Since posting this a few days ago my attention was brought to a Comment that was posted on Facebook. Since I have deactivated my account, the editor of the website copied and sent me the Comment. The Comment is by Abadir Ibrahim who wrote:
SYSTEM
System is commonly regarded as the main characteristics of modern codification and Weiss has identified ‘system’ as a third core feature of continental European codification. The goal of capturing the substance of the law in the form of comprehensive and systematic code is one actively pursued in different countries. A code collects and regulates different fields of law into one organized system.
SIMPLICITY
Simplicity is the last core feature of continental European codification that Weiss has identified. While the element of a gap-less code was addressed to the judiciary, and the systematic element spoke to legal scholars, the element of simplicity is referred to the citizen. Simplicity does not refer only to the technicality of drafting laws.
Codification has often been the means of realizing unification within a particular country and Weiss identified national legal unification as a core feature of continental European codification. Codification often served to attain legal and political unity with previously heterogeneous legal sources. This was particularly true in the nineteenth century, when codification became linked to the emergence of modem nation-states.
Codification was predominantly regarded as a radical reform in form and substance and ‘reform’ is one of the core features of continental European codification that Weiss has identified. The element of ‘reform’ is concerned with whether or not codification changes the form and substance of existing laws. By examining the five historical codifications, Weiss demonstrates that codification is always a combination of change in form and change in substance.
Looking for a file in my computer, I stumbled upon this that I wrote a year or so ago, in relation to a debate/conversation that I was having with friends on facebook. Now I said why not and posted it here.
The thesis
The thesis is: regulation can be used to amend provisions of a proclamation provided that there is clear substantive basis in the proclamation which the regulation is meant to amend. To illustrate this we can take the following hypothetical proclamation and regulation.
Hypothetical Proclamation
Whereas the government has responsibility to protect and promote the safety of its citizens;
1. Introduction
This piece provides a bird’s eye view of the draft proclamation on the Federal Courts with particular focus on issue of Cassation.
Needless to mention, the Ethiopian legal system is used to be typical follow continental legal system as it mainly contains four substantive codes i.e., Civil Code, Criminal Code, Commercial Code and Maritime Code and two procedural codes i.e., Civil Procedure Code and Criminal Procedure Code. This implies that decisions of courts will not have a binding and precedential value to settle future related cases.
Prior to considering the subject matter of this article, a brief explanation of the history of Ethiopian Codes and constitutional development is helpful because it focus attention to the key issues that I would like to raise. The Ethiopian legal system constitutes Constitution, international treaties, codified laws and statues, as a primary source of law. This essay however, limits its self with codified laws and primary legislation.
During the regime of Emperor Haile Sellasie, particularly between 1957 and 1965, a group of highly complex codes – civil code, Civil Procedure code, Penal Code, Criminal Procedure Code, Commercial Code and Maritime Code – were introduced which gives Ethiopia one of the most modern legal systems in the World. Before the introduction of these codes, Ethiopia operated with an informal mixture of legislative/executive and customary laws. Penal, Civil, Commercial and Maritime Codes were modeled on Continental European Law and the remaining two Procedure Codes were based on British-Indian Common Law Models. The introduction of these codes and Ethiopia’s herculean effort towards modernization was described as unique for its ‘eclecticism’ and categorized the country as ‘mixed legal system’.
This is because of two apparent reasons. On the one hand, unlike most African countries which retained at least some post-colonial parental ties, Ethiopia (which has never been colonized) makes voluntary reception of foreign law on the basis of what seems best, and on the other hand, the choice results model from two different legal systems. As stated in the prefaces to most codes, the purpose and goal of these codes was, one the one hand, to establish a perfect knowledge of the law by providing a clear, systematic, compact, complete and authoritative statement of the law and on the other hand, to develop its legal system towards modern states. As a result, the introduction of these set of modern codes marks the end of unwritten or customary scattered rules and the beginning of the modern legislative and regulatory framework of Ethiopia. Although some customary law has been included in civil code all other pre-code law dealing with matters provided for in the code has been expressly repealed.
Furthermore, Legal institutions necessary for the modern legal system including system of court was established before the introduction of these codes in 1942 in order to transform the system to modern legal system. Apart from the Penal code which was entirely replaced by the 2004 criminal code and some scattered amendments of Civil and Commercial Code, all these six codes govern most fields of current legal activity and remain to be in force as primary source of law.
“No law, regulation, directive or practice shall, in so far as it is inconsistent with this Proclamation, have force or effect with respect to matters provided for by this Proclamation”.
1. Introduction
Paradoxically, in most modern societies, the larger proportion of the law—delegated legislation—is not made by elected lawmakers or by the proper legislature.To an increasing extent, law in these countries is made through the Executive branch not by the parliament.The common practice for Acts of Parliament to bestow power (through empowering acts) to make regulations, particularly to Ministers of the government, is an obvious manifestation of this development. As a general proposition, the making of these delegated legislation are exercised as are specifically delegated by enabling Acts of Parliament and this provides for a basic democratic legitimation of executive rules. Parliament may modify, amend or repeal acts passed by itself or its predecessors. The change on enabling Acts of Parliament-either by way of amendment, revision or repeal-will likely have an impact on delegated legislation made by the Executive.
