Venice Commission - Observatory on emergency situations
www.venice.coe.int
Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).
Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN
1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?
The Constitution of 29 July 2011 enshrines as exceptional situations the declaration of war, a state of emergency, a state of siege, and provides for the creation of a High Security Council whose mission is notably to resolve crisis situations.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
The regime of the state of emergency is not provided for in the Constitution and therefore remains justiciable by an infra-constitutional norm, in this case a law. It does not affect the functioning of the institutions (Government/Parliament relations), can be decreed within all or a part of the territory, increases the administrative police powers of the authorities and restricts public freedoms (freedom of movement, of assembly, of demonstration, etc.).
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
The only legal norm that exists is the law on the state of health emergency (see Q2).
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
Yes, by the Head of Government by decree of 24 March 2020 on the basis of the decree law of 23 March (law N°23.20 ratifying the decree law N°2.20. 292 of 28 rejeb 1441, of 23 March 2020, enacting special provisions for the state of health emergency and the measures of its declaration (BO n°6887) - the first time for one month, then extended four times (from 24 March until 20 April, then until 20 May, then until 10 June, then until 10 July, then until 10 August), except that in the last two extensions, the easing of restrictive measures is at the discretion of the representatives of the local administration.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
It is a law that regulates the state of health emergency, initially adopted by decree-law on 23 March 2020 and then submitted for ratification to Parliament (Law No. 23.20 ratifying Decree-Law No. 2.20.292 of 28 rejeb 1441 (23 March 2020) enacting special provisions for the state of health emergency and the measures of its declaration). On the other hand, the application of the state of health emergency (24 March 2020) was made by the Government, by decree of 24 March 2020 on the basis of the law of 23 March 2020.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
Theoretically, all acts of the Head of Government are subject to review before the administrative courts, but in practice this has not been the case.
7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?
Article 59 of the Constitution on the state of emergency provides that even in this regime, "the fundamental rights and freedoms provided for in this Constitution remain guaranteed". The legal status of fundamental rights and freedoms is enshrined in the Constitution and defined by law. In the event of derogations in a state of emergency, the legislator and the judge must intervene in a proportionate and necessary manner and under the control of the judge.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
As soon as the first cases of contamination were declared on 2 March 2020, various measures were taken, including compulsory containment, a ban on gatherings and the closure of businesses.
9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?
The decree law of March 2020 allows the government, in case of need, to take, on an exceptional basis, any economic or financial or social or environmental measure that would contribute directly to limiting the negative effects of the state of emergency. It also punishes any person who disobeys the orders and decisions of the authorities with one to three months in prison and a fine of between 300 and 1300 dirhams, or one of the two penalties.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
The government has the powers under the decree law of March 2020 (ratified by Law No. 23.20) for the duration of the state of health emergency. The government can take "the necessary measures required" by the state of health emergency.
11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?
Parliament continued to meet but with representation limited to 3 elected members per parliamentary group (21 elected) on the basis of an inter-party agreement.
12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?
The Constitutional Court has continued to function normally, while the other courts have suspended hearings except for the most urgent criminal cases which were examined through the remote trial process.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
A series of texts have been published, headed by the decree-law of 23 March 2020 enacting special provisions for a state of health emergency and the measures of its implementation, the decree of 24 March 2020 declaring a state of public health emergency throughout the country to deal with the spread of the Covid-19 coronavirus, followed by those of 18 April 2020, 19 May 2020, 9 June 2020 and 9 July 2020, which extended it to 20 May 2020, 10 June 2020, 10 July 2020 and 10 August 2020 respectively.
14. Was this additional legislation subject to judicial review?
No, although such control is legally possible.
15. Was the state of emergency prolonged? For how long? Was the prolongation subject and submitted to parliamentary control? Was it subject and submitted to judicial review?
Yes; four times; No, no parliamentary control because the extension was by decree; No, it was not subject to judicial review although this is possible.
16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)
Appeal for excess of power is available but has not been exercised in practice. There has been no change in this respect.
17. If parliamentary and/or, where applicable, presidential elections were scheduled to take place during the Covid-19 emergency: were they held? Were special arrangements made, and if so, which arrangements? Was it necessary to amend the electoral legislation? What was the turnout? How was it compared to the previous elections? If they were postponed, what was the constitutional or legal basis for doing so? Who took the decision? For how long were they postponed? Was this decision subject and submitted to parliamentary control or judicial review?
No, the next elections are scheduled to be held in October 2021.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
No. Local elections are scheduled in the same year as parliamentary elections, i.e. before October 2021; as for the referendum, the 2011 constitutional reform limited the referendum to consultation on the constitutional review only.
Morocco
The Declaration of War: it is deliberated in the Council of Ministers, it is part of the powers that the King exercises with the countersignature of the Head of Government, and a communication is made to Parliament (Article 49, indent 9).
The State of Exception: this is provided for by the Constitution, proclaimed by the King and is part of the powers without countersignature "when the integrity of the national territory is threatened or when events occur that hinder the regular functioning of the constitutional institutions". The Head of State has full powers in such cases, and governs, legislates and administers. Such a regime was proclaimed only once, on 7 June 1965. The state of exception impacts the institutional balance, which is not the case for other exceptional circumstances. It is global and national, applies throughout the territory and conditions of substance and form are expressly provided for its triggering (Article 59).
