Symposium following the “stumbling blocks of the Family Law” and the convergence of the reform between the constitution and international pacts

As a contribution to the enrichment of the public debate on the reform of the Family Law since the Royal Speech on Throne Day 2022, the National Library in Rabat hosted, today, Friday, December 2, a national symposium on the topic “Family Law between the Constitution and international treaties”; The university included human rights activists, legal researchers and practitioners of judicial professions, as well as former minister Muhammad Saeed Al-Saadi.

The interventions of the participants, which followed successively, unanimously emphasized the importance of “analyzing the requirements of the Family Law in light of the rapid development of events affecting constitutional aspects, international treaties and economic, social and value variables”, calling for “deepening the gains for their consolidation and correcting imbalances to make it fair for all components of the family.”

The conclusions and recommendations of the symposium clearly call for “research of procedural mechanisms and procedures and work on their improvement, with the aim of ensuring the implementation of judgments and respect for rights and duties”, while renewing the request for “the creation of special courts for family justice that are financially and administratively independently, and institutionalizing a body specialized in conciliation and mediation procedures in disputes between spouses.

Khadija Al-Yamlahi, the general secretary of the organizing association, confirmed in her speech that the main goal of holding the symposium is to try to crystallize the discussion of proposals and recommendations on some of the fundamental problems revealed by the application of Moudawana since 2004, referring to its issuance as “historic and a political event and a qualitative gain of human rights during 2004. The improvement of the rights of the family, women and children is evident in the provisions of three fundamental principles: equality in the dignity of family members, joint responsibility of both spouses and the best interest of the child.

Flaws and shortcomings

The first interventions were made by Muhammad Saeed Al-Saadi, the former minister for women and the family sector, who initially appreciated the royal initiative calling for the reform of the family law. Which, according to him, in itself re-opened the reform workshops and revived the discussion, pointing out that “the effort invested must be recognized as a matter of the realization of rights”.

Al-Saadi added, in his intervention titled “Any Reform for the Family Law?”, that the version currently being discussed on ways to amend it came after hard work, describing it as “a qualitative social leap from the beginning of the current century, despite the flaws and shortcomings of its takeover.” Procedural and procedural in the proper application of its requirements.

The former Minister of the Party of Progress and Socialism presented indications of shortcomings in application and negativity that legal practice has led to in the field of family after 18 years, citing “high divorce rates, as well as polygamy, despite its limited prevalence during this period”, dedicating a memorial to “divorce because of discord, which 44 percent of husbands resort to in order to get rid of their wives”.

And he added, “There is also the problem of legal representation of children, which is still in the hands of the husband”, calling for “putting the family under joint responsibility, and therefore all forms of management of the family sphere must be subordinated to equality; Including the rights of children and women. The same spokesman also warned against what he called “an attempt to block and obstruct the work of the advisory committee that was formed.”

Al-Saadi concluded that it is necessary “now to take advantage of the historical opportunity and the opportunity, which is to talk about the essence of the Code and its content that must rise to the level of full equality”, evoking “the export of the Moroccan constitution and the supremacy of international conventions.” Before concluding that “traditional jurisprudence oppresses women in many aspects, while what is needed is respect for Sharia objectives with renewed jurisprudence of the era focused on by royal discourse.”

“Blog” through constitutional eyes

For her part, Amina Al-Masoudi, a university professor specializing in constitutional law, confirmed that the debate on legal and human rights that followed the end of the nineties and the beginning of the millennium in connection with the amendments to the Law on Personal Status was healthy and knew of positive amendments that followed rapid social changes,” emphasizing that “women’s struggles are not born today.” .

In a lengthy intervention, Al-Masoudi enumerated what she considered “legal loopholes that have quietly emerged during the activation of the Code’s content and materials,” before drawing attention to an important constitutional development that many people are unaware of, the principle of defense unconstitutionality of laws and decisions, including those issued by competent authorities. in family jurisdiction.”

She noted that “the wife has the right, if she believes that a judgment concerning her is not fair according to her right, to request the defense of its illegality before the competent judicial authorities”, calling for the introduction of a future family law. of the Constitutional Court to decide on it before the continuation of the takeover, which makes it possible to bypass defects and eliminate defects.

The professor of constitutional law concluded her intervention under the title “Amendments to the Family Law in accordance with the requirements of the 2011 Moroccan constitution”, saying that the constitution establishes 3 levels that must be taken into account during the upcoming reform; These are: “the establishment of the foundations of a solidary society and the commitment of Morocco to prohibit all forms of discrimination based on sex or sexuality … then the supremacy of international conventions over national legislation as soon as they are promulgated.”

It is significant that in the introductory presentation for the discussion it was emphasized that social phenomena require “compliance of the family law with the provisions of the constitution and international charters and agreements, especially the Convention on the Elimination of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child, as well as the implementation of “enlightened diligence” based on on the principles of justice, equality and honesty, to remove injustice and discrimination that are still contained in some provisions of the Code at the level of rights and duties, and the effects of which have a negative impact on women, families and children.