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The Ministry of Justice (MoJ)
recently presented for public debate a bill to provide for Licensing
and Administration of Advocates Practicing before federal courts. I
decided to weigh in the debate because I felt that the draft law
involves violation of fundamental rights enshrined in the federal
constitution.
The constitution deserves defense
because it is essentially built on the foundation of principles of
constitutionalism; that is, divided, balanced and limited
government, which is akin to what the government calls
constitutional order. The constitution should also be defended not
because it is perfect but because I believe that if the government
had faithfully observed it, individuals would have enjoyed the
benefit of less government and better protected civil liberties.
The government, through this draft,
is about to, one more time, further push the limits of power the
constitution is designed to secure; hence this defense.
The bill sanctions that the Ministry
be in charge of processing applications for advocacy licenses
including, reviewing applications, preparing and administering bar
exams, marking the exam papers, determining the pass-mark and
deciding to whether issue licenses. The bill also entrusts the
Ministry with the task of administration of advocates, including
offering continued legal education, renewing licenses annually,
taking disciplinary measures - including suspension and expulsion of
attorneys. It is at liberty to apply this power on private
practitioners who ordinarily stand to challenge it in court rooms.
The Ministry, through its public
prosecutor, represents the government; and, private practitioners
represent private persons in adversarial proceedings. Given the
enormous power the bill equips the prosecutor with, it would not be
altogether inconceivable that the former could use its power to
simply deny, permanently if need be, the latter’s fundamental right
to pursue a profession of their choice.
Such potential for abuse of power
could be threatening to the integrity of private practitioners and
reduce them into becoming the appendage of the executive. Zealous
representation of private interests in the courts would be a scary
business particularly in cases a practitioner perceives as
politically sensitive - cases that antagonize the government - as
disciplinary measures could be used to hurt, real or perceived
political opponent. The bill puts private practitioners at the mercy
of prosecutors by making the latter the judge of the former’ its
adversary.
This is clearly a classic case of
conflict of interest; ironically, the same draft warns practitioners
to avoid placing themselves in a situation of conflict of interest.
It is the judiciary, as the only independent and impartial branch of
the government that needs to be in charge of licensing.
The bill also openly refuses to obey
a simple constitutional command; equal protection of the laws. It
allows the MoJ to treat judges, prosecutors and private
practitioners differently. It requires aspiring private
practitioners to satisfy strenuous licensing requirements, including
five years of relevant experience, passing the bar exam,
unimpeachable moral character before they join the rank of officers
of the court.
Lawyers the government wishes to
hire as judges and prosecutors, however, do not need to bother going
through the same screening process. This is obviously in
contravention of the constitution which states, “All persons are
equal before the law and are entitled without discrimination to the
equal protection of the law.”
The bill does not say what has
compelled the government to resort to unequal treatment of judges,
prosecutors and private practitioners. The government might not
always succeed in finding licensed attorneys that could agree to
serve as judges and prosecutors and therefore it needs to lure them
by lowering the standard could be one reasonable argument. Such
consideration, however, cannot be compelling enough to put in
jeopardy a right as fundamental as the equal protection of the laws.
The government can advance its
interest of attracting licensed lawyers to become prosecutors and
judges by narrowly tailored means, including offering handsome
salary and attractive benefit packages.
The discrimination is not only
unconstitutional but inefficient and ineffective as well. It is
really not easy to understand why the bill resorted to man the
courts with judges and the Ministry with prosecutors who do not
satisfy the same admission standards as private practitioners. It is
not clear why it decided to damage the very fabric of public service
by assigning second rate judges and prosecutors to handle the task
of administration of justice.
Hiring less qualified lawyers to do
the job of judges and prosecutors would only compromise the quality
and integrity of those important institutions.
It should be emphasized that less
competent lawyers would render the prosecutors less confident and
the courts less independent as the judges and prosecutors would tend
to logically attribute the preservation of their respective
undeserved positions not to their competence but to the
“magnanimity” of their benefactor; the executive. I wonder whether
the government is serious about the need for proper administration
of justice to begin with.
The bill further stipulates that a
federally licensed advocate “may render advocacy services in state
courts as long as he knows the working language of the state.” This
provision allows the federal government to trample on the
jurisdiction of the states. The federal government has no business
regulating the licensing of lawyers that wish to appear before state
courts; this is the least the states should be left to do for
themselves.
Federal Ethiopia is composed of
sovereign member states that are constitutionally empowered to enact
laws they deem necessary to regulate the affairs of their respective
people. One of those laws could be relating to the issuance of
advocacy licenses that require lawyers to be well versed in state or
local laws.
What if a state chooses to ignore
the federal licensing law as unsuitable to its reality and resorted
to enacting its own licensing law to screen applicants who wish to
practice law in the state? Who gave the federal government the power
to issue advocacy licenses to lawyers to practice law in states?
