Individuals’ Access to Constitutional Justice: The Role of the Plea of Unconstitutionality in Cleansing the Legal Order

Researcher Tarik Lahrach successfully defended his Ph.D. dissertation in Public Law and Political Science at the Faculty of Legal, Economic and Social Sciences, Cadi Ayyad University, Marrakesh. The dissertation, entitled “Individuals’ Access to Constitutional Justice: The Role of the Plea of Unconstitutionality in Cleansing the Legal Order,” was supervised by Professor Abdelrahim Allam. It was awarded the distinction of Highest Honors, with a recommendation for publication and a special commendation from the examination committee.

The dissertation was examined by a committee composed of:

• Professor Mohamed El Ghali (Chair);
• Professor Abdelrahim Elaalam (Supervisor);
• Professor Mohamed El Massaoui (Rapporteur and Examiner);
• Professor Ahmed Moufid (Examiner);
• Professor Ikram Massira Adnani (Rapporteur and Examiner);
• Professor El Habib Astati Zine Eddine (Rapporteur and Examiner).

The dissertation examines one of the most significant structural developments in Moroccan constitutional justice following the adoption of the 2011 Constitution: the recognition of individuals’ right to raise a plea of unconstitutionality as an unprecedented constitutional mechanism for the protection of rights and freedoms. The study explores how this reform transformed constitutional review by ending the exclusive access previously enjoyed by political institutions and enabling individuals and litigants to challenge the constitutionality of legislative provisions during pending judicial proceedings.

The research demonstrates how Morocco has progressively moved from a traditional a priori model of constitutional review toward an a posteriori system initiated through judicial litigation. It argues that the plea of unconstitutionality constitutes an important democratic instrument for safeguarding constitutional supremacy by identifying and eliminating legislative provisions that are inconsistent with the Constitution, thereby contributing to the cleansing of the legal order.

The central objective of the dissertation is to assess the extent to which granting individuals access to constitutional justice through the plea of unconstitutionality contributes to removing unconstitutional legislation from the legal system. It examines this question within the broader transition from the relatively limited preventive model of constitutional review to a subsequent review mechanism exercised in the context of ordinary judicial proceedings.

The dissertation further argues that recognizing the right to invoke a plea of unconstitutionality, by itself, is insufficient to guarantee constitutional supremacy or ensure the effectiveness of constitutional review. Rather, the success of this mechanism depends upon a coherent procedural and institutional framework capable of balancing wider access to constitutional justice with safeguards against abusive or frivolous litigation. Accordingly, the study examines the admissibility requirements governing pleas of unconstitutionality, the filtering and referral powers exercised by ordinary courts, the scope of judicial discretion in this regard, and the temporal effects of constitutional judgments on legal certainty and the stability of legal relations.

The research is based on the hypothesis that the plea of unconstitutionality constitutes an effective constitutional mechanism for expanding individuals’ access to constitutional justice while facilitating the identification and removal of unconstitutional legislative provisions. Nevertheless, its effectiveness remains largely dependent upon the procedural and institutional framework regulating its implementation. Restrictive admissibility requirements, limited referral mechanisms, or inadequate regulation of the temporal effects of constitutional judgments may undermine access to constitutional justice and weaken the principle of legal certainty.

This hypothesis provides the conceptual framework of the dissertation. It establishes a testable relationship between individuals’ access to constitutional justice through the plea of unconstitutionality and the cleansing of the legal order, while simultaneously examining the impact of declarations of unconstitutionality on the principle of legal certainty and the stability of legal relations.

The proposed hypothesis provides a framework for evaluating the extent to which the plea of unconstitutionality can produce tangible effects within the legal order, both by eliminating unconstitutional legislative provisions and by redefining the institutional balance between the legislative and judicial branches. It further examines how empowering individuals to challenge the constitutionality of legislation enables them to become active participants in constitutional review and strengthens their effective access to constitutional justice.

To test this hypothesis, the dissertation adopts an integrated methodological framework that combines several complementary research methods.

