Legal Measures to Prevent COVID-19: The Reality of the Crisis vs. the Mechanism of Prevention. The Moroccan Experience
The spread of the new coronavirus has destabilized the world since it first appeared in the Chinese city Wuhan in the late 2019; it was declared as a global pandemic leaving many victims behind, not to mention thousands of cases of infections around the world.
Moreover, it should be noted that the wide spread of COVID-19 has initiated a crisis with global dimensions, as its remnants have not only reflected on the human element, but have also had extended it to affect many areas, including the economical, political and legal ones.
It has shown the fragility of foreign affairs when among the first consequences of the spread of the virus was to take a defensive stance by all countries of the world through the policy of isolation and border closure because of the fear of worsening the situation and loss of control over the social stability.
Consequently, many countries have resorted to closing their borders and limiting movement within their territory. The French State has approached on March 16, 2020 that the President of the Republic issued his decision to take the necessary preventive measures to reduce interpersonal contact, thus restricting any movements unless absolutely necessary across the French territory, for up to a minimum of 15 days, and allow people to move provided that a written statement is signed to justify it.
However, as Morocco is being strongly involved in the international community, it has been affected by the prevailing situation caused by the coronavirus pandemic and has resorted with the first confirmed case to take many legal measures aimed to prevent the epidemic and to reduce the various potential damages that may result from its rapid spread.
The Kingdom of Morocco hastened to adopt several proactive preventive measures that are necessary to close the maritime, land and air borders. It also put a great emphasis on the order of quarantine, «the stay home» for people who had a direct contact to infected persons or were in risk regions. Morocco rushed to close schools and universities starting «the distance learning» along with the prohibition of mass events.
Furthermore, the Kingdom has opened a bank account called the «National Fund for the Management of the Coronavirus Pandemic» to receive donations and to support the affected groups.
Given that the study on preventive legal measures, taken in order to cope with the new coronavirus, is of global importance, a constant follow-up study on this subject is necessary to give a start to new various national legal measures that Morocco has brought into this context.
Proactive Legal Measures to prevent the Coronavirus Outbreak
The rapidly increasing spread of the coronavirus has required the Moroccan State to take several precautionary measures in order to control the epidemic and to reduce the spread. The Kingdom declared a state of health emergency on March 20, 2020 for this reason.
However, the Moroccan government did not issue the law regulating this state of emergency until 23 March, when the Decree No. 2.20.292 was issued declaring a state of health emergency throughout the national territory to cope with the outbreak of the coronavirus. The decree was published in the official newspaper on March 24, 2020.
This decree entitles the competent authorities to adopt different measures to prevent and control infectious diseases. It also included many objective provisions, namely the criminalization of certain acts that weren’t considered criminal before. Additionally it contained a set of procedural provisions, such as the suspension of legal deadlines, which are listed as follows.
1. Criminalization of certain acts as a preventive legal measure:
Referring to the Decree No.2.20.292 it is clear that the Moroccan legislator has criminalized many acts that weren’t criminal in the past, which are considered to be a violation of the state of health emergency declared in the country. For instance, the criminalization of non-compliance with the authority's orders as well as the dissemination of false news.
• Disobeying authority orders to comply with the state of health emergency
The Decree-law No. 2.20.292, issued by declaring a state of health emergency in the Kingdom of Morocco, included injunctive and deterrent requirements for anyone who violated the orders of the public authority and refused to comply with them, which is clearly seen in the Article 4, which states:
«Anyone in one of the areas where a state of health emergency has been declared must abide by the orders and decisions of the public authorities referred to in the Article 3 above.
Violation of the provisions of the previous paragraph shall be punishable by one to three months' imprisonment and a fine of 300 to 1,300 dirhams (30 to 130 dollars) or one of these penalties, without violating the most severe criminal penalty.
The same penalty shall be imposed on anyone who obstructs the implementation of the decisions of the public authorities taken in accordance with this decree by law through violence, threats, fraud or coercion or incites others to violate the resolutions mentioned in this paragraph, by means of speeches, shouting or threats made in public places or meetings, or by posters displayed in public or through various audiovisual or electronic media, and by any means others use an electronic prop for this purpose.»
As can be seen, the Article 4 is the main basis for the principle of unique punishment, as the decree expressly punishes anyone who violates the orders and decisions of the public authorities regarding the state of emergency. All this disregarding the prejudice to the most severe criminal penalty. A case of theft during this period applies to the requirements of the Criminal Code relating to the crime of theft, and not to the violation of the State of Emergency Law decree.
In fact, it may come to mind that the requirements of this decree conflicts with a set of constitutional rights stipulated in the Title II of the Moroccan Constitution, perhaps the most important of which is the right to freedom and mobility. Despite that, it becomes clear soon that the issue is an exceptional circumstance that calls for the protection of the most sacred rights which is the right to life and physical integrity, which has been denounced by various international laws and conventions.
This is in accordance with the spirit of the Moroccan Constitution, with reference to to the Chapter 21 of the Constitution we find out that it provides the right of the individual to his personal safety and relatives, and to protect his property; as stipulated in the second paragraphs that public authorities guarantee the safety of the population and the integrity of the national territory in respect of the rights and freedoms guaranteed for everyone.
Accordingly, when an individual or collective right is curtailed in order to protect the public interest, such as freedom of movement for example, what the executive power will is obliged to do is based on the principle of constitutional legitimacy.
