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
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
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
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