The reasoning invoked by the Constitutional Court in its review of Article 1 of the Organic Law on the Conditions and Procedures for Exercising the Right to Strike raises an important point, linked to its statement that there is nothing in the legislature’s “conduct” that violates the Constitution if the legislative body “recalls” in the organic law provisions that the Constitution has already stipulated, without these provisions necessarily falling within the scope defined by the Constitution for the organic law in question.
When the following two conditions are met, namely:
– A prior provision in the Constitution;
– And a “reference” in the organic law;
The relevant provisions, as reflected in the reference to the grounds for the right to strike within the framework of international conventions ratified by Morocco, are described as not being unconstitutional, even though they do not fall within the scope of organic law. This means, in principle, that constitutional justice adopts a teleological analysis (the search for purposes) of organic law, provided that it does not result in a contradiction with the explicit text of the Constitution; constitutional review does not, at least automatically, restricting the style of drafting, the argumentative structure, or the political objective pursued by the legislature, since the law is not merely a work of art but rather a response provided by the legislative and executive branches, under democratic legitimacy, to the priorities through which they have earned the trust of the electorate.
The reasoning on which the Constitutional Court based its decision is consistent with the definition of organic law adopted by both constitutional doctrine and practice, and is also consistent with the doctrine of Georges Burdeau, Guy Carcassonne, Olivier Duhamel, and others, in considering the mandatory review of organic laws within the jurisdiction of the Constitutional Court as an extension of its review of the validity of referendum procedures, culminating in a declaration of their legality.
In addition to the importance of reasoning by increments (Raisonnement par incréments), it appears that constitutional justice has come to the rescue of the coherence of Morocco’s institutional framework, as well as the fast-paced political timeline leading up to the elections, when it found, through reasoning derived from the word “reminder,” a solid justification that the Economic, Social, and Environmental Council had not encountered when, in an excessively “technical” stance, it decided to delete the “reminder” provisions.
Dr. Hisham Barjawi
Professor at Mohammed V University – Rabat
