Constitutional Adjudication by Parliaments: Lessons from Comparative Experience

Author:Belachew Girma
Position:Belachew Girma Degefie, LL.B (Bahir Dar University), LL.M in Constitutional and Public Law (Addis Ababa University), LL.M in Comparative Constitutional Law (Central European University); currently Attorney and Consultant at Law. Email: girma.belachew@yahoo.com
Pages:29-70
SUMMARY

This article explores historical experiences in France and Brazil and the contemporary constitutional set-up in China where parliaments are empowered to adjudicate constitutional issues. It also identifies the lessons thereof for the constitutional design in Ethiopia. Comparison among three legal regimes has been made with regard to the rationales and contexts under which legislative or non-legisl... (see full summary)

 
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Constitutional Adjudication by
Parliaments:
Lessons from Comparative Experience
Belachew Girma
Abstract
This article explores historical experiences in France and Brazil and the
contemporary constitutional set-up in China where parliaments are empowered to
adjudicate constitutional issues. It also identifies the lessons thereof for the
constitutional design in Ethiopia. Comparison among three legal regimes has been
made with regard to the rationales and contexts under which legislative or non-
legislative parliaments were entrusted with the power of interpreting constitutions.
The experience in France (1799 to 1946), Brazil (1824-1891) and China‟s current
practice in constitutional interpretation are examined. The experiences across time
in different jurisdictions are used to analyze the extent to which (non-)legislative
assemblies are appropriate organs to adjudicate constitutional issues. The
Constitution of Ethiopia is expected to take lessons from the difficulties
encountered from the experiences of France, Brazil and China and resort to other
institutional choices for constitutional adjudication.
Key terms
Constitutional adjudication · Constitutional courts · Parliament · House of
Federation
DOI http://dx.doi.org/10.4314/mlr.v12i1.2
Received: 27 February 2018 Accepted: 7 September 2018
This article is licensed under a Creative Commons Attribution-NonCommercial-
NoDerivs (CC BY-NC-ND)
Belachew Girma Degefie, LL.B (Bahir Dar University), LL.M in Constitutional and
Public Law (Addis Ababa University), LL.M in Comparative Constitutional Law (Central
European University); currently Attorney and Consultant at Law.
Email: girma.belachew@yahoo.com
Frequently used acronyms
CCI
Council of Constitutional Inquiry
CPC
Communist Party of China
HoF
House of Federation
HoPR
House of Peoples‟ Representatives
NPC
National People's Congress (China)
NPCSC
National People's Congress Standing Committee (China)
NNPs
Nations, Nationalities and Peoples
30 MIZAN LAW REVIEW, Vol. 12, No.1 September 2018
Introduction
The current Ethiopian Constitution adopts ethnic federalism by accommodating
diversity as „building bricks‟ of the federal system.1 One third of the
constitutional provisions deal with human rights including socio-economic and
environmental rights, and it gives due attention to the rights of women, child
rights etc. The Constitution declares that the federation is established by the
„free‟ agreement2 of Nations, Nationalities and Peoples (hereinafter the
„NNPs‟); and it also declares that Sovereign political power resides in them.
The Constitution was, however, criticized because of its making process and
content. Many scholars have contested its legitimacy arguing that the making
process did not include significant political actors, the discussions were more of
educational rather than taking inputs from the population, and the whole process
was dominated by the Ethiopian Peoples' Revolutionary Democratic Front
(hereinafter „EPRDF‟) and hence it lacks original legitimacy.3 Others also
criticized it on the ground that the federal structure tilts more towards the „self-
rule‟ rather than the „shared rule4 considering it as a recipe for disaster. The
existence of highly centralized political party which has dominated the political
sphere since the promulgation of the Constitution was also considered as
making the federal arrangement „dysfunctional‟.5
Absence of strong form of constitutional review which keeps government
organs within their constitutional limits was also another criticism. The
Constitution empowers the House of Federation (hereinafter „the HoF‟), assisted
by the Council of Constitutional Inquiry (hereinafter „the CCI‟), as an organ
empowered to interpret the Constitution. Some criticize this mechanism of
constitutional adjudication as highly politicized indicating „absence of effective
domestic safeguards against regression into rule by law6 rather than rule of law.
Others criticize it stating that it silences ordinary courts from protecting human
1 See generally Assefa Fiseha (2006), Feder alism and the Accommodation of Diversity in
Ethiopia: Compara tive Study, Wolf Legal Publishers, The Netherlands.
2 The Constitution of the Federal Democratic Republic of Ethiopia, 1995, Federal Negarit
Gazeta, Proc. No. 1/1995, No.1, 1st year 1995,P aragraph 1 of the Preamble.
3 See for instance, Tsega ye Regassa (2010), “The Making and legitimacy of the Ethiopian
Constitution: Towards Bridging the gap between Constitutional Design and Constitutional
Practice”, Africa F ocus, Volume 10, No.1, pp. 85-118. Available at:
<www.gap.ugent.be/africafocus/pdf/vol23_1_making.pdf>
4 See for instance, Assefa Fiseha, supra note 1, pp. 297-300.
5 See for instance, Aberra Degefa (2005), “The Scope of Rights of Natio nal Minorities under
the Constitution of FDRE”, Series on Ethiopia n Constitutional Law, Volume 1.
6 Adem K. Abebe (2012), “Rule by law in Ethiopia: Rendering constitutional limits on
government power nonsensical”, CGHR Working Paper 1, Cambridge: University of
Cambridge Centre of Governance and Human Rights, pp. 15-16. Available at:
<https://www.repository.cam.ac.uk/handle/1810/245111>
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.
Available at
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1664949&download=yes>
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.

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