The Constitutional Protection of Fundamental Rights during State of Exception

If the state has the duty to protect fundamental Rights and promote it, the integration of human rights norms into its own legal system, and especially its constitution, is the first step to fulfill this moral duty. Why the constitution? Simply because it represents the supremacy of the legal system, the comprehensive Regulation which regulates the Public Power[1] and all the values and principles on which society exists.

In the Moroccan context, the constitutional recognition of Human Rights norms has emerged since the first constitution in 1962. This is reinforced, despite the contradiction between the theoretical level and practice at this stage[2], by the different Moroccan’s constitutions[3], most recently the 2011 Constitution which represents a new mutation in the Moroccan constitutional history. The study of the 2011 constitution shows, with no doubt, that this constitution represents the state’s will to protect and promote Human rights, especially that it contains, unlike the other constitutions, a variety of rights and freedoms, from natural rights[4], to civil and political rights[5], to economic, social and cultural rights[6]. More than that, the 2011 constitution contains for the first time many principles that were absent in the previous Constitutions, such as the principle of separation of powers, the parliamentary ownership system (art1), the recognition of the judiciary as an independent authority(art107) and the rule of law (the preamble).

If all these elements and principles are present, then we’ll be able to speak about the achievement of constitutionalism. Constitutions with these characteristics rule out any absolute or arbitrary power of man over man. By submitting all government actions to rules, a constitution makes the use of public power predictable and enables the governed to anticipate government behavior vis-à-vis themselves and allows them to face government agents without fear. A constitution provides a consensual basis for persons and groups with different opinions and interests to resolve their disputes in a civilized manner and enables peaceful transition of power. Under favorable conditions the constitution can even contribute to the integration of society, its development and its stability[7]. Thus the constitution is considered as “a body of meta-norms, those higher order legal rules-and principles that specify how all other legal norms are to be produced, applied, enforced and interpreted”[8].

All these principles and others represent in other words “the objectives of the Constitution” called « constitutionalism » which refers to the constitutional design, the identification of authorities, the distribution of powers, the separation of power, the fundamental rights and the rule of law. In other words “constitutionalism” refers to the commitment, on the part of any given political community, to accept the legitimacy of the political system and to be governed by constitutional rules and principles[9] that determine who rule, how and for what purposes.In the same context, the Oxford English Dictionary (OED) refers to constitutionalism as an attitude or disposition – “adherence to constitutional principles”[10], and “adherence to a constitutional system of government”[11]. Also, by using the terms of Carl Friedrich, constitutionalism refers to “limited Government”, it’s a situation in which the constitution effectively restrains those who control the coercive instruments of the State[12]. On the other hand, by using the word of “fundamental rights”, I’ll refer to several rights and liberties contained in the constitution.

The aim of this paper is to explore the constitutional principles (the separation of powers, the rule of law, the recognition of fundamental rights and the judicial review) by exploring their functions at the level of the promotion of democracy and the protection of fundamental rights in exceptional/emergency circumstances. The problematic of this paper is related to the ability or inability of the 2011 Constitution to protect fundamental rights during exceptional circumstances. In this context, the hypothesis of this paper is to explore the inability /the weakness of the 2011 Constitution to achieve a genuine constitutional protection of fundamental rights during exceptional circumstances.

To this end, I’ll divide this paper into two axes : The first will focus on the constitutional principles that serve to protect the fundamental rights. The second will discuss the application of these principles to explore “the inability” and “the weakness” of the constitutional framework in the promotion of democracy and the protection of fundamental rights during exceptional circumstances.

[1] For more expansion see: Hicham Khalfadir (October 2017), the constitutional institution in the 2011 Constitution, Jochen  Lobah and Hamza Tayebi (Ed), Trajectories of  Change in Post-2011 Mena: Challenges and Prospects Edited by, Published by Hanns Seidel Foundation..

[2]This stage has been characterized by human rights violations, because of the fierce conflict between the Monarchy and the opposition.

[3] The 1970 Constitution, the 1972  Constitution, the 1992  Constitution, and the 1996 Constitution.

[4] Such as: the right to life (art 20), the protection from torture and inhuman or degrading treatment (art 22), personal freedom (art 23),  and others.

[5] Such as: freedom of thought, of opinion and of expression (art 25), the right to information (art 27), freedom of the press (art 28), freedom of reunion (art 29); and others. 

[6] Such as:  right to healthcare, right ro social protection, right to education, right to decent housing (art 31).

[7] See: Dieter Grimm (Mai 2012), Types of Constitutions, Michel Rosenfield and Andras Sajo (Ed), the Oxford Handbook of Comparative Constitutional Law, Edited by, Oxford University Press, P 104.

[8] See: Alec Stone Sweet (2008), Constitutionalism, Rights, and Judicial Power, Faculty Scholarship Series, Paper 77, 2008, P 219.


[9]See: Alec Stone Sweet, Constitutionalism, Rights, and Judicial Power, Ibid, P 219.

[10] See: Jeremy Waldron (May 2012), Constitutionalism – a Skeptical View,  New York School of Law, Public Law Research Paper No. 10-87, P 3.


[12] See: Alec Stone Sweet, Ibid, P 219.