24 Jun
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Constitutionality of Constitutional Interpretation Uncontestable

In his viewpoint article headlined, “Unconstitutional Declaration of Unconstitutionality” (Volume 14, Number 719, February 9, 2014) posted at addis fortune, Mulugeta Argawi argued that the latest constitutional interpretation of Melaku Fenta’s case is unconstitutional, in and of itself. His argument rests on Article 84 (2) of the Constitution. I believe that it is important to counter his argument by focusing on the laws themselves.

Mulugeta’s criticism rotates around the purely legalistic thinking that a court of law cannot entertain any constitutional matter until such a time that either of the parties raise the issue, which should, in turn, be disputed and contested by the other.

But this is true only in a civil suit. It does not hold water in issues of constitutional interpretation.

Constitutional interpretation is not about litigation or jurisdiction. It is all about maintaining constitutionalism. Of course, there are varying mechanisms of interpreting constitutions, but even then, courts do not follow civil procedures.

Let us take the US constitutional tradition, for example. Even though all courts have parallel power to review and decide on issues of constitutionality, there should not necessarily be two litigants fighting for a case. Many cases have been raised as issues of constitutional rights (and hence constitutional interpretations), which were not exactly cases of one party against the other.

The only precondition for constitutional interpretation is people. There ought to be a section of the population adversely affected by the unconstitutionality of a law.

The landmark Malury V. Madison case of 1803 was apparently a “dispute” between two individuals, but there was neither a court litigation nor dispute in the sense Mulugeta understands. It was also not an issue of jurisdiction for the court which decided the case.

On the other hand, if we take Germany’s constitutional experience, which is more similar to our system, the Federal Constitution is not interpreted by regular courts like that of the US. There is no need to have litigants and disputes for the German Federal Constitution Court to decide on the unconstitutionality of a law or practice.

The German Constitutional Court has unique powers of making any legislation ineffective which it believes to be unconstitutional. It has even been criticised for “playing politics” due to its “incessant interventions” in the country’s legislative system.

These examples show that there is no experience in other federal constitutional systems that can prove the idea that constitutions are interpreted in the way civil matters are adjudicated.

To be fair to Mulugeta, one may take it for granted that, by being US-educated, he is well aware of the fact that courts there only handle constitutional issues when they ascertain that there are disputes, contests, litigants and specific causes of action. It is a mystery, then, as to why he failed to take that fact into account in his argument.

Mulugeta failed to provide readers with a balanced view. He rather wants us all to follow his linear argument of unconstitutionality.

All lawyers have been trained in how to read constitutional and provisions. So too are they educated in how to be fair and balanced. One of the most notable expectations from lawyers, in general, and constitutional lawyers, in particular, is to be critical. But they also have to be logical.

I believe that it is not normal for a lawyer to dwell on such big constitutional issues by picking up only two keywords, namely “dispute” and “contest”, from just one constitutional provision and jump into unwarranted conclusions.

Mulugeta’s criticism on the interpretation process and his counterproductive recommendations are based not only on a very incorrect premise that there should be disputes always in order to resolve issues of (un)constitutionality, but also a very weak legal reasoning.

It is not questionable that the defendant (Melaku Fenta) did not initiate the case. Nor did the prosecutors apply to the court for review of either Article 8 (1) of Proclamation 25/1996 or Article 7 (1) of Proclamation 434/2005.  It was the High Court itself that invoked the question of (un) constitutionality of the pieces of legislation and forwarded it to the Council of Constitutional Inequity (CCI).

I wonder, why could the Court, on its own initiation, not invoke the issue of (un) constitutionality of laws which it was going to adjudicate upon, and forward it to the Council of Constitutional Inquiry (CCI) for decision?

Mulugeta thinks that the court is prohibited from doing so under Article 84 (2) of the Constitution. His selection of the sub-Article as the sole relevant provision for his argument and his failure to consider the problem through a comprehensive understanding of all relevant provisions in the Constitution made him to rush to reach a devastating conclusion.

It is essential to read Article 84 (2) of the Constitution more critically and show whether or not it was unconstitutional for the Federal High Court to have initiated a problem of unconstitutionality. It is more helpful to read all the relevant constitutional provisions, the whole chapter of the Constitution as it is and even the intent of the Constitutional Conference, which ratified the Document, instead of cynically selecting one sub-Article and then, out of it, just one or two points.

Article 84 (2) of the Constitution reads, “Where any Federal or State law is contested as being unconstitutional and such a dispute is submitted to it by any court or interested party, the Council shall consider the matter and submit it to the House of the Federation for a final decision”. Let us now breakdown Article 84 (2) and find out the true meaning of Mulugeta’s “Key” words – ‘contest’ and ‘dispute’.

Thus, if one is to go by the provision, a law must be contested for its unconstitutionality. The contest or dispute over the unconstitutionality of legislation must be submitted to the CCI. And any court or interested party has the right to submit the issue of unconstitutionality to the CCCI.

We should, therefore, ask what the meaning of “contest” and “dispute” in the context of Article 84 (2) is. If any court or any affected party has the right to challenge the unconstitutionality of a law (federal of state), constitutional interpretation could be undertaken without the need for a dispute or contest, which bear a plaintiff versus defendant court drama, which Mulugeta argued for.

The words and spirit of the provision are clear and cannot lead anyone with an open mind to believe that it is only when there are contending parties in a courtroom that issues of constitutionality of a law can exist. Laws, as we all know, are administered in the courtroom as well as in the government structures. Hence, the unconstitutionality of a law can come to the surface not only in the courtrooms, but also within the bureaucracy and even on the high street.

The meaning of “dispute” and “contest”, as stated in the provision, is that the question whether or not a law is unconstitutional is not acceptable to everybody until it is resolved by the House of Federation. Thus, any court, or interested party, can directly apply to the CCI challenging the constitutional nature of a legislation. Mulugeta’s analogy of the process of constitutional interpretation to a civil case court dispute is total fabrication.

For anyone who would doubt the exact meaning of the English version of the provision, reading the Amharic text would help to clear any doubt. The Amharic expression is all the more straight forward;  it talks  about constitutional issues (ጉዳዮች) and non-conformity (መቃረን), rather than disputes and contests, even though the meaning in both versions is undoubtedly the same.

The issue seems to be put very clearly. The Constitution is unambiguous in showing that the issue of unconstitutionality can be raised both by the Court as well as by the contending parties, within or outside of the courtroom.

Mulugeta wonders as to how the High Court submitted the question of the constitutionality of the proclamations in a situation where neither the accused nor the prosecutors “disputed” and invoked it. He “advises” the court that “it should have declined jurisdiction because those Articles clearly deny it jurisdiction to hear the case”.

But the court did not hear any “constitutional dispute”. It raised the issue on its own initiation while adjudicating the criminal case of the accused. There was no issue of jurisdiction because, as mentioned above, Article 84 (2) and other relevant provisions have empowered the Court to invoke issues of constitutionality whenever the need arises.

The intention of the makers of the constitution, as reflected in the document itself, was to maintain constitutionalism by all means. The constitutional mechanism of safeguarding constitutionalism is uncontestable.

Kifletsion Mamo

The blogger was one of the drafters of the 1995 Ethiopian Constitution and is currently a member of the Council of Constitutional Inquiry (CCI). You may also check his other articles in Ethiopian Reporter by the following link