Editor’s Note: 'The National Day of the Aggrieved Judge' was an event organized by the Judges' Club of Morocco as part of the club's endeavours, to reform and critique the judicial system in force in Morocco. The grievances that have prompted the judges to break their vow of silence are not directed at the political class, but rather toward judicial officials who put pressure on judges and interfere in the judicial process – without oversight or accountability. In this the club has proven itself loyal to the diagnosis that has been its hallmark since it was founded in the course of the Arab uprisings of 2011, namely, the belief that the biggest scourge in the judicial system in Morocco -as is the case in a number of Arab countries- is the hierarchical structure. This means that judicial officials usually become agents of a whole system designed to control and subjugate the judges.
Saturday, June 7, 2012, was no ordinary holiday for judges in Morocco. Although it happened to be a day off in the courts and in the Institut Supérieur de la Magistrature (Supreme Judicial Institute), dozens of judges across Morocco gathered in the large meeting hall at the institute to take part in a national day of 'Redress for Judges who have been Treated Unfairly' – a nationally unprecedented event organized by the Judges' Club.
Dozens of judges came from far and wide to bring judges' grievances out of the closet, although one session or even several would not have been enough to listen to them all. The ultimate aim was to mend the damage done to the morale and the psychological well-being of some judges due to deficiencies in the judicial system, in which laws that are in violation of the new Constitution of 2011 continue to be applied.
The first session was devoted to the subject of appraisals of judges, in relation to the case of first instance court judges in the eastern city of Nador. They were surprised to learn that their promotions were delayed because of subjective appraisals by the local judicial official. This official's primary motivation was his displeasure that judges had protested at the violation of decisions taken by a general assembly of judges and that, in line with a decision by the Judges' Club of Morocco, they had submitted a request for access to their appraisal forms. Through the real experiences of several judges, the Nador case triggered a debate about the serious deficiencies in the system for appraising judges. The judges’ accounts were shocking, and the entire audience joined in the subsequent discussion.
The Official Who Waves the Appraisal Form and Says “He who warns is excused'
The Saturday meeting began with a speech by the president of the Judges' Club of Morocco, Yassine Mkhelli, who said that the subject was raised for the first time at the first round of the national council of the Judges' Club of Morocco. The national council conference had called for a transparent and objective system for appraising the work of judges and for a review of the current system for appraising judges. The existing system is, at times, abused as a way to infringe on their independence and to restrict their rights. Mkhelli explained that the judges in the “stricken” court in Nador, who had made exceptional efforts to clear a backlog of cases (some of them were dealing with 3,000 cases a month), had been “rewarded” by being deprived of promotion because they had objected to a violation of decisions taken by their general assembly, and they had submitted requests for access to their appraisal forms in line with the resolutions of the organizations representing the judges. Mkhelli added that the solidarity day that the Judges' Club was organizing was not only an opportunity to express solidarity with the Nador judges, or with other judges in any court of first instance or appeals court, but also a day to demand that the appraisal system be abolished and replaced by a clear and transparent system for assessing judges. This system would be compatible with the requirement of judicial independence and it would ensure all judges are treated fairly.
Mkhelli said that all the judges in the country are potential victims under an appraisal system that was neither transparent nor objective, and that puts the process under the complete control of judicial officials. Using 'tidiness' as a criterion in the appraisal process, he pointed out, had no basis in the text of the law. Neither did the appraisal form in which officials in the appeals courts state their opinions on judges in the courts of first instance. The president of the Judges' Club attributed the complaints that the club had collected and that would be submitted to the gathering on this solidarity day to deficiencies in the judicial administration, and said these would remain one of the main reasons for the problems that the judicial system faces. He called for a transparent, impartial, and objective system that respects the requirement of judicial independence through a second stage of assessment by an elected board at the level of court general assemblies.
At the event, several judges raised the question of secrecy of appraisal forms and its effect on the careers of judges. Judge Mustapha Belfakih, a member of the executive bureau of the club, gave the following testimony: “I've been a victim of the appraisal system since 1996, since I started working in the judiciary. The reason for that was heated discussions, questions about what was happening in certain cases, secret aspects of discussions that cannot be revealed to others, not even to a judicial official, and why a case was ruled in a particular way. The principle was advanced that these deliberations must remain secret. The outcome was a remark that the judicial official noted in secret on the appraisal form. The note read: 'This judge finds it hard to accept observations from his superiors.'”
“All that,” added Belfakih, “can set back promotions for months.”
A Judicial Official: “I was expecting the ministry to appoint a male judge, not a female.”