Mohamed Lyoubi, director of the Epidemiology Department in the Ministry of Health (source)
Spreading and promoting fake news
Given the wide spread of fake news about the coronavirus since its first emergence in Morocco, and due to the psychological nature of the dissemination and promotion of fake news on the social media, especially in this exceptional situation, and because of its negative effects which are manifested in creating terror and fear, whether through the understatement of the efforts of the state and its authorities in preventing the virus, or by denying the existence of the virus and spreading fallacies about it without investigating reliable medical sources.
The Chief Prosecutor is authorized to follow up on anyone who promotes false news about the coronavirus, which has already been carried out through arresting and investigating with a group of individuals if creators were suspected of involvement in the matter, following the circulation of some videos containing false news.
Moreover, the Public Prosecutor's Office has opened 81 judicial investigations in response to false news resulting in the initiation of judicial follow-up against 58 persons while research is ongoing.
2. The suspension of legal deadlines (judicial reporting and appeals):
It should be noted at the outset that the most likely legal adaption of the coronavirus pandemic is classified as a force majeure, the latter of which the Moroccan legislator defines through Chapter 269 of the Law of Obligations and Contracts as follows:
«It is considered to be a force majeure: everything man can't expect, such as a natural phenomenon, enemy raids, and the act of power, which would make the implementation of the commitment impossible.»
Thus the previous proposal, which classifies the coronavirus as a force majeure, is reinforced by the issuance of a series of communications that announced the suspension of work within the courts of the Kingdom, perhaps the most important of which is the communication issued to suspend all hearings except those related to the decision of urgent cases and related to the judiciary of the investigation.
Therefore, the impact of the coronavirus was not only limited to the objective rules, but it has also extended to the procedural rules, where it significantly affected the normal functioning of the case, in other words it has influenced the Judicial time, especially with regard to reporting and appealing as the most important legal institutions that depend on the element of time for their validity.
A confusion about the fate of the proceedings that did not respect legal deadlines was removed due to the force majeure of the coronavirus pandemic, as the aforementioned state of emergency decree in the Article 6 referred to the suspension of all deadlines stipulated in the ongoing legislative and regulatory texts, especially deadlines associated with appeals, whether administrative or judicial, and all the deadlines associated with reporting.
Although, the deadlines are considered to be public order and can only be suspended under a law that provides for the suspension of their calculation and the declared decree of the state of health emergency is legally a position for all legal deadlines to take effect.
The Article 6 of the Decree No. 2.20.292 related to the State of Health emergency / states:
«All deadlines stipulated in the legislative and regulatory provisions in force during the declared period of health emergency shall be suspended and resumed from the day following the lifting of the state of emergency mentioned.
The first paragraph above excludes the appeal sought in cases of persons arrested, as well as the duration of the situation under theoretical guard and pretrial detention.»
The Role of the Judiciary in Preventing and Reducing the Manifestations of the Crisis
In the framework of the national mobilization to confront the coronavirus and to enshrine the principles of solidarity, the Moroccan judiciary in turn followed the same approach and played an active role in preventing and reducing the spread of the COVID-19 by initiating the suspension of hearings in various courts across the Kingdom, except for some special cases (criminal and misdemeanour cases involving persons detained in pretrial detention and held in prison institutions, and cases of investigation and juveniles…)
However, it should also be noted that several memos have been issued aimed at preventing the spread of the COVID-19 by reducing the number of frequent offenders and avoiding bringing detainees to the courtroom as well as delaying the criminal files until the end of the quarantine, in order to avoid the potential risks that may affect the judicial assistants and Justice-fairers.
In the same vein, Mr. Mustafa Fares, Managing Director of the Supreme Council of the Judiciary and the First President of the Court of Cassation, submitted a communiqué announcing the solidarity of the various members of the judiciary by donating a half of the monthly salary to the National Fund for the Management of the Coronavirus Pandemic.
It should also be noted that the role played by the Public Prosecutor's Office, which has turned to the adoption of digitization in constantly receiving and handling complaints by fax and e-mail.
In the same context, the office of the Public Prosecutor announced that in the framework of activating the injunction sought by the Decree No.2.20.292 on the enactment of provisions for the state of health emergency the public prosecutions have followed since the decree entered into force on March 24, 2020, a total of 4,835 people violated the state of health emergency, of whom 334 were referred in custody to the court.
The Public Prosecutor's office has followed up 263 people, including 43 people of whom are in custody for violating certain criminal law requirements, since the public authorities declared the quarantine on March 20 and March 23, bringing the total number of followers in this context to 5,098.
In this regard, the Moroccan judiciary has been quick to issue eloquent orders and rulings adopting the preventive measures imposed by the phase, perhaps the most important of which was the ruling of the Administrative Court of Rabat in order 955 of 31/03/2020, which ruled against a Moroccan citizen and his wife requested to enter Morocco from Spain via the Mediterranean port of Tangier by their car, after which they remained stranded on Algeciras after the declaration of the state of health emergency.
They were drawn by defending the Article 24 of the Constitution which guarantees freedom of movement through the national territory.
While the injunction was based on a decree on the enactment of provisions for the state of health emergency and the procedures for declaring it, which aims to reduce the spread of the virus and prevent it. To clarify, the main purpose on which the previous injunction was based is to avoid a potential infection with COVID-19 that may be caused by the spouses if they were only allowed to enter the Moroccan territory.
Given the above, it can be summarized that the efforts made by Morocco have indeed managed to control the rapid spread of the virus, but the question is: will the Moroccan State manage to keep the current stability by controlling the situation as demonstrated in the near future?
Edited by Nataliya Napetova
