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Constitutional Law II Constitutional Law II Developed By: Sileshi Zeyohannes (LL.B, LL.M) Sponsored by the Justice and Legal System Research Institute 2009 Table of Contents Introduction……………………………………………………………………… 1 Part I: Historical Paradigm Chapter I: Development of Documentary Constitution………………………… 3 Section I: Ancient and Medieval Documents of Constitutional Nature……………. 3 1.1 The Ser’ata Mengist……………………………………………………. 3 1.2 The Fetha Nagast……………………………………………………….. 4 1.3 The Classical Gada System……………………………………………. 6 Section II: 1931 Constitution and 1955 Revised Constitution (Aristocratic/Monarchical Paradigm)…………………………………………………………………………… 7 2.1 The 1931 Constitution: the Japanese Paradigm…………….. 12 2.2 The 1955 Revised Constitution: Seemingly the Westminster Paradigm and the Aborted Reform thereof…………………. 15 Section III: The 1974 Revolution and the 1987 Constitution: the Soviet Paradigm…. 19 Section IV: The Transitional Charter: Reverse Approach to Nation-State Formation – Prelude to Federalism……………………………………………………………………………. 28 Chapter II: Dimensions in respect of Nation, Nationality and Peoples of Ethiopia… 35 Section I: Putting the Conflict in perspective……………………………………….. 35 1.1 Instrumentalists……………………………………………………… 35 1.2 The Process of State Formation: Political, Economic and Cultural…. 36 1.3 Some Reflections……………………………………………………. 37 1.4 The Other Perspective……………………………………………….. 38 Section II: The National Oppression Thesis and the Question of Nationalities…….. 40 2.1 Building Multi-Cultural Democracies……......................................... 41 2.2 Ethnicity, Nationalism and Multicultural States……………………. 41 2.3 The Position of FDRE Constitution of Nation Nationality and Peoples…. 42 2.4 National Minorities in Ethiopia……………………………………… 43 2.5 Minorities in the Context of Nations, Nationalities and Peoples……. 44 i 2.6 Types of Minorities…………………………………………….. 48 Section III: - The Agenda of the Then, Today and Tomorrow…………………… 53 3.1 Proposition: Policies for Ensuring the Political Participation of Diverse Cultural Groups……………………………………………………………. 57 3.2 Policies on Religion and Religious Practice……………………… 64 3.3 Policies on Customary Law and Legal Pluralism………………… 68 3.4 Policies on the use of Multiple Languages……………………….. 70 3.5 Polices for Redressing Socio-Economic Exclusion………………. 72 Chapter III: Typologies of Federations………………………………………… 78 Section I: Theoretical Foundation of Federalism…………………………………. 78 Section II: Different types of Federations………………………………………… 81 Section III: Division of Functions between Levels of Authority…………………. 87 Part II: FDRE Constitution: Vertical and Horizontal Division of Power (HPR) Chapter I: Form and Scope of Distribution of Powers Exclusive Powers….. 90 Section I: Exclusive Powers……………………………………………………… 90 Section II: Shared Legislative Powers……………………………………………. 95 Section III: Concurrent Powers…………………………………………………… 101 Section IV: Residual Powers……………………………………………………… 102 Section V: Fiscal Federalism: A General Description……………………………. 105 5.1 Division of Revenue-Raising Powers and Responsibilities………. 107 5.2 General Remarks about Taxation…………………………………. 108 5.3 Some Economists’ Theories Concerning Division of Taxes………. 109 5.4 General Constitutional Methods in Division of Tax Powers……… 111 5.5 Structure of Allocation of Taxation Power in Ethiopia…………… 114 Section VI: Federal and State Relation……………………………………………. 120 6.1 Dual versus Executive or Functional Federalism………………….. 120 6.2 Nexus………………………………………………………………. 122 ii Chapter II: HoF and the Office of the President………………………………. 127 Section I: Federations and Second Chambers: HoF………………………………. 127 1.1 HoF: Its Role in the Interpretation of Constitution………………. 141 1.2 Its Role in Fiscal Matters…………………………………………. 153 1.3 Miscellaneous Powers……………………………………………. 155 Section II: The Office of the Presidency………....................................................... 160 Section III: The Head of Government (the Executive) – the OPM and the CoM….. 162 3.1 Parliamentary Systems of Government…………………………….. 162 3.2 The Office of the Prime Minister…………………………………… 169 3.3 Synopsis: Parliamentary Control over Defense……………………. 184 Charter III: The Judiciary and Other Organs of Control………………….. 189 Section I: Judicial Power………………………………………………………… 189 1.1. Exclusive Power……………………………………………………………. 189 1.2. Shared Judicial Power……………………………………………………… 192 1.3. Jurisdiction………………………………………………………………… 194 1.4. Power of Cassation………………………………………………………… 204 Section II:- Power of Other Organs of Control……………………………………. 208 1.1 The Institution of the Ombudsman: The Swedish Parliamentary Ombudsman System……………………………………………………………… 209 1.2 The Parliamentary Ombudsmen and the Constitution…………………. 211 1.3 Organization and Duties……………………………………………….. 212 1.4 Investigatory Powers……………………………………………………. 