Published in English on Jadaliyya.com and in French on Ibn Kafka’s Obiter Dicta
Read the original here.
Written by: Ibn Kafka
Translated to English by: Allison L McManus
As the world now knows, King Mohamed VI, in his habit of granting royal pardons on his annual 30 July Coronation Day, pardoned pedophile rapist, Daniel Fino Galván. In 2011 Galván was condemned in an historic judgment to thirty years in a criminal prison for having raped minors aged two to fifteen. The rapes occurred between the years 2004 and 2010 in a popular neighborhood in Kenitra. After his pardon, Galván left Morocco despite an expired Spanish passport. Either the Spanish consulate or the Moroccan authorities facilitated his departure, even though he has not paid the damages due to his victims. Made public 30 July, the news dropped like a bomb on social networks and made room for an unequalled level of critique – direct and personal – toward the King and his royal decision. For the first time in Morocco’s history, several public demonstrations were held on 2 August across the country criticizing the royal pardon, notably across from parliament in Rabat.
Paralyzed, the state media and officials turned a deaf ear and spoke of everything except for what counted: the royal pardon. The debate on social media included a challenge to the royal prerogative, some suggesting that the king should no longer exercise the right to pardon. (This author does not share the opinion that the principle of pardon should be abolished.) The Minister of Justice deferred responsibility for the creation of the list of those to be pardoned to the palace. The procedure in the matter of royal pardons, which was instituted in a 1958 dahir (royal decree), has been contested, as have the actual roles of the king, minister of justice, and the prime minister. Simply put, the right to pardon is vested in the king under article 58 of the constitution (”the King exercises the right of pardon.”) However, paragraph 4 of Article 42 stipulates that the pardon must be submitted to the prime minister for countersignature, and is devoid of legitimacy without this approval. As for the procedure, it is administered under the 6 February 1958 dahir nº 1-57-387 that relates to pardons. A clemency board is installed under the auspices of the ministry of justice, according to the following conditions:
Art: 9 – A clemency board is established in Rabat, charged with reviewing the requests for remission of penalties as well as the presentations made to the office to this end.
Art: 10 – The composition of this board is comprised as follows:
The Minister of Justice or his delegate, President;
The Director of the Royal Cabinet or his delegate;
The first President of the Supreme Court or his representative;
The Attorney General of the Supreme Court or his representative;
The Director of Criminal Affairs and Pardons or his representative;
The Director of Prisons or his representative.
The Secretariat of the Board shall be provided by an official of the Ministry of Justice.
Art: 11 – The clemency board meets on dates established by the Ministry of Justice and on the occasion of the holidays of Aïd-es-Seghir, Aïd-el-Kebir, of Mouloud, or Coronation Day.
Art: 12 – The board examines applications or proposals that are submitted, surrounding itself with all useful information; it sends an opinion addressed to the Royal Cabinet to be decided according to Our Royal Majesty.
Art: 13 – Our decision is executed at the behest of the Ministry of Justice.
If three institutions are implicated (the ministry of justice, the prime minister, and the king,) it is clearly the king who has the last word. The final decision is up to him alone, as delineated in article 12 of the dahir. Above all, I would like to treat the question that bothers me most: did the Spanish furnish a list of names to be pardoned to the Moroccans at the request of the king of Spain, Juan Carlos, at the time of his official visit, on 15 July? This exonerates neither the king nor the prime minister of the moral and political responsibility of the pardon (for which they are legally accountable,) nor the minister of justice. Employees affirmed that the presence of Daniel Fino Galván among the forty-eight pardoned Spanish criminals would have drawn the attention of the palace. But the crucial question today is obviously the following: Who wrote this name, and under what circumstances (especially knowing that Galván was literally the forty-eighth name on the list, according to a report on Yabiladi).
