Amidst the tensions raised by Islamic constitutional states as they deal with non-Muslim minorities, worth considering is how Muslim-majority states have resolved the issue in the past. Morocco editor Ari Schriber considers the political ramifications of Islamic laws governing religious minorities in an episode that faced Morocco as it gained independence: Morocco’s 1962 Baha’i Affair. Morocco’s then-recent independence heralded a progressive government set on both protecting non-Muslims and affording Islam priority as a state religion. Schriber uses the Baha’i Affair to exemplify the tension between these two governmental aspirations, and to discuss how this tension resonated with legal and communal structures in its aftermath.
In 1962, a Moroccan criminal court convicted fourteen Baha’is accused of attacking religious convictions and attacking public order (among other charges). Most literature about the so-called “Baha’i Affair” focuses on the internal political tensions and international outcry that developed around it. This post builds on these analyses but switches the focus to the role of religious norms in Moroccan law. The Baha’i Affair demonstrates an important ambiguity in a legal system that simultaneously guarantees religious freedoms for non-Muslims and enshrines Islam as religion of the state. Using ambiguous religious language had worked to the state’s symbolic advantage when codifying family law based on sharīʿa. For the present case, however, I argue that the negative political ramifications of prosecuting the Baha’is led the state to limit the scope of Islamic discourse in Moroccan law.
Ambiguities of Islam in the 1962 Constitution and the 1962 Penal Code
In November 1962, the Moroccan government promulgated a new national Penal Code. The Penal Code came in a wave of legislation during the first decade of Moroccan independence that sought to reassert Moroccan legal identity. The government had promulgated the 1957 Personal Status Code (Mudawwana) as sharīʿa-based, and Article 6 of the 1962 Constitution declared that “Islam is the religion of the state, which guarantees to all free practice of religion.” For its part, the Penal Code did not explicitly address the status of Islam (or sharīʿa) in the state. Nevertheless, Section II of the Penal Code contains four articles under the heading of “Crimes Pertaining to the Practice of Religion (ʿibādāt).”
The articles addressed in Section II concern the protection of religion and specifically Islam in the Moroccan public sphere. Most relevant to the current case, Article 220 stipulates jail or a fine for “[Whomever], by violence or threats, limits or prevents one or several people from practicing religion, or attending the practice of religion.” It calls for the same penalty for “whomever uses means of instigation to shake the faith of a Muslim [Ar. zaʿzaʿat ʿaqīdat muslim; Fr. ébranler la foi d’un musulman] or to convert him to another religion.” Article 220 thus echoes the ambiguous and potentially contradictory status of Islam found in Article 6 of the Constitution: both outwardly guarantee free practice of religion while clearly privileging the status of Islam in the state.
The government did not promulgate the Penal Code until after the Baha’is’ conviction in the court of first instance. Nonetheless, this statutory ambiguity existed in the adjudication of the Nador case and had direct impact on its later appeal to the Moroccan Supreme Court.
The Nador Case of 1962
On April 10, 1962, Moroccan police in Nador arrested five men suspected of proselytizing Baha’i beliefs. Authorities arrested nine more men in June and July of that year, subjecting all fourteen to interrogation about the nature of their Baha’i faith and their religious activity in Morocco. The police held the men without charge until late October, when they referred the case to the Chamber of Indictment in the Tangier Court of Appeals.
ʿAllal al-Fasi, Minister of Islamic Affairs and erstwhile nationalist hero, led the national charge against the Baha’i defendants. Al-Fasi’s Istiqlal Party had disseminated anti-Baha’i rhetoric in the year leading up to the arrests portraying Baha’is in Morocco as a threat to Islam. Following the arrests in Nador, al-Fasi personally intervened by sending a letter to the Prosecutor General of the Tangier Court of Appeals. Al-Fasi exhorted the Court to charge the group with threatening the security of the state and forming criminal associations. He further claimed that the group harmed public order and prevented citizens from practicing their religion. With his own political standing on the line, al-Fasi hoped to ride Islamic nationalist sentiment to maintain popular relevancy.
The Court proceeded to indict the fourteen men on six charges taken almost directly from al-Fasi’s recommendation: rebellion, disorder, attack on religious convictions, constituting a criminal organization, attack on religious conviction, and constituting an illegal association. The Court claimed that these acts violated Article 120 of the Penal Code then in force, and further cited Morocco’s status as an “Islamic kingdom” in which “Islam is the religion of the state” as bases for the charges.
