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Published On  Nov 20,  2011
   
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/Viewpoint

Defending Legal Reasoning Judicious 

 

In  last week’s viewpoint headlined, “In Defense of the Constitution,” Mulugeta Aregawi criticized the Ministry of Justice (MoJ) for drafting a bill, which he judged on various counts as unconstitutional. Indeed, I share the overall sentiment that subsidiary laws must be checked for constitutional validity before they take effect. Further, I agree that the constitution has to be guarded from the unfettered reach of the executive branch of the government in order for citizens to enjoy individual liberties that they are inherently endowed with. Nonetheless, the draft bill discussed does not warrant the flurry of criticisms.

It was argued that the draft bill on Licensing and Administration of Advocates Practicing before Federal Courts challenges the essence of constitutionalism that the Ethiopian constitution seeks to realize. As evidence, it was pointed out that, among other things, the bill included a provision that entrusts the MoJ with the power to process applications for advocacy licenses and with the task of administration of advocates. In doing so, the argument goes, the government is further pushing the limits of power the constitution is designed to secure. This assertion, however, does not withstand closer scrutiny.

The MoJ does not need new laws to exercise the kinds of power mentioned for it already enjoys this same under the existing law. This is in no way to dismiss the apparent conflict of interest that is likely to ensue with the Ministry’s exercising of this power. Indeed, given the power of prosecution the Ministry currently has, a mandate to license advocates and revoke the same on disciplinary grounds, can threaten the professional independence of advocates, which, in turn, could result in miscarriages of justice. Yet, the MoJ has had this power for more than a decade.

Citing the enormous potential for abuse, the former argument suggests that the judiciary, as an independent and impartial organ, be in charge of licensing advocates. I know of no country where the judiciary is involved in the licensing of attorneys. This is in no small part due to the fact that licensing is a regulatory function, and hence naturally fits as a mandate of the executive branch of the government.

Thus, to strike a balance between protecting the professional independence of advocates on the one hand and the state’s desire to regulate the conduct of advocates on the other, many countries give the power of licensing and administration of advocates to bar associations. It would have been more laudable to recommend that the Ethiopian Bar Association discharge the function. Unfortunately, the government repeatedly dismisses this proposal as unacceptable owing to what it claims to be the weakness of the Association.

The argument has even made a far-fetched legal argument that the draft law violates one of the most fundamental principles of the constitution: equality before the law.  By requiring advocates to go through rigorous licensing requirements, which judges and prosecutors are not subject to, the claim submits that the draft law is in gross violation of the principle of equality.

This argument is factually misleading and legally untenable. Quite contrary to the sweeping statement, judges do pass through a screening process of their own, which is no less rigorous than the advocates’ licensing procedures. Whether this screening process has ensured the kind of judges the country would like to see is a different question altogether. The fact remains, however, that judges do pass through a rigorous procedure that includes approval by the Parliament.

Yet, the argument might retort that their subjection to parliamentary approval, a process advocates and prosecutors are not subject to, violates the principle of equality before the law.

As to my knowledge, there is no country where judges, attorneys and public prosecutors pass through identical screening processes. Letting different professionals pass through different tests does not amount to unequal protection before the law. 

Furthering its reach, the assertion concludes that the nationality requirement in the bill is a contravention of the Constitution. By restricting legal services to Ethiopians, it avers, the government is violating both the constitution and international commitments as reflected in the Human Right Conventions the country has ratified. Certainly, this is an exaggerated interpretation of the law.

Does it also mean that the Ethiopian investment law, which restricts certain sectors exclusively for Ethiopian nationals, is unconstitutional?

Foreigners of Ethiopian origin, for instance, cannot invest in the banking sector. If the argument was pushed to its logical conclusion, such laws too would have no constitutional leg to stand on.

As it happens, the assertion also puts forth an argument that by prohibiting foreigners from practicing before Ethiopian courts, the draft bill lacks vision. In supporting the claim, the inevitable liberalization of legal services as a result of future accession to WTO membership was pointed out. It was further stressed that the country would be required to open up to lawyers, who happen to be Ethiopian and hold foreign passports, when it joins the WTO. This statement is factually wrong and tends to misinform policy makers.

Having been involved in Ethiopia’s WTO accession process for quite some time, I know that the experiences of other countries have been different. The commitments taken by countries like Cambodia, Nepal and Vietnam, to mention a few, show that none of these countries were asked to open their domestic legal service market to foreigners. This is a testament showing the charge as baseless.

In the laundry list of unconstitutional provisions, the argument calls attention to the manner in which the right to appeal is treated by the draft law. Advocates dissatisfied with the decision of the MoJ can lodge their appeal to the court. This appeal is, however, limited to errors of law.

Yet, it suggested that this right should never be limited as it is not always easy to see the difference between error of law and error of fact. Judicial reviews such as this are generally limited to questions of law, and the draft bill, by restricting appeals to questions of law, is in line with accepted principles of appeal.

Virtually, the draft bill may suffer from a number of limitations, but the rushed judgment to declare the bill unconstitutional is not well substantiated, legally or factually.

BY ABEBE ABEBAYEHU

Abebe Abebayehu is an adjunct lecturer of law at Addis Abeba University. He also serves as a senior private sector development specialist at the Ethiopian Public Private Consultative Forum Secretariat. He can be reached at abebechekol@gmail.com. 

 
 
 
 
 
 

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