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Constitutional loyalty: Is it a must for the judiciary?

Constitutional loyalty: Is it a must for the judiciary?

Two weeks ago, the House of Peoples' Representatives (HPR) passed a landmark decision to dismiss three judges, one from the Federal First Instance Court and two from the Federal High Court, for an alleged breach of the code of conduct for judges. However, the ground of dismissal for one of the high court judges, Gizachew Mitiku, which is an alleged disloyalty to the FDRE constitution, has sparked quite the controversy among legal practitioners, writes Solomon Goshu.

Recently, in 2015, a Spanish judge, Santiago Vidal, was sanctioned because he drafted a constitution for one of the Autonomous Communities in Spain, namely Catalonia and made speech in pro-secession public events. While the judge posited that his exercise of freedom of expression and freedom of ideology should be upheld over and above constitutional loyalty, Spain’s General Council of Judicial Power has suspended the judge for three years stating that constitutional loyalty should prevail over freedom of expression. However, the council was convinced that the judge far surpassed the stage of expression when he drafted a constitution for a potentially secessionist region. Allegedly, he contravened Art. 127 of the Spanish Constitution that prohibits judges from belonging to any political party or involving in political activities that may compromise judicial independence.

In somewhat similar circumstances, recently the House of Peoples’ Representatives (HPR) relieved a federal judge from his responsibility for his lack of “loyalty to the constitution” based on the recommendation of the Federal Judicial Administration Council. Judge Gizachew Mitiku Belete’s comments on different meetings which are critical of the government and particularly the ones which suggest that certain provisions of the Federal Democratic Republic of Ethiopia (FDRE) Constitution be amended were considered by both the Council and HPR as “a political activity” in violation of his judicial duty.

Soon after the HPR approved the recommendation of the Council to relieve the judge of his duties, the issue blew up as one of the most controversial issues in Ethiopian judicial system. Some questioned the constitutionality of the decision. Others are concerned about the implications on the judiciary and the larger public. The government insists the decision is important to ensure rule of law in the country and shield the independence of the judiciary against political bias. And yet, those who have commented on the matter appear to be on the opposite side.

Judge or politician

In a parliamentary form of governance, the political influences of the parliament and the executive branches of government are quite clear. To the contrary, the judiciary is expected to be free from politics and conduct its day-to-day activities without the influence and interference of the political organs. As a result, the decision of the judiciary is based on the rational and logical interpretation of the letter of the law. Its legitimacy depends on the quality of its reasoning unlike other organs which considers political calculations in their decision-making and support of the electorate. In short, it is expected to serve justice based on public interest.

In line with this thought, Article 79 of the FDRE Constitution outlines ways of ensuring the independence of the judiciary from any organ including politicians. Article 79 (2) of the Constitution states that courts of any level shall be free from any interference of influence of any governmental body, government official or from any other source. Similarly Article 79 (3) reads that judges shall exercise their functions in full independence and shall be directed solely by the law.

The decision to remove Gizachew from his duty indicates that his remarks are against these basic principles of judicial independence. The minutes of the Administrative Council and the recommendations state that the Council has investigated the alleged disciplinary breaches by Judge Gizachew thoroughly. In addition to four witnesses, the accused himself participated in the investigation process. According to the council, the first breach committed by the judge was related with the November 2014 meeting of stakeholders of the justice sector in Adama to discuss the draft Code of Conduct of Judges. In the meeting, Gizachew reflected on the issue of whether a judge can have a reservation on the Constitution or not. He argued on the occasion that a judge can still express reservation on the constitution and not jeopardize its judicial duties. Gizachew was also reported to have expressed this view in various other platforms adding that he has some reservations on some of the provisions of the Constitution.

The second breach is related with the summer 2014 training held at the Parliament where he allegedly commented that Ethiopia is not a member of the International Criminal Court (ICC) because the leadership at the helm of the government violates human rights. He is also accused of expressing that the government was not held accountable for the post-2005 violence as many people were killed to keep the interest of one ethnic group. Three of the four witnesses of the Council explained that the judge is guilty of the said allegations. The fourth one, however, said that the remarks were voiced in the meetings to clarify the matter in good faith.

While the accused denied the second allegation altogether, he defends his view arguing that reservations are not necessarily in contradiction to judicial duties. “The Constitution has an amendment procedure. I believe that individuals with professional capacity can be judges even if they have reservations to the Constitution,” he said. In relation to the second alleged breach, Gizachew said that even if he believes that Ethiopia’s membership to ICC is advantageous to the country, he never singled out one ethnic group to benefit from the human rights violations. “I only asked for explanation as it is said that the military is dominated by one ethnic group. Moreover, I explained that some government institutions violate human rights and it has to be corrected,” he added.