The text of the indictment focuses more on the differences between Baha’ism and Islam than the actions of the accused themselves. The indictment specifies that Baha’is have a different number of daily prayers, conceive of God in human form, and deny that Muhammad is the last messenger. The document then claims that those embracing these beliefs “provoke[ed] panic among the believers and Muslim citizens, and arous[ed] fear in them and fear regarding their spiritual life and that of their children.” It also notably states that the accused intended to “undermine the state and replace it with a state conceived on a world level,” thus constituting an attack on public order.
The Criminal Court of Nador thereafter pursued these charges pursuant to what al-Fasi had recommended. During the course of the trial, the defense requested that al-Fasi testify, which the judges refused. The defense thereafter perceived the court as so intent to convict that they resigned in protest. On December 10, 1962, the Court convicted nine of the fourteen men of the charges. The Court sentenced three of the accused to death, five to life in prison, and one to fifteen years in prison.
Outcry and Supreme Court Annulment
The verdict and death sentences sparked an outcry of international and domestic condemnation. International organizations decried the verdict as “religious persecution” and frequently characterized the proceedings as a religious “inquisition.” Within Morocco, the appearance and substance of the ruling gave rise to sharp debate between al-Fasi’s partisans and their liberal opponents. The former continued to emphasize that Baha’ism’s divergence from Islam constituted a de facto threat to the security of Muslims; the latter questioned the status of religious freedom and pointed to the tolerance guaranteed in the Constitution and the UN Declaration of Human Rights. The controversy had immediate effect on Moroccan politics, particularly for those who committed themselves to this effort in the name of protecting Islam. In the face of growing domestic criticism, ʿAllal al-Fasi and two others from his Istiqlal Party resigned from the government three weeks after the verdict.
The defendants’ counsel appealed the matter to the Moroccan Supreme Court on the basis that the Nador ruling violated the newly-promulgated 1962 Moroccan Constitution. In particular, they pointed to the Constitution’s guarantee of “free exercise of religion” (Article 6) as the basis of their claim. Perhaps more importantly, the new Moroccan Penal Code—which did not broadly criminalize “attack on religion”—took effect five months prior to the Supreme Court hearing (July 1963). By this time, King Hassan II had also pronounced his objection to the condemnations (despite originally supporting the trials), assuring concerned international audiences that the Baha’is would not face death.
Indeed, on December 12, 1963, the Criminal Chamber of the Moroccan Supreme Court issued a decision overturning the sentences of all men convicted. The Court cited the fact that the accusations against the Baha’i men were not criminalized under the Penal Code. In particular, the Court ruled that no law in the Code criminalized the embrace of another religion—even if that religion “constitutes a danger for Islam.”
Aftermath: The Limits of State Religion
The Baha’i Affair raises a more fundamental—though perhaps less outwardly controversial—question related to religion in law. The official language of Section II of the Penal Code does not specify its statutes as sharīʿa per se. However, they clearly relate to religious norms that are both distinctly Islamic and public—for example, breaking the Ramadan fast in public is illegal (Article 222). The result is the state’s criminalization of an action that distinctly derives from Islamic religious obligations. Arguably, this is the case for criminalizing the disturbance of Muslim faith as well (Article 220). In this way, the state showed a willingness to reinforce legally its Islamic character in ways outside of its formal codification of sharīʿa. However, as the process of promulgating and enforcing 1957 Mudawwana shows, instituting the religious norms in state code does not occur in a political vacuum. Ultimately, the state determines the degree to which ostensibly religious norms are implemented for a given case.
The Baha’i Affair demonstrates a pitfall of embracing an ambiguous Islamic legal identity in the young independent state. It particularly showcases the conflict created when religious freedom laws coexist with laws supporting the legal primacy of Islam. If al-Fasi and his party had succeeded, the case would have stood as a paradigm of Islamic legal privilege in the Moroccan legal system. This would have exhibited substantial weight to the legal language that privileges the standing of Islam. However, the political pressures of the case essentially predetermined the Supreme Court’s decision to overturn the original ruling. In doing so, the Court—at the behest of the King—rearticulated the bounds of the ambiguous religious legal discourse in Morocco. Without clear statutory directive on the nature of religious freedom, the Supreme Court only pronounced such limits after a year-long international controversy.