214 1.5 Cases Initiated by the Ombudsmen…………………………………….. 218 1.6 Inspections and Annual Reports………………………………………… 218 Part III: Miscellaneous Concerns CHAPTER I: BILL OF RIGHTS…………………………………………………. 221 Section I: International Perspective………………………………………………….. 221 1.1 Universal Declaration of Human Rights (UDHR)……………………. 222 iii 1.2 The Rights Protected…………………………………………………. 225 Section II: International Convention on Civil and Political Rights (ICCPR)………. 225 2.1 The Rights Protected………………………………………………… 226 2.2 Enforcement Mechanisms……………………………………………. 227 Section III: The International Convention on Economic, Social and Cultural Rights (ICESCR)……………………………………………………. 232 Section IV: Difference between ICESCR and the ICCPR…………………………. 236 Section V: Human Right under FDRE Constitution………………………………… 239 4.1 Status of International Human Rights………………………………… 241 4.2 Catalogue of Rights…………………………………………………... 242 4.3 Enforcement: Mechanisms……………………………………………. 244 Section VI: Other Major UN Human Right Treaties………………………………… 246 6.1 Convention on the Rights of the Child………………………………... 246 6.2 Convention on the Elimination of all forms of Racial Discrimination… 249 CHAPTER II: Emergency Powers………………………………………………. 252 Section I: Kinds of Emergency…………………………………………………….. 256 1.1 War Emergency……………………………………………………… 257 1.2 Other Public Emergency…………………………………………….. 258 Section II: Impact of Emergency on Fundamental Rights: Limits of the Power of Derogation………………………………………………. 259 CHAPTER III: Constitutional Interpretation and Creating Nexus (Mainstreaming) of Constitutional Values…………………………………………… 266 Section I: Principles of Interpretation in Continental and Common Law Systems…… 266 1.1 Literal Theory…………………………………………………………. 277 1.2 Intentional or Subjective Theory………………………………………. 280 1.3 The Purposive Theory………………………………………………….. 282 1.4 Teleological Theory…………………………………………………….. 285 1.5 Systematic or Comparative Theory…………………………………….. 286 1.6 Objective Theory or Delegation Theory……………………………….. 287 iv Section II: Constitutional Interpretation: Illustrations of; Illustrations for literal interpretation or definitions……………………………………………………………… 288 Chapter IV: Creating Nexus (Mainstreaming)………………………………… 289 Section I: Principles and methods of Establishing Nexus between Basic Constitutional Concepts and other Laws………………………………………………………….. 291 1.1. Source of Law -Legal Materials (Inputs) and Criteria of Validity……. 291 1.2. Tools-Quality of Provisions and /or Components of Laws-to forge (to erect) a Legal system/Building Blocks of Laws……………………………………… 292 1.3. Objective–Preservation and Development of the Qualities of mankind… 293 Section II: Jural Relation……………………………………………………………… 294 Section III: Nexus of the Constitution: Internal and Vis-à-vis Basic Regime of laws… 294 1.1 Distributive justice: Advantages… rights… power……………………….. 294 1.2 Corrective (Remedial) justice Disadvantages …duties … liabilities……… 297 1.3 Illustrations……………………………………………………………….. 302 Annexes 1. Pro. No. 359/2003………………………………………………………….. 305 2. Pro. No. 251/2001………………………………………………………….. 312 3. Pro. No. 250/2001…………………………………………………………. 321 4. SFS 1994: 134/Printed on 19 April 1994 Act……………………………. 330 5. Pro. NO. 211/2000………………………………………………………… 337 6. Pro. NO. 210/200………………………………………………………….. 350 7. Illustrations of Interpretation…………………………………………… 363 References………………………………………………………………………….. 370 v Seleshi Zeyohannes, Constitutional Law II Introduction This text is not yet polished not well pounded. It remains on you, instructors and students to contribute for its embitterment. For the time being I‟m grateful for Dr. Assefa Fisseha and Dr. Solomon for their beautiful works, which I made a lot of use. In doing, I might have committed some distortions. I apologize. I did it for good of our students; not for any malice aforethought. This course is divided into three main parts which are further divided into chapters. A) Part I, course chapters that focus on Historical Paradigm, Nations, Nationalities and Peoples; Policy Paradigms (the Agenda); and Typology of Federation. B) Part II addressed salient features of FDRE Constitution. Hence, the First Chapter is devoted to revealing allocation of power between the Federal Government and the States and, the power of HPR. The second deals under the powers of HOF. Them, attempt has been made to give a short glimpse of the Office of the Presidency. The last section outlines the powers and responsibilities of the Offices of the PM and COM. C) The third Part deals with multiple concerns; which include Bill of Rights and Emergency, theories of constitutional interpretations, making nexus with or mainstreaming of constitutional values. Page 1 of 372 Seleshi Zeyohannes, Constitutional Law II Acknowledgments My acknowledgment goes to all those
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