The State of Siege: it is provided for by the Constitution, deliberated in the Council of Ministers and imposed for a period of 30 days. It is the exercise of a royal power with a counter-signature of the Head of Government. Such a regime implies the handing over of police powers to the military and entails a limitation of freedoms. It may be limited to a portion of the territory and does not affect the functioning of the institutions. This exceptional regime has never been applied in Morocco and, so far, no text has been passed governing it (Article 49, indent 8).
The High Security Council: this is a new institution provided for in the 2011 Constitution, with a view to better security governance and to respond to the recommendations of the Equity and Reconciliation Commission. Its mission is to resolve crisis situations. To date, it has not yet been set up and the internal regulations governing it have not yet been adopted (Article 54).
The state of emergency: this regime is not provided for by the Constitution and therefore remains justiciable by an infra-constitutional norm, in this case a law - see question 2. Article 81 of the Constitution allows the government to pass decree-laws in the interval between parliamentary sessions, with the agreement of the relevant committees of both chambers, which must be submitted for ratification by Parliament during its next ordinary session. This mechanism was used to adopt Decree-Law No. 2.20.292 of 28 rejeb 1441 (23 March 2020) enacting special provisions for the State of Health Emergency and measures of its declaration (BO No. 6887), which was ratified by Law No. 23.20.
Until now, no text has regulated this, it was only after the Covid-19 that a law on the state of health emergency was adopted (Law N°23.20 ratifying Decree-Law N°2.20.292 of 28 rejeb 1441 (23 March 2020) enacting special provisions for the state of health emergency and the measures of its declaration (BO n°6887) - see here.
The Decree-Law of March 2020 allows the Government, in case of need, to take, exceptionally, any provision of an economic or financial or social or environmental nature that would contribute directly to limiting the negative effects of the state of emergency. It also punishes any person who disobeys the orders and decisions of the authorities with one to three months in prison and a fine of between 300 and 1300 dirhams, or one of the two penalties.
On the instructions of the Minister of the Interior on 4 March, i.e. the day after the first case of contamination, which appeared on 2 March, the administrative authorities, at the level of all the prefectures and provinces of the kingdom, were instructed to take a host of measures restricting freedoms consisting of a ban for the entire month of March 2020 on events involving the participation of persons coming from abroad, including conferences, forums, cultural or sporting events, raids or rallies, as well as any event involving the participation of more than a thousand persons residing on the national territory.
In the same direction, on 16 March, the minister in charge of the administration reform department issues instructions on the measures to be taken in the various public services. In this press release, it is specified that the state of health emergency does not mean the cessation of economic activity, but the taking of exceptional measures imposing the limitation of the movement of citizens. It is added that leaving one's home will be conditional on obtaining an official document from the authorities, according to the following conditions: - Going to work for administrations and open establishments, including companies, factories, agricultural work, premises and business areas related to the citizen's daily life, pharmacies, the banking and financial sectors, hydrocarbon supply stations, clinics and doctors' surgeries, branches of telecommunications companies, essential liberal professions and premises for the sale of hygiene products. In this regard, travel will be authorised only for those persons whose presence at the workplace is necessary and will be conditional on the issue of a certificate duly signed and stamped by their superiors at work. - Travel for the supply of products necessary for daily life within the perimeter of the place of residence, or to receive the necessary care or to obtain medicines from pharmacies; continues the same source, warning that every citizen is obliged to comply with these compulsory measures under penalty of the penalties provided for in the penal code. Within this framework, the local authorities and the Public Forces, National Security, Royal Gendarmerie and Auxiliary Forces, will ensure that the control measures are applied firmly and responsibly against any person on the public highway.
Within the framework of the state of health emergency, the public authorities concerned shall take the necessary measures to: a) ensure that persons do not leave their homes, and shall take the necessary preventive measures, in accordance with the guidelines of the health authorities; b) prohibit the movement of any person from his or her home, except in the following cases of extreme necessity: - movement from home to the place of work, including vital public services, private enterprises, the professions in essential sectors and institutions established by order of the government authorities concerned, subject to regulations laid down by the administrative authorities concerned for this purpose; - movement for the purchase of essential products and goods, including the purchase of medicines from pharmacies ; - travel to doctors' surgeries, clinics, hospitals, medical analysis laboratories, radiology centres and other health facilities, for diagnosis, hospitalisation and care; - travel for compelling family reasons to assist people in difficult situations or in need of assistance. (c) The prohibition of any gathering, assembly or meeting of a group of persons for any reason whatsoever. Exceptions to this prohibition are meetings held for professional purposes, subject to the preventive measures laid down by the health authorities; d) The closure of shops and other establishments open to the public during the period of the declared state of health emergency. Such shops and establishments may be opened by their owners for their personal needs only.
For further details see the decree of 24 March 2020.
Emergency measures have not been invalidated; on the contrary, they have been validated since by two judgments the courts rejected the applicants' claims. For more details on the case law see here.