of its local affairs, within the framework of the Kingdom's national unity and territorial integrity, which are unanimously supported by my beloved people under my leadership.

I am determined to carry on with all substantive reforms, with the participation of all the forces that count in the nation, particularly our young people, in order to instil in them a sense of responsibility as citizens, and to involve them in the shaping of a democratic nation, firmly committed to solidarity and development.

In this respect, I should like to reaffirm my determination to ensure that this year is devoted to consolidating the main pillars of our nation, namely a stable family, a pioneering school system, and a community-based authority dedicated to serving the public and to strengthening the foundations and institutions of a strong democratic State.