The State Responsibility for Legislation Between Legal Provisions and Jurisprudence
Dr. Zakaria Khalil
Vice Dean and Head of Private Law Department – School of Legal – Economic and Social Sciences – University of Cadi Ayyad in Marrakech – Morocco
The prevailing principle was that the State was not responsible for the acts of legislation, since the enactment of laws was one of the highest manifestations of State sovereignty and constituted an exception to the principle of State liability for the damage caused by its facilities, on the grounds that the concept of sovereignty was incompatible with responsibility. The law is considered one of the most important aspects of this sovereignty.
The exception is based on the argument that subjecting the Parliament to the control of the judiciary is contrary to the principle of separation of powers. The purpose of enacting laws is to organize and protect rights, which cannot be achieved unless the State is authorized to exercise the task of enacting laws and making it a manifestation of absolute sovereignty without the possibility of mentioning its responsibility for them or bearing any consequences for this organization, because this would be an obstacle to achieving the goal of enacting laws.
However, in the light of developments in modern legislation, and in light of the development of the philosophy that has governed the purpose of legislation in relation to the universal human values adopted by most countries, the previous justifications no longer serve as a basis for saying that the state is not responsible for legislation.
The expansion of the scope of the State’s activity and the increase of its laws in order to achieve its overlapping trends on the one hand, and the necessities of applying the principle of equality in regards to public burdens and costs on the other, all call for the rejection of the old principle and the adopting of the principle of State responsibility for the damage caused by its laws.
In this context, the experience of the Moroccan judiciary involves the establishment of the principle of State responsibility for legislation, especially after the promulgation of the 2011 Constitution, which gave each litigant the right to file a case against the unconstitutionality of the law to be taken in regards to the case and to oblige the court to refer the case to the Constitutional Court to decide on the constitutionality of the discussed law, against which a case is being raised. This will open the way for the recognition of State responsibility for the situations established by or affected by this law.
Therefore, this intervention is aimed at exposing the foundations of the state>s responsibility for the legislations that it adopts, and presenting the Moroccan experience in this context, based on the positions of Moroccan jurisprudence and the prospects opened by the new constitutional requirements.