French and Islamic Sources of Moroccan Administrative Law Study of an Antinomic Duality
Being placed at the heart of concrete questions and interrogations of practice, it is undeniable that the judge has often had the initiative. For its part, the doctrine certainly does not aspire to be a source of law, no more ultimately than jurisprudence, but it can be a look, a broadcaster and an echo of this jurisprudence. Dean Vedel emphasizes in this context that the judge pilots, but the doctrine guides otherwise dictates the route, as he sees the general direction of the course. In a series of decisions, the Moroccan judge expressed the will to adapt the jurisdictional protection of the citizen to the religious data of the country. Moreover the principles of Islam are one of the originalities of Moroccan public law. Nevertheless, he finds in the case-law of the French administrative judge, in particular that of the state Council, a reassuring environment which offers him ready-made, orderly solutions which give his decisions the power of consecrated authority. Confronted practically with the same problems posed by the species that are submitted to him, the Moroccan administrative judge seeks from the French judges, who had in their solutions taken a few steps ahead, examples and models. However, the principle of French inspiration does not mean that jurisprudential solutions are transposed as is. The Moroccan judge has the tendency to become independent of the French judge by basing himself on a realism dominated by prudence and progressivity and on national characteristics that have no equivalent in France.
Hougua Ben Ahmed,
French and Islamic Sources of Moroccan Administrative Law Study of an Antinomic Duality, International Journal of Education, Culture and Society.
Vol. 4, No. 6,
2019, pp. 98-104.
M. El Yaagoubi, The protective judge of the administered in Morocco: Between mimicry and empowerment, INFO-PRINT-FES, 2006 (in French).
A. Neyrat. «The report of national administrative law to foreign administrative laws: the cases of France and Spain». Law University of Bordeaux, 2016. p. 3. (in French).
M. El Yaagoubi, The protective judge of the administered in Morocco: Between mimicry and empowerment, Imp. INFO-PRINT-FES, 2006. (in French).
A. C. Marrakesh, October 17, 1995, Europist Company, REMALD No. 17, p. 135 (in Arabic); A. C. Meknes, February 9, 1995, Mohamed Zemouri, REMALD N° 13, p. 143 (in Arabic).
For example: Conclusions on A. C. Fez, October 25, 1995, Alem ben Lahcen Ghazi, RDE 1997, N° 14, p. 198. (in Arabic).
A. C., Meknes, July 27, 1995, Sifouh, REMALD n° 13, p. 146 (in Arabic).
ASC, July 3, 1968, National Association of Professional Insurance Agents, Rp. 153 (in Arabic).
M. Rousset, “Administrative Litigation”. In: International Journal of Comparative Law. Flight. 45 N° 2, April-June 1993.
ASC. January 9, 1960, Loc, Rp. 95, CSA March 19, 1962, Oil Company Annex, Rp. 37; ASC March 24, 1964, HadiL youbi, Rp 200, June 19, 1967 "B" Rp. 104.
ASC, November 21, 1969, Drissi Ahmed, Rp. 199 (in arabic).
M. Rousset, "Administrative Litigation", aforesaid.
ASC; April 22, 1963, Company of expertise and technical visits, Rp. 138.
ASC, 1963, Andalous SARL, R. P. 168.
RDP 1906, Jèze note, p. 249.
M. Tourdias, the reprieve in executing administrative decisions, Thesis 1957.
ASC, Feb. 23, 1961, Seaside society of Morocco, Rp. 83; ASC, July 2, 1975, SOMAP, Rp 282 (in Arabic). ASC, March 1980, Jamaâ Lejana, File No. 70449.
M. El Yaagoubi, The protective judge of the administered in Morocco: Between mimicry and empowerment, Imp. INFO-PRINT-FES, 2006. P. 27 (in French).
E-H Serhane, «Recent developments of the "right of property" in the administrative litigation in Morocco», REMALD N° 20-21, p. 87.
Assault on Freedom, ASC., June 8, 1989, Heirs Nicoliades. Governor of Ifrane Province, Supreme Court Jurisprudence, N° 44, p. 127: Prohibition of applicants from entering their property.
A. C., Rabat, February 7, 1947, Dame R., Reports of Judgments of the Court of Appeal of Rabat, RACAR, T. XIII, p. 133; A. C., Rabat, July 26, 1947, Lamoureux, RACAR, T. XIV, p. 248; C. A., Rabat, January 20, 1948, West, RACAR, T. XIV p. 331; Court of Appeal. Rabat, March 25, 1949, Messina, Moroccan Journal of Law, RMD, 1950, p. 71 note F. Luchaire; Trib. Court of First Instance, December 9, 1953, Widow Guisez, RMD, 1954, p. 83.
ASC., December 4, 1958, Consorts Felix, R. p. 164. Constant case law up to almost the day before the establishment of administrative tribunals, ASC, December 1, 1993, Boulmsamar, Supreme Court Decisions N° 47, p. 27, note Kachbour (in Arabic), same review, n° 48, p. 385.