 The other charges included rebellion, constituting a criminal organization, and constituting an illegal association. L’Affaire des bahaïstes, 36 Confluent 975 (1963).
 For instance: John Waterbury, Commander of the Faithful: The Moroccan Political Elite 292-293 (1970); F. Kazemzadeh, Morocco’s Little Inquisition, The New Leader, Apr. 29, 1963, at 12.
 1962 Moroccan Constitution 2616-bis al-Jarīda al-Rasmiyya 2994 (19 Dec. 1962). The Constitution’s preamble also refers to Morocco as an “Islamic state” (dawla islāmiyya), and Article 19 confers the king with the status of “Commander of the Faithful” (amīr al-muʾminīn).
 [1962 Moroccan Penal Code] 2640-bis al-Jarīda al-Rasmiyya 1272 (5 July 1965).
 The language of the other articles reinforces the ambiguity of what constitutes religious practice in the Penal Code. Article 221 criminalizes the deliberate hindrance of religious practice and Article 223 then prohibits the destruction or defacement of religious objects. Article 222 prohibits Muslims from publicly breaking the Ramadan fast, though this is rather direct.
 Baháʼí International Community, Freedom of Religion on Trial in Morocco: The Nador Case 31 (1962).
 Kazemzadeh, supra note 2, at 11.
 The Istiqlal Party was the original Moroccan nationalist party founded in 1944 during the Protectorate Era. Upon al-Fasi’s return from exile in 1956, he took the helm of the party, yet it soon suffered from internal discords resulting in a split in 1959. By 1962, the party was fighting for its relevance among the Moroccan populace and within the palace. See: Waterbury, supra note 2, at 169-213.
 Kazemzadeh, supra note 2, at 11.
 ʿAllal al-Fasi quoted in Letter to the Prosecutor General of the Court of Appeals of Tangier in Freedom of Religion, supra note 9, at 31.
 “To have discovered and eliminated a plot against the official religion and the State would have given the Istiqlal a tremendous advantage on the eve of the first election under the new Constitution.” Kazemzadeh, supra note 2, at 11.
 L’Affaire des bahaïstes, supra note 1, at 975.
 Article 120 of the 1953 Penal Code states that “the attack [Ar. iʿtidāʾ ; Fr. attentat] whose goal is to rid of or replace the government, be it by inciting citizens to revolt or sedition [Ar. fiṭna]… is punished by life in prison.” [Dahir of Oct. 24, 1953 Creating the Moroccan Penal Code] 2142-bis Bulletin Officiel 1683 (Nov. 19, 1953).
 Id. at 974.
 Id. at 975.
 Kazemzadeh, supra note 2, at 12.
 Louis Gravier, Les “baha’i” étaient notamment accusés d’“atteinte à la foi religieuse,” Le Monde, Dec. 18 1962.
 Freedom of Religion, supra note 9, at 13.
 Kazemzadeh, supra note 2, at 11; Gravier, supra.
 L’affaire, supra note 1, at 976-977
 John Waterbury posits the possibility that King Hassan II framed al-Fasi for failure. In doing so, the king would have facilitated al-Fasi’s embarrassment for supporting this endeavor, thereby leading to his resignation from the government. Waterbury’s broader work demonstrates that preventing any single party from gaining too much power was a hallmark of royal politics during this period. Waterbury, supra note 2, at 293.
 Appeals for Bahai, N.Y. Times, Jan. 15, 1963.
 “The characteristics of the new Moroccan Penal Code could favor clemency of power in the affair of the Baha’is.” Gravier, supra note 23.
 “After the [Nador] trial had begun, King Hassan, in a press conference, described Bahaism as ‘a true heresy’ and therefore unacceptable in Morocco.” Waterbury, supra note 2, at 292.
 “I personally do not agree with the condemnation to death of the Baha’is in Morocco. If the judgment of appeal confirms the first sentence, I can say that I would use my right of pardon” King Hassan II quoted in: Hassan II fait prévoir la grace des ‘Baha’is,’ Le Monde, Apr. 4, 1963.
 Louis Gravier, La Cour suprême de Rabat a cassé sans renvoi le jugement condamnant les Baha’is, Le Monde, Dec. 13, 1963.
 The King expressed his desire to pardon the convicted, and the Public Prosecutor also called for the annulment of the charge before the Supreme Court. Id.