The very idea of a government -
state or federal - implies the power of making laws. If the federal
government takes away the legislative power of the states,
federalism would be left with no or little practical meaning.
It is important to note that the
states are not constitutionally allowed to delegate their law-making
power to the federal government even if they wanted to. It is the
other way round that the constitution permits. And this kind of
delegation lies at the very heart of federalism inspired by the
entrenched fear states harbor against the center; at least this was
the rational that triggered the kind of constitutional arrangement
this country has today.
The federal government does not have
the jurisdiction to regulate for the states in the area of issuance
of advocacy licenses as different states could enact different laws
specific to their realities that could call for particular legal
services the federally licensed lawyers cannot competently provide.
The same bill makes Ethiopian
nationality a requirement for advocacy license. This too is clearly
in contravention with the federal constitution.
The constitution and the
international covenants on human rights ratified by Ethiopia, which
are “integral part of the law of the land” clearly proclaim that
persons within the jurisdiction of the country should not be
discriminated against on the basis of their nationality, among other
things, in their pursuit of the profession of their choice.
Does this mean that foreign
nationals of Ethiopian origin (FNEO) are free to come back to
Ethiopia and engage in any profession of their choice without any
restriction whatsoever?
No; on the contrary, the country can
restrict - by law - the right of such people provided it articulates
a compelling national interest to justify the restriction.
Governments do constitutionally
restrict foreign nationals from gaining access to, for instance,
what could cause national security breach. The bill, however, does
not tell how issuance of advocacy licenses to competent members of
foreign nationals of Ethiopian origin could remotely relate to
national security concerns. It is actually a matter of public record
that the Ministry of Foreign Affairs (MoFA) has rejected this
unexplained ban imposed on these people because the former could not
think of any compelling interest the government could advance by
excluding them.
I have had an opportunity to discuss
the matter with government officials who ventured that opening up
the profession to foreigners of Ethiopian heritage would be a
“politically sensitive” move.
It is not easy to comprehend why
government officials strongly feel that the “politically sensitive”
argument could pass for an articulable compelling national interest
enough to restrict the constitutionally recognized right to earn a
living by a free pursuit of one’s profession. The government should
recognize that supremacy of the constitution means that a
functioning constitution is supreme to all, including those that are
considered to be “politically sensitive” matters.
Constitutional order simply means
that it is the constitution that governs the politics of the nation
and not the other way round. And the “politically sensitive”
argument is merely political and not legal or constitutional
argument.
If passed, as is, the bill would ban
the participation of Ethiopians of foreign nationality who happened
to be attorneys from returning to take part in the service of the
people of their country of origin. And this sounds particularly
offensive when we consider the fact that attorneys of foreign
nationality are allowed to represent Ethiopia’s claim of national
significance in international legal arenas (including the boundary
commission) while foreign national of Ethiopian origin are forbidden
to represent private persons before the courts of the country of
their origin.
Also the bill lacks vision. Ethiopia
is currently actively seeking accession to the World Trade
Organization (WTO); this could happen in the near future. When the
country joins the WTO, the least it would be required to do is open
up to lawyers who happen to be Ethiopian who hold foreign passports.
A law that refuses to see events that could soon occur and
significantly shape the course of the country in the near future is
nothing more than a short sighted exercise of legislative power.
Still further, the bill, if passed,
as is, would undermine the most important effort of the
constitutional order; that is combating government arbitrariness.
Article Six of the bill lists the seven documents a candidate
requires to attach with the application form. It then states as
document eight “such other information required”.
What other information the Ministry
may require is anybody’s guess. This unknown requirement may be a
product of bad draftsmanship or a carefully crafted provision to
promote executive aggrandizement. Whatever the case maybe, this
power is so broad and so unlimited that it is a clear anathema to
the constitutional order the government insists to be jealously
guarding.
Another area of concern has to do
with appeal.
The bill allows appeals to the
courts only those lodged based on error of law. Even then, the
courts will not have the final say on such appeal. This is
problematic because it is not always easy to see the difference
between error of law and error of fact in a case that involves real
litigants of concrete issues. Besides, it is not for the government
to order the courts not to review the merits of justiciable cases
that involve violation of fundamental rights. Neither should it be
its business to subject such appeals to an endless back and forth
game between the judiciary and the executive without offering a
shred of compelling national interest that necessitates the
restriction.
This unexplained restriction of the
constitutional power of the courts is another act of erosion of the
constitutional order.
If government intransigence
continues unabated, the constitutional order will have a legitimate
reason for concern that it could sustain more harm from the steady
assault the unconstitutional exercise of law-making power causes.
And it is this anxiety that laws like the bill just discussed once
again evoke. |