Returning to the visit of Juan Carlos, we have learned that he had alluded to the release of Spanish prisoners held in Moroccan prisons. Everyone knows the state of prisons in Morocco. It is unremarkable that a foreign head of state would solicit a gesture of clemency in the release of prisoners from conditions that are, if not inhumane, at least degrading. Morocco could have countered with an offer of transfer. A bilateral agreement stipulates that Spanish prisoners convicted in Moroccan courts can complete their sentences in Spain, according to the 30 May 1997 convention on the assistance to detainees and the transfer of sentenced prisoners. Morocco could have also carefully determined the list of prisoners to pardon according to humanitarian criteria (age, family situation, state of health, etc.) or according to the politics of the sentence (short sentence, less serious infractions, good behavior of detainee). These are the usual considerations for pardons. The Moroccan institutions cannot thus be discharged from their very heavy responsibility in the instance of their focus on the preparation of the list.
To summarize: King Juan Carlos paid an official visit to Morocco and discussed the situation of Spanish prisoners in Morocco, asking of King Mohammed VI a gesture of generosity. If Ignacio Cembrero, daily Spanish newspaper El Pais’ correspondent in Morocco, is to be believed, only one name was mentioned. That is the name of Antonio Garcia Vidriel, a famous case in Spain. The alternative comes from the site Lakome, which can hardly be suspected of being motivated by a desire to whitewash the palace in this story. Lakome reported that a list of thirty names was presented to the Mohammed VI, even adding that the name of Daniel Fino Galván was written on the list at the insistence of Spanish intelligence services.
These are the two totally contradictory versions. Either no list of names was presented to Mohammed VI and so thus exclusive responsibility lies with him, or the list of names was presented, with or without the name of Daniel Fino Galván, and extenuating circumstances prevailed. (I am not in agreement with this last argument. Possessing sovereignty, Morocco could have refused the pardon and given the reason of the nature of the crime of pedophilia. I do not see how Spain could have reproached Morocco).
The Spanish version seems impossible to believe. Before this pardon of forty-eight prisoners, Spain had 163 nationals in Moroccan jails. Juan Carlos solicited the pardon of at least one Spanish prisoner. In underscoring the difficult situation of the others, the Spanish foreign affairs ministry (which prepared the royal visit) expected to report the cases of the Spanish prisoners that it wished to have pardoned if Mohammed VI reacted positively.
It must be realized that the ministry of foreign affairs is charged with leading the preparations for any official visit from abroad, with the help of the embassy that is present in the host country. Such a visit typically entails an agenda, not always but usually agreed upon by both parties. In the support of this agenda, at least a general debriefing is prepared for the sake of the head of state, and it may or may not contain more precise accompanying notes. If the discussions are meant to result in concrete results – and the liberation of foreign nationals from host countries counts as a concrete result – the debriefing would detail the specific demands to be made.
It goes without saying that if the process is to include the freeing of prisoners, a list of names or a list of the categories of the prisoners to be freed (by age, type of infractions, state of health, etc.) is commonly provided. In this exact case, given Spain’s 163 prisoners in Morocco, of which forty-eight were pardoned, it seems inconceivable that the Spanish asked for measures to be taken to free detainees without establishing priorities. No country usually seeks random pardons for citizens according to the will of the host country. Alternatively, a pardon for all prisoners may have been requested, but that does not seem to be the case here.
It is difficult to believe that Juan Carlos arrived empty-handed to a bilateral meeting with Mohammed VI, without any list to present in the event a positive reaction from Mohammed VI. Even supposing that he did not have a list at that moment, it is hard to believe that Spain’s embassy in Rabat did not transmit, formally or informally, a list of Spanish prisoners specifically identified as meriting a pardon by the Spanish consulate. If no list was presented, it verges on incompetence; if a list was presented, why deny it? If a Spanish list exists, it is not certain that it would have contained the name of Daniel Fino Galván, because it would be in the interest of the palace and the ministry of the justice to produce it if this was the case. However, the trouble continues, especially with the aforementioned revelations from Lakome.
The trouble continues, and not only on the Moroccan side.