The study first employs a historical approach, tracing the evolution of individuals’ access to constitutional justice across the principal constitutional traditions. It begins with the United States, where judicial review of legislation emerged through landmark judicial precedent, before examining the Austrian model, which established the foundations of centralized constitutional adjudication. The analysis then extends to several European jurisdictions—including Germany, Spain, and France—where systems of a posteriori constitutional review gradually evolved, before considering selected Arab experiences, particularly those of Egypt, Kuwait, and Lebanon. Finally, the study examines the Moroccan constitutional experience, highlighting its distinctive institutional and legal characteristics.

The dissertation also adopts a functional approach to assess the role of the plea of unconstitutionality in expanding individuals’ access to constitutional justice and its contribution to ensuring the conformity of legislation with the Constitution. Rather than treating the subject in purely theoretical terms, the analysis situates the Moroccan experience within a broader comparative framework and examines the institutional and legal structures governing this constitutional mechanism. This approach makes it possible to evaluate the effectiveness of the constitutional institutions responsible for implementing this mechanism while identifying both its strengths and its practical limitations in Morocco and comparable constitutional systems.

Alongside the historical and functional approaches, the dissertation relies extensively on content analysis as its principal methodological tool. Constitutional court decisions concerning pleas of unconstitutionality and their impact on the legal order are systematically examined, covering both Moroccan jurisprudence and comparative constitutional case law. The analysis further encompasses the legislative texts governing this mechanism in comparative jurisdictions, as well as Morocco’s legislative framework, including both Organic Bill No. 86.15 and Organic Law No. 35.24 governing the conditions and procedures for raising a plea of unconstitutionality. Examining these successive legislative texts provides valuable insight into the evolution of the mechanism and the factors influencing its practical effectiveness.

The literature review demonstrates that, despite the richness of previous scholarship, existing studies have focused predominantly on the procedural and institutional dimensions of the plea of unconstitutionality. By contrast, the relationship between individuals’ access to constitutional justice and the cleansing of the legal order has remained largely unexplored, particularly following the adoption of Morocco’s Organic Law regulating this constitutional mechanism.

The dissertation is structured into two main parts. The first examines the historical development of a posteriori constitutional review in comparative constitutional systems while analyzing the Moroccan model within the broader landscape of contemporary constitutional justice. The second focuses on the procedural framework governing pleas of unconstitutionality and evaluates the effects of constitutional judgments on ensuring the conformity of legislation with the Constitution and preserving legal certainty.

The findings of the dissertation indicate several important conclusions. The study finds that the adoption of a two-tier filtering mechanism introduces procedural barriers that may restrict individuals’ access to constitutional justice. It also identifies the absence of clear rules governing the retroactive effect of decisions declaring legislation unconstitutional, particularly in criminal and tax matters, thereby weakening the protection of constitutional rights and reducing the effectiveness of constitutional review. Furthermore, the dissertation criticizes the restrictive interpretation of the concept of “courts,” which narrows the range of judicial bodies entitled to refer constitutional questions, as well as the Constitutional Court’s exclusive reliance on a closed model of judicial decision-making that excludes dissenting opinions, thereby limiting the development of constitutional jurisprudence.

The dissertation ultimately confirms the validity of its central hypothesis: the plea of unconstitutionality represents a promising constitutional mechanism for strengthening the protection of rights and freedoms while facilitating the removal of unconstitutional legislative provisions from the legal order. Nevertheless, the realization of these objectives depends upon the continued development of the legal and procedural framework governing the mechanism and upon a judicial interpretation capable of striking an appropriate balance between constitutional supremacy and the principle of legal certainty.

In conclusion, the dissertation makes an original contribution to Moroccan constitutional scholarship. It is the first doctoral study in Morocco to examine individuals’ access to constitutional justice in light of Organic Law No. 35.24 governing the conditions and procedures for raising a plea of unconstitutionality, while simultaneously assessing the functional impact of this mechanism on the legal order. It therefore represents a significant contribution to Moroccan constitutional scholarship and is expected to serve as an authoritative reference for scholars, practitioners, and policymakers interested in the development of constitutional justice and the protection of fundamental rights and freedoms.