Judge Fatma el-Zahra Chalabi el-Filali, one of the women leaders who helped found the club, threw light on the hardships women judges suffer from at a time when they were neither welcomed nor appreciated by some conservative voices in judicial circles: “At my first meeting with the judicial official I was surprised to hear him say that he had been expecting a male judge, not a woman. The judicial official kept me waiting in the corridor for two hours while one official gave another official a date for me to take the oath of office as a judge”, she recounted. “I went into the judiciary to protect my dignity as a woman, but I discovered that there are pockets of resistance that are against women judges and are trying to undermine this experiment by deliberately creating obstacles.”
El-Filali spoke about the annoying practices she had to deal with. “Although by law I am entitled to get pregnant, to give birth, to take advantage of leave for maternity and attend to health problems, the official had a different opinion. He insisted on attaching negative remarks to the medical certificates I submitted when I was absent from work for compelling health reasons, and as result, my promotion was held up for two years. I was pregnant and living in the city of Fez and the judicial official asked me to go to court to stand in for other judges, although there were enough judges in the court. I was forced to travel to the city of Sefrou four times a day, which made me suffer from instances of miscarriage. I couldn't give birth naturally until a new judge arrived. Although my promotion was held up for two years, I sense that a new era has begun. Thanks to the new spirit that has crept into the judiciary since the founding of the club, which has swept aside the secrecy surrounding several subjects that were taboo for a long time.”
An Assessment System That Doesn't Enshrine Domination by Judicial Officials
Hadjiba el-Bukhary, president of the club’s regional office in Meknes, and winner of the first Female Judge prize, said that judges’ presentations reflected a very small part of what judges have to put up with in the courts. Judges who are victims of the appraisal system are still paying the price without being referred to the disciplinary council, and without the right to a fair trial where they could defend themselves and find out the acts attributed to them. “A list of judges who have been mistreated must be drawn up so that something is done to treat them properly, and to appeal to the Supreme Judicial Council to put an end to their ordeal”, el-Bukhary said. “The Supreme Judicial Council must also take a clear position on this question as it affects the psychological and professional stability of a number of judges. It makes no sense that the secretariat of the council has not issued a response although the council raised the issue more than a year ago.”
Abdel Rahman El-Lamtouni, or “The Central Judge”, as he is referred to in comments and writings on the Facebook page of the Judges' Club of Morocco said: “The presentations were painful and moving, but there is hope for the future. A few years ago, talking about such things would have been an act of stupidity. In my first six months as a judge, I was active in the Amicale (the pro-government Amicale Hassania des Magistrats) and I discovered that the state puts its trust in the person of the judge and puts the latter’s fate in the hands of the judicial official. On several occasions, I was harassed and threatened with the use of the appraisal process as a weapon. It was, and still is, a tool that is often exploited to undermine judicial independence or to try to influence the judicial ruling that is issued”.
Judge Mohamed El-Hini: “I haven't been a victim of the appraisal system but I am a potential one. The judicial administration of the courts should be declared independent of the Ministry of Justice, a national day should be held to demand that judges have access to their appraisal forms, and a code of ethics for judicial officials should be drawn up.”
Abdullah Benkiran, a member of the national council of the club, talked about attempts by judges to prevent encroachments on their independence. He said: “The judges sent a letter directly to the Supreme Judicial Council, documenting attempts by judicial officials to infringe on their independence. However, the inquiry did not focus on the substance of the letter, but rather on who had the idea of meeting and sending the letter to the council. The judicial official was not questioned. It is worth noting that the letter was signed by all six judges of the court. As a result of false allegations by unknown persons, they received poor appraisals for two years, and those are still in the files, even though an inquiry proved these allegations to be false.”
Mohamed El-Mansouri, a member of the club from Tétouan, told a similar story: “We conveyed the letter to the president of the Court of Cassation and told him they taught us in the Institut supérieur de la magistrature that interfering in the judiciary is banned. A limited inquiry was opened but it did not lead to anything. For two years we remained under the sword of an 'average' appraisal, which had a negative effect on our promotions. The judicial official was both judge and jury. We suffered in silence, sharing our grievances amongst each other.”
Anas Ahrar, a member of the executive bureau of the club and one of the judges who previously worked in the Court of First Instance in Nador ('the stricken’ Court), said: “The appraisals that took place in Nador were neither transparent nor objective in the case of several judges, who had asked for the general assembly of the court to be respected and who objected when the judicial official violated the general assembly. The result was an abusive appraisal process. All of this raises questions about the criteria for selecting judicial officials and why they are not accountable. Unfortunately the Ministry of Justice and Freedoms still sees the opinions of the judicial officials as the infallible word of God. Although the judges have sent several letters asking for an inquiry into the motives for the bad appraisals given to some of the judges in the Nador court, the ministry has not even taken the trouble to answer the letters. The ministry answers complaints from the public, but takes no notice of complaints from judges.”
This article is an edited translation from Arabic.