Against Gizachew’s objection, the Council and the Parliament decided unanimously that his opinion is in violation of professional code of conduct. According to the Constitution, no judge shall be removed from his/her duties before he reaches the retirement age determined by law except when the Judicial Administration Council decides to remove him/her for violation of disciplinary rules or on grounds of gross incompetence or inefficiency; when the Judicial Administration Council decides that a judge can no longer carry out his responsibilities on account of illness; and when the HPR or the concerned State Council approves by a majority vote the decisions of the Administrative Council.

Backed by these legal provisions, the Federal Judicial Administration Council made its decision. The Council has 11 members: the President of the Federal Supreme Court, the Vice President of the Federal Supreme Court, three members of the House, the Minister of Justice, the President of the Federal High Court, the President of the Federal First Instance Court, a judge selected by all the Federal Judges, a lawyer appointed by the Council from those practicing in the Federal Courts, law academic appointed by the Council from a recognized higher educational institution, and a distinguished citizen appointed by the Council.

The powers and duties of the Council include suspending a judge until
the decision is approved by the HPR. It is by this procedure that the Council passed the initial decision. It is the opinion of the Council that judge Gizachew has committed a breach of discipline resulting in his dismissal. And his breach is related with lack of total loyalty to the Constitution.

In fact, under Article 11 (1) (d) of the Amended Federal Judicial Administration Council Establishment Proclamation No. 684/2010, it is stated that to be appointed as a federal judge, an individual should be loyal to the Constitution; confirms in writing that he is loyal to the Constitution and has never participated directly or indirectly in activities that violate the Constitution.

Endalikachew Geremew, a constitutional law expert and legal practitioner, argues that the decision is against constitutional procedures since he points out that the Constitution lists exhaustive grounds to remove a judge from his tenure as per Article 79 (4) and lack of constitutional loyalty is not one of them. Thus, for him, except illness, judges’ disciplinary rules and professional incompetency and inefficiency are related with the official judicial duty. Furthermore, the Federal Judicial Administration Council proclamation itself only mentions constitutional loyalty as a requirement to recruit new judges; not to dismiss. Thus, he argues it should not have been applicable for Gizachew. “Even if it was stated as additional ground for removal, as long as it contradicts the Constitution, it will still be unenforceable,” he explains.

Asmelash Woldesellassie, MP and member of the Council, contends that even if citizens can have reservations on the Constitution, when it comes to judges, their loyalty to the Constitution has to be 100 percent. “Gizachew is saying that a judge can criticize the Constitution. He was speaking about amending the Constitution repeatedly. For me, with this type of opinion, a person should be a politician rather than a judge,” he remarked.

While reminding that the law prohibits judges from becoming members of political organizations and participating in elections, Asmelash argued that the prohibition comes from the nature of the judicial duty. As the judiciary plays a key role in ensuring rule of law in the country, he opines, judges with political stand are impediments to such a task.

According to the Code of Conduct for US Judges, judges should abstain from political activities. For Yared Legesse (SJD), a constitutional law expert and practitioner, that should also be the case for Ethiopia. However, he is of the view that the remark of judge Gizachew has nothing to do with political activity. “Gizachew simply contended that there are certain parts of the Constitution that should be amended in accordance with the amendment formulae of the very Constitution itself. The judge did not advocate for an unconstitutional change of the Constitution as some people may have done in the past, Yared argued. According to him, totally, dismissing the Constitution, which is the supreme law of the land, is so unwarranted for a judge since the judge is expected to function within the general framework of the Constitution. However, advocating for a better, timely and more democratic constitution can even be considered a civic duty of a judge.

“Blind adherence to a constitution is neither patriotic nor civilized,” Yared argued further. In his opinion, the dismissal on the basis of holding a dissenting view is anti-Constitutional by itself. “He has not engaged in any conduct other than exercising his freedom of expression,” Yared argues. 

For Asmelash, what Gizachew did was beyond exercising his freedom of expression. “If we tolerate the judiciary that fall under the influence of anarchism in the name of freedom of expression, we will never have rule of law in this country,” he told MPs.

For Yared, judges are not expected to totally avoid politics. He argues that judges’ right of political participation cannot be excessively curtailed just because they happen to be judges. While admitting that judges can neither become members of political parties, vote for candidates and political parties to maintain judicial impartiality, Yared contends that judges are not totally apolitical beings and can entertain political ideas to a limited extent which prudence counsels on a case-by-case basis. For instance, he mentions constitutional discourse as a legitimate and minimal political participation that should not be denied to judges.

Yared argues that, for a stronger reason, this diversity of opinion should also be allowed for jurists of the country. He says that the government should not and cannot legitimately put a cap and censorship on thinking and speaking. “What if, for instance, a judge directs his/her polemic against state ownership of land or secession which is a dividing line between the EPRDF and most opposition political parties?” Yared asks. This seems a separate issue in light of prohibition of political activity, he says.

Furthermore, Yared expresses that a judge’s voice of dissent on constitutional text is one giant stride toward constitutionalism and should be encouraged rather than punished. “The measure taken tends to silence judges and deprive judges of a very important quality, namely inquisitiveness and judiciousness,” Yared adds.