A close examination of the law making process and existing effective laws in Ethiopia depicts the above fact as well. Since EPDRF took power in 1991 there are 325 regulations and 313 Proclamations at federal level. Hence, regulations made by different ministries are greater than proclamations passed by the House of Peoples Representatives, i.e. Parliament. These developments have placed Executive branch in a very powerful position. In other words, regulations matters, and matters increasingly.
Thus, this essay explores the relationship between empowering act of parliament and delegated legislation whenever Parliament repeals enabling Act passed by itself. Particularly, the essay examines the change in empowering Act (Proclamation passed by the House of Peoples’ representatives) and the status of delegated legislation (Regulation made by the council of Ministers) in Ethiopian context.
Introduction
It has often been considered that every addition of a new law in a statute book is amending a prior existing law. As a result, analyzing legislative proposal both in its relation and in its effect with rights and privileges under existing and established law continues to be an important subset of Legislative Drafting. A person engaged in analyzing the legislative proposal should either be familiar with the existing relevant law or know where it can be found. Existing laws, among other things, constitute human right treaties that a country has ratified and form part of its domestic law – either by way of ‘legislative’ or ‘automatic’ incorporation. Legislative and Automatic incorporation of human right treaties into domestic law is traditionally known as ‘Dualistic’ and ‘Monistic’ methods respectively. Regardless of whether a domestic law society is monist or dualist, one way of complying with human right treaties is through analyzing legislative proposals as to whether domestic draft laws accord with the values and principles enshrined under human right treaties.
The main focus of this essay is to examine the Ethiopian method of implementation of international Human right treaties with an emphasis on its impact on drafters’ analysis of legislative proposals.Although the implementation of human rights entails a wide array of activities,[4] this essay briefly discusses incorporation of international standards into domestic laws as a main focus from the variety of activities that states are to take at national level.This essay argues that the method of implementation used by Ethiopia is ineffective and has deprived drafters from analyzing the consistency of legislative proposals with human right treaty provisions. In doing so, the essay proceeds as follows: section one offer the Ethiopian method of implementation of human right treaties. Section two explores Ethiopian drafters’ analysis of legislative proposals and the problem they face as a result of the method of implementation. The final section draws the threads together and concludes the essay.
I. Method of implementation of Human Right Treaties in Ethiopia
As there are no stipulations on how states should implement human rights standards at international level, the implementation of international human right treaties is dependent on domestic law and entirely left to the states to decide on how obligations will be implemented. Domestic legal system must provide favorable legislative and administrative frameworks if treaty based guarantees are to be translated into reality for domestic beneficiaries. In addition, human right treaties incorporate a set of values that have to be respected during interpretation, application and development of legislation and statutory laws. As a result, states must affirmatively incorporate international human right treaties into domestic laws as one method of implementation. Although there are a great variety of domestic methods for implementation of international human rights instruments, there are two common ways of constitutional method which determines the implementation of treaty provisions into domestic laws: legislative incorporation and automatic incorporation. In some countries with the ‘legislative incorporation’ method such as United Kingdom, there is a separate legislative Act enacting specific provisions of a treaty for the incorporation of treaty provision into domestic laws. This method is referred to as ‘dualist’ in that a strong distinction is maintained between domestic and international law, and the latter must be written into the former in order to carry substantial and enforceable weight. In other countries with the ‘automatic incorporation’ method like France, without the need to have separate legislative Act, ratification and publication in the official Gazette simply converts treaty provisions into domestic law. This method is referred to as ‘monist’, in that both domestic and international law are considered equal and as having the same effect.
The method of incorporation of international human right treaties in Ethiopia indicate that Ethiopia does not strictly adhere to one method of incorporation as the Ethiopian constitution provides for both methods.
One the one hand, article 9(4) of the Ethiopian Constitution declares that “All international agreements ratified by Ethiopia are integral parts of the law of the land.” From international law point of view, the wording of this provision tends to show international agreements need to be transformed as the word ‘…law of the land’ usually refers for international agreements to be transformed, rather than merely adopted, into municipal law. Transformation in dualistic state refers to a situation where relevant domestic laws are amended or repealed to comply with international agreements. International agreement in Ethiopia is concluded by the State’s Executive branch which must subsequently submit it for ratification to the House of Peoples Representatives (HPR hereafter). Under Article 55(12) of the Ethiopian constitution, the HPR ‘shall ratify international agreements concluded by the Executive.’ In addition, article 2(2) and (3) of the Proclamation of Federal Negarit Gazette requires that all Laws of the Federal Government shall be published and all Federal and Regional legislative, executive and judicial organs should take judicial notice of laws published under the Gazette. Once they are ratified, all international agreements, including human rights instruments, are integral parts of the law of the land (Art.9 (4) of the constitution). According to these provisions, Ethiopia could be classified as dualist as a national legislation needs to be promulgated in order for the provisions of international instruments to be implemented at the domestic level. However, all ratification proclamations contain only three and sometimes four provisions with short title, responsible organ (sometimes), ratification, and effective date. Although the dualist method is much known for its ‘transformative’ concept, the Ethiopian parliament only declares a mere pronouncement through ratification proclamation. There are neither laws which are amended as a result of ratification nor repeal with the ratification proclamation. In Ethiopian history of ratification proclamation, there is no single ratification proclamation with the actual ratified treaty and there are no translations of the actual treaty provisions.