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;

Since posting this few days ago my attention were 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:

This is an interesting but incomplete work. The author does not try that hard to find counterarguments. Simple examples of counterarguments could be – 

1.         such practice increases the risks of authoritarianism by giving an already powerful executive more powers & risks pulling down democratic progress of the country;

2.         the HPR cannot delegate the power to make proclamations since what is being suggested here is in effect giving the COM the power to make proclamations (you can’t escape by calling ‘regulation’ what is in reality a proclamation);

3.         the regulation power of the COM cannot affect rights and duties of citizens and groups (for ex the regulation cannot increase the age requirement) because only parliament can pass laws that limit rights;

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. 

Modernization relies on law as the means of transformation. In these great processes of transformation, day after day, many more demands for new legislation have been proposed as a reaction to different social, political, economic and environmental situations which seemingly develop independently or deliberately. Governments need effective laws to govern these processes of transformation, by which they achieve their political objectives and public policies. Such need may originate from different sources such as different ministries, a commission of inquiry, politicians, pressure groups, or sometimes from donors. At any moment in time, the government may face with various such drafting proposals on which it has preferences, but cannot attend all of them for lack of enough resources for drafting, enacting and implementing them all. For this reason, the need to make the order in which to draft, i.e. Prioritize with explicit criteria, becomes more and more imperative. Even though the subject of prioritization of drafting proposals is among the subject that have received little attention in legislative drafting, Seidman, Seidman and Abeyesekere have come up with the importance of prioritization and prioritization criteria. Seidman et al have identified four criteria for prioritization of drafting proposals: (1) the gravity of the social problem being addressed; (2) the legislation's anticipated social impact; (3) its do-ability; and (4) the available drafting resources and claim that without these explicit criteria or procedures the resulting prioritization decisions frequently appear haphazard.

In this essay, however, as a center of my hypothesis I will argue that prioritizing drafting proposals is dependent on the full discretion of the highest executive organ and hence, the Seidman et al prioritization criteria do not fit for international application. In order to prove my hypothesis I am going to look at the four criteria of prioritization of drafting proposals put forward by Seidman et al and make a comparative analysis between Ethiopia and Northern Ireland. By exploring the institution for prioritization of drafting proposals, I will particularly examine whether the Seidman et al criteria of prioritization are applicable or not in both jurisdictions. In doing so, the essay is divided into three sections. Section I explores prioritization of drafting proposals and argues prioritization of drafting proposals is dependent on the final decision of the highest executive. Section II first analyzes the two countries institution for prioritization. It then continues in describing the four criteria of Seidman et al into two folds followed by comparison and analysis of the criteria in both jurisdictions. Section III concludes.

I.     Prioritizing draft proposals

COMPLETENESS

A historical and comparative study of continental European codification reveals that codification aims at being complete. Although ‘completeness’ has several implications in different literature Weiss has identified three sub-elements of completeness in the sense of an (a) exclusive, gap-less and comprehensive as the second core feature of continental European codification. In this article each of these elements will be briefly discussed followed by the analysis of the Ethiopian civil code. 

1.      EXCLUSIVENESS

In the previous post, I argued that legal form cannot and should not be used to allocate governmental powers and responsibilities between the federal government on the one hand and constituent units of the federation, i.e., regional states, on the other. On such basis I argued that criminal law as a form of law cannot be said to belong to the federal or regional level of government. Hence, I have cautioned against the literal and independent reading of article 55(5) of the constitution which says that the House of Peoples’ Representatives shall enact a criminal code and regional states shall enact criminal law on matters not covered by the federal criminal legislation.

I submitted that this constitutional provision should be read in light of Article 51 which deals with the powers and responsibilities of the federal government. Accordingly the federal government can pass any kind of law, including criminal law, on matters which fall under the jurisdiction of the federal government. Such matters are provided in Article 51. It is, therefore, the duty of the federal government to demonstrate that the criminal laws it has passed or plans to pass are relating to matters falling under one or more of the twenty-one items in Article 51 and other parts of the constitution. Regional states, on the other hand, can pass criminal legislation on matters which are outside the federal jurisdiction.

I finished the last post by posing a question. Regarding forestry offences, for example, can regional states provide for a higher penalty than what is provided in the federal law for the same offence? I will add another question here and address the two together: can regional states expand or contract the scope of federal offences relating to forestry?

As I have said, if we read Article 55 of the constitution literally and independent of Article 51, we ask a simple question: is the offence provided in the federal criminal legislation? If the answer is yes, then it follows that a given regional state can neither provide for a higher penalty nor expand and contract the definition of the relevant forestry offence. But I have suggested against this rather simplistic reading of the relevant constitutional provisions.

In my view, in order to answer the above question, we must first determine the respective roles of the federal government regarding management of forest resources? Does the federal government have exclusive power over the management of our forest resources? If the answer to this question were yes, then it follows that the federal government would have the exclusive power to develop and enforce forest laws, including criminal laws relating to forestry. But the constitutional reality is different.