M-A. Benabdallah, "The assault in Moroccan administrative law", Contribution to the Mixes Offered to Dean Yadh Ben Achour, Center for University Publication, Tunis, 2008, p. 669 and following.; REMALD n° 80, 2008, p. 9 and following.
Law N° 7-81 on expropriation for public purposes and temporary occupation promulgated by Dahir of May 6, 1982, O. B. No. 3685 of June 15, 1983, p. 390.
Article 19 of the Administrative Courts Act states that "The President of the Administrative Tribunal, or the person delegated by him, is competent, as a Judge for summary proceedings and orders on motions, to hear provisional and conservatory applications".
M. Rousset, loc. cit., p. 411.
A. C., Rabat, February 23, 1995, Bendaoui, REMALD No. 13, 1995, p. 89, Benabdallah note. Owning land in Ain Sebt, the applicants claim to have been surprised by the placement of water pipes on their property by the Municipality, without their permission and without their land has been subject of any expropriation. They ask the Administrative Court of Rabat to condemn the Commune to return to his act under penalty of 500 dirhams per day late. The Tribunal, finding the assault, declare his incompetence.
ASC, July 20th, Belkacem, REMALD n° 14 -15, 1996, p. 57.
On these two decisions, see comment M. A. Benabdallah, The Assault and the Law, REMALD N° 14-15, 1996, p. 45 and following.
A. Heidra, "The problem of jurisdictional competence over assault", in Arabic, REMALD, Current Topics Series N° 47, 2004, Ten Years of Jurisprudence of Administrative Tribunals in Morocco, p. 45.
M. Rousset, "Consecration and evolution of the concept of the assault in the Moroccan administrative litigation", REMALD 1996, N° 17, p. 10.
A. C., Rabat, May 2, 1996, Zeroual, REMALD n°. 16, 1996, p. 98.
A. C., Rabat, May 9, 1996, Akouh, REMALD n°. 16, 1996, p. 98.
Commentary on the two judgments, Mr. A. Benabdallah, On the jurisdiction of administrative tribunals in respect of assault, REMALD n°. 16, 1996, p. 91 and following.
M. Rousset, "Consecration and evolution of the concept of the assault in the Moroccan administrative litigation", REMALD n° 17, 1996, p. 9 and following.
Words of the Prophet.
M. El Yaagoubi, The protective judge of the administered in Morocco: Between mimicry and empowerment, Imp. INFO-PRINT-FES, 2006. p. 92.
M. El Aârej, «The Islamic reference in the judgments of the administrative courts», REMALD "Current Topics" 2004 n° 47 p. 29 (in Arabic).
M. El Yaagoubi, The protective judge of the administered in Morocco: Between mimicry and empowerment, Imp. INFO-PRINT-FES, 2006. p. 97-98.
ASC, July 11, 1985, Mohammed Echemlal, Benabdellah note, RJPEM 1988, n° 20, p. 29.
L. Benhalima, Autonomy of administrative law and jurisdictional specificity: reflection on the foundations of Moroccan administrative law, Thesis in law. Strasburg, 1989. p. 216.
A. C., Meknes, January 22, 1996, Regragui Ayada, REMALD 1996, n° 16, p 171 (in Arabic). A. C. Meknes September 26, 1996 Hamzaoui Rachida; REMALD 1997, n° 18, p. 207 (in Arabic), A. C., Fès March 16, 2004 Fikri, file n° 3/7/2003.
M. El Yaagoubi, The protective judge of the administered in Morocco: Between mimicry and empowerment, Imp. INFO-PRINT-FES, 2006, p. 99.
A. C., Agadir 26 June 1998, Chaouki v. President of Alkaraouiine University REMALD, No. 25, p 223 (in Arabic).
A. C., Fez, July 17, 1996, Mrabet Jalila, File N° 96-16.
Council of State, April 24, 1964, A. S. of industrial and commercial deliveries.
A. C., Fez, 9 June 1996, Alaoui Mohammed and others, Case N° 96-205.
Tribe from Mecca to which the prophet belongs.
A. C., Fez April 3, 2001 Ghafer Heirs, REMALD N° 43, p. 158 (in Arabic).
Council of State, January 15, 1986, Epoux Barbier, Rp. 789, Kahn Conclusions, GAJA, 7th Edition, p. 541.
A. C., Paris, April 30, 1963, S. 1963, Toulemon note, D. 1963.428, note Rouast.
GTM October-November 1981, No. 22, p. 85.
Surah Arriche, Verse 49.
M. Rousset, «Retrospective and prospective, the dynamics of administrative litigation 1912-1992», in Administrative Courts and State of law, Proceedings of the International Symposium organized by the Faculty of Law, Marrakech, February 4 and 05, 1994, Seminaries and Colloquia No. 5, 1996.
A. Haddad, Applications of administrative action in Moroccan law, Okaz Publications, 1999.
M. El Yaagoubi, The protective judge of the administered in Morocco: Between mimicry and empowerment Imp. INFO-PRINT-FES, 2006. p. 8.
M. El Yaagoubi, The protective judge of the administered in Morocco: Between mimicry and empowerment, Imp. INFO-PRINT-FES, 2006. p. 11.