Application of the Bill of Rights

Direct Application of the Bill of Rights

While interpreting legislation, one has to promote the values incorporated in the Bill of Rights because it has to be assumed that the legislature intends to further these values when passing legislation. Such interpretation shall be the rule, unless it can be established otherwise by showing that the legislation is genuinely ambiguous or unclear.

However, the principle that constitutional issues should be avoided is not an absolute rule. Where the violation of the Constitution is clear and directly relevant to the matter, and there is no apparent alternative form of ordinary relief, it is not necessary to waste time and effort by seeking a non-constitutional way of resolving a dispute. This will often be the case when the constitutionality of a statutory provision is placed in dispute because, apart from a reading down, there are no other remedies available to a litigant affected by the provision.

Where the consistency of a law or conduct is challenged under the Ethiopian Constitution, the court or a party to a dispute has to bring it to the attention of the Council of Constitutional Inquiry, which will either remand the case to the competent court where it has found no ground for constitutional interpretation or submit its findings to the House of Federation for final deliberation. The latter has the power to interpret the Constitution and decide upon a constitutional dispute submitted to it by the Council of Constitutional Inquiry.

This, however, should not be misunderstood as meaning that no one else can interpret the Constitution, including the Bill of Rights. The interpretation and implementation of the Constitution is a daily occurrence that goes on throughout the system. The House of Federation is, however, the ultimate authoritative
interpreter of the Constitution.

Where the House of Federation finds the law or conduct to be inconsistent with the Bill of Rights, it will declare the law or conduct constitutionally invalid. Such kind of constitutional remedy is only available in the case of direct application of the Bill of Rights and not in the case of indirect application. However, whenever the Bill of Rights merely applies indirectly to a dispute, ordinary courts and not the House of Federation is primarily responsible for the application and interpretation of the Bill of Rights.

Most federal systems around the world give the mandate of constitutional interpretation to a Constitutional Court or the Federal Supreme Court, thus making it a purely legal matter. Ethiopia has, however, adopted a system that gives such mandate to a political organ, thus making the process of constitutional interpretation a political matter.

Nevertheless, it is argued that the constitutional interpretation is not purely a political matter as the Council of Constitutional Inquiry mostly composed of legal experts of high standing, headed by the Chief Justice of the Federal Supreme Court is to examine constitutional issues and render advice to the House of Federation before the latter makes its final decision.

Indirect Application of the Bill of Rights

The Constitution holds that all laws and conducts shall be in consistency with the Bill of Rights. In addition, the Bill of Rights incorporates a set of values that have to be respected during interpretation, application and development of legislation and statutory laws. Direct and indirect applications of the Bill of Rights in legal disputes have, each, their own procedural rules relating to standing and remedies.

The principle has a number of consequences. On the one hand, even when the Bill of Rights applies directly, a court must apply the provision of ordinary law to resolve the legal dispute, especially in so far as the ordinary law is intended to give effect to the rights contained in the Bill of Rights. Recent legislation or amendments, such as the Amended Family Law of Addis Ababa and Dire Dawa Administration is intended to implement the relevant provisions in the Bill of Rights, including arts.34 and 35, which provide for marital, personal and family rights, and rights of women respectively. The amended provisions must first be applied and if necessary interpreted generously to give effect to the Bill of Rights, before a direct application is considered. On the other hand, when the Bill of Rights is directly applied in disputes governed by legislation, the implementation of the latter should first be challenged before the provisions of the legislation itself.

The Reach of the Bill of Rights

To determine when the Bill of Rights may be directly applied to law and conduct, it is important to consider who the beneficiaries of the Bill of Rights are, and who is bound by it. This is known as ‘the reach of the Bill of Rights’.

There are, at least, two elements, which determines the ‘reach’ or the direct application of the Bill of Rights. The first relates to beneficiaries, the second to the duties imposed by the Bill of Rights. The first element is the least difficult to determine as most of the rights in the Bill of Rights have universal application, in the sense that they are for the benefit of ‘everyone’.

Only in few instances are rights restricted in their application to a particular class of beneficiary such as ‘citizens’ or ‘children’ or ‘women’. The question
whether certain rights benefit juristic persons does present few difficulties, but since this research focus on the enforcement of human rights, we shall not endeavor in this particular discussion in depth.

To determine the duties imposed by the Bill of Rights is more difficult. Who is bound by the Bill of Rights? Which persons or institutions have direct duties imposed on them by the Bill of Rights? This question further raises two questions of its own. What types of conduct may be challenged for being inconsistent with the Bill of Rights? And similarly what forms of law may be challenged? The latter two questions are concerned with the extent to which the Bill of Rights operates directly on the ‘horizontal’ level, that is, in respect of the relations between private individuals.

Traditionally, a Bill of Rights regulates only the relationship between the individual and the state; i.e., vertical application of the Bill of Rights. Since the State is more powerful than the individual person, and is endowed with ‘state authority’, a bill of rights is adopted to protect the individual against abuse of the state’s powers.

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