Constitutional Adjudication by Parliaments: Lessons from Comparative Experience 31
rights and the HoF lacks the requisite independence to exercise the necessary
checks and balances against government organs and as such does not protect
human rights.7 There is plentiful scholarly literature that critically analyses the
fact that the HoF cannot effectively interpret the Constitution, as a result of
different recommendations are forwarded.
The tradition of empowering parliaments to interpret constitutions in socialist
states was more common and currently exists in China where the National
People's Congress (hereinafter the „NPC) is empowered to do so by virtue of
Article 62 of the 1982 Constitution. This arrangement was categorized as one of
the weak forms of constitutional review which gave unlimited power to the
government and ultimately to the Communist Party of China (hereinafter „the
CPC‟).8 Therefore, Ethiopia should draw lessons from historical and
contemporary failures and difficulties.
So far, scholarly works have addressed the issue of whether a parliament
could effectively interpret constitutions both theoretically and in practice.9 But,
this issue has not been explored from historical perspectives by comparing
similar past arrangements with the current ones. The main purpose of this article
is to explore the experiences of constitutional adjudication by parliaments in
France before 1946, Brazil before 1891 and contemporary China with a view to
drawing some lessons to Ethiopia.
Historically, France and Brazil have experienced failure in such arrangement
which led to other institutional arrangements: France to Conseil Constitutionnel
and Brazil to the Supreme Court. The contemporary constitutional arrangement
7 Chi Mgbako et al (2008), “Silencing the Ethiopian Cour ts: Non-Judicial Constitutional
Review and its Impact o n Human Rights”, Fordham International Law Journa l, Vol. 32,
Issue 1, pp. 259- 297. Available at <http://ir.lawnet.fordham.edu/ilj/vol32/iss1/15/ >
8 See for instance, Cheng Xueyang (2014), “Institutional Developments, Academic Debates
and Legal Practices of the Constitutional Review in China: 2000 -2013”, Fr ontiers of Law
in China, 9: pp. 636-656. Available at <http://acad emic.hep.com.cn/flc/EN/10.3868/s050-
003-014-0040-1>; Guobin Zhu (2010), “Constitutional Review in China: An
Unaccomplished Project or a Mirage?”, Suffolk University Law Review, 43: pp. 593-624.
9 See for instance, Assefa Fiseha (2007), “Constitutional Adjudication in Ethiopia: Exploring
the Experience of the House of Federation”, Mizan Law Review, Vol. 1, No. 1 pp. 1-32;
Getachew Assefa (2010), “All About Words: Discovering the Intention of the Makers of
the Ethiopian Constitution on the Scope and Meaning of Constitutional Interpretation”,
Journa l of Ethiopian Law, Vol. 24, No. 2; Tsegaye Regassa (2009), “Making Legal Sense
of Human Rights: The Judicial Role in Protecting Hu man Rights in Et hiopia”, Mizan Law
Review, Vol. 3, No. 2, pp. 288-330; Takele Soboka (2011), “Judicial Referral of
Constitutional Disputes in Ethiopia: Fro m P ractice to Theory”, African J ournal of
Interna tional and Compara tive Law, Edinburgh University Press, Vol. 19, No.1.