Since 2011, the Moroccan Constitution has given every litigant a new right: to argue, in the course of a trial, that the statute applied to them infringes their constitutional rights and freedoms. What was missing was the law that makes this mechanism work. Organic Law 35.24, published in the Bulletin officiel (Official Gazette) on 6 July 2026, fills that gap. It will not apply immediately, however: a two-year transition period postpones it to July 2028. Here is what to know now.
A right set out in Article 133 of the Constitution
Article 133 of the 2011 Constitution created the plea of unconstitutionality (exception d'inconstitutionnalité). The idea is simple: when a party to a trial considers that a statutory provision applied in its case infringes the rights and freedoms guaranteed by the Constitution, it may raise the point. The question then goes to the Constitutional Court, the only body with jurisdiction to rule on whether a statute complies with the Constitution. For years, this right had no practical effect because no organic law set out its conditions and procedure. Ordinary judges could not set aside a statute on constitutional grounds themselves, and litigants had no way to bring the question before the Court. Organic Law 35.24 closes that gap.
Who can raise the plea, and against what?
The right is open to any party to a trial: an individual or a company, claimant or defendant. The plea targets a statutory provision, meaning a rule contained in a law. It cannot be used to challenge a court decision, a contract or an individual administrative act as such. The alleged infringement must concern rights and freedoms guaranteed by the Constitution. It is not enough for a law to seem unfair, outdated or badly drafted: the party must show that it breaches a specific constitutional guarantee, such as the right to property, equality before the law or the rights of the defence.
- A pending trial: the plea cannot be raised outside a dispute.
- A statutory provision that applies to the case.
- An infringement of a right or freedom guaranteed by the Constitution.
Why it only takes effect in July 2028
Article 31 of the organic law provides for a two-year transition period after publication. The mechanism can therefore only be used from July 2028. This gives courts, lawyers and litigants time to adapt to a procedure that is entirely new to the Moroccan judicial system. In practice, the plea cannot be raised before any judge today. A case filed in 2026 may, however, still be pending in 2028, on appeal or before the Court of Cassation. How the mechanism will apply to proceedings already under way will depend on the wording of the organic law and on how the courts apply it.
What the procedure will mean in practice
The organic law sets out when the plea is admissible, how it is raised and referred, and what effect it has on the trial. These rules will need careful reading when the time comes: a poorly framed plea risks being dismissed without any examination of the substance. Our advice: in long or high-stakes cases, it is worth identifying now the statutory provisions on which the other side relies and checking whether they raise a constitutional issue. An argument prepared in advance can be presented properly as soon as the mechanism opens.
Relevant to individuals and companies alike
The plea is not reserved for landmark causes. It may concern a procedural rule, a tax provision, an administrative penalty or a restriction on carrying out an economic activity, as long as a constitutional right is at stake. For companies, it adds to the usual remedies. For individuals, it offers a way to act on the law itself rather than only on how it is applied. In both cases, it will require rigorous reasoning grounded in the text of the Constitution.
Sources
- Médias24, 17 July 2026: « L'exception d'inconstitutionnalité publiée dans le BO »
Maître Mouad Lahfaia
Lawyer at the Rabat Bar
This article reflects the author's views as at the date of publication. It does not constitute legal advice and is no substitute for an analysis of your particular situation.