It is also interesting to note that all of the remarks allegedly made by judge Gizachew had been voiced outside of his official duties, both experts argued. The evidence presented for the dismissal relates to the opinion expressed by the judge outside of the courtroom. When members of the HPR were discussing the proposed decision of the Council, one member was curious why opinions and comments of the judge are considered breaches of his judicial duty. This member may not have changed the fate of the judge on the day. However, his concerns have been shared by many.

“The decision was not only unconstitutional but also a stubborn rejection of history. The Constitution is a legal document and not a religious book. It is a purely human artifact and any otherwise view of the Constitution renders it moribund instead of dynamic,” says Yared.

Asmelash defends that to argue that to violate the Code of Conducts of Judges opinion does not suffice but official action in one’s duty is required is not in line with both the Constitution and the proclamation on Federal Judicial Administration Council.

Loyalty or respect

Judges take oath to uphold the Constitution and the law. According to Article 9 (2) of the Constitution, judges have the duty to ensure observance of the Constitution and to obey it. As far as Asmelash is concerned this means absolute constitutional loyalty. He contends that a judge who is not loyal to the Constitution cannot respect it.

Gizachew’s statements written as responses to the alleged misconduct to the Council argues that as long as he respects the Constitution and the laws, policies, and strategies made based on the Constitution, his loyalty to the Constitution should not be questioned.

In a similar vein, Endalikachew asserts that a judge’s power and function is limited to respecting and enforcing the Constitution. So, if one judge happens to disagree on certain provisions from the Constitution, respecting it is enough. “After all, the Constitution is a legal and political document. The choices made in different parts of the Constitution were political decisions. For instance, entrusting the power of interpreting the Constitution to the HoF rather than the regular judiciary is a political decision. A judge may have reservations on some of these decisions. I see no wrong in this,” he elaborates.

Endalikachew also highlights that being loyal to the Constitution does not mean being loyal to the constitutional order as the latter is consisted of the Constitution, other laws, administrative issues and the politics. He indicates that the likelihood of judges having reservations on how the constitutional order is going is high when compared with having reservations on the Constitution. “The problem in Ethiopia is reservations on the constitutional order are taken as reservations on the Constitution,” he says.

Loyalty to the Constitution or EPRDF

The decision made by the seven members of Council in attendant in July 20, 2015 argued even if a judge could not have any difference with the Constitution, at any platform, and has to have unquestioned loyalty to it, that was what was at stake in case of judge Gizachew as evidenced from his remarks in few occasions.

Indeed, constitutional loyalty is always considered as the virtuous possession for the health of any country. Mainly, such an attachment is justified with the unique features of constitutions. Unlike other ordinary laws, constitutions set grand norms as they are supreme laws in each country. Thus, they serve both as a national symbol and as the basis of the legal system.  Thus, when the chief enforcers are not loyal to the Constitution, no doubt they would create some discomfort.

However, constitutional experts like Jack M. Balkin, observes that constitutional loyalty is not always available because the Constitution exists in a political system that is certainly not completely just and may in fact be very unjust. The argument is that the Constitution does not deserve our loyalty because the Constitution is either unjust or permits and gives legal sanction to serious injustices. “In such instances, when we engage in the practice of constitutional loyalty,” the argument goes, “we further and help legitimate those injustices”. He also argues that loyalty should be offered only to those practices and institutions that are just; it should not be extended to those that are wicked.

The Ethiopian context offers a unique perspective. On the one hand, the ruling party is accused of considering the Constitution as a sacred document not to be debated on, argued against or maintain reservation about. Opining against the provisions and premises of constitutional provisions is widely discouraged. This is so in the presence of a clear constitutional amendment procedure in the Constitution. On the other hand, the Constitution is dubbed by many as controversial and lacking original legitimacy. A number of commentators consider the Constitution as “one party’s political program” than a document that reflects the common ideals of the Ethiopians.

For this reason, in the Ethiopian context, loyalty to the Constitution is misconstrued as loyalty to the EPRDF by some. To some analysts, there is no national consensus on the basic rule of the game in the country. Critics argue that the Constitution has become a political instrument, quoted only when the ruling elite wants to discredit, imprison and accuse opponents. As a result, deep fault lines persist between EPRDF and its supporters and those who question some of their approaches.

While emphasizing the fact that Ethiopia’s commitment in recognizing its ethno-linguistic diversity both as a matter of constitutional text and political practice is appreciable, Yared is of the opinion that an equally important issue, i.e., recognition of the diversity of opinion and decentralization of thought that should freely be allowed to compete, survive and thrive in the market place of ideas, is missing in practice.

Whereas some focused on the premises behind the provisions, others argued against specific provisions of FDRE constitution. Article 8 (on sovereignty), Article 39 (the right to secession), and Article 40 (state ownership of land) are some of controversial provisions in the constitutional text. Many suggest constitutional amendment as a way out. That is why removing a judge for suggesting a constitutional amendment surprised many in the legal community.

Gedion Timothewos (SJD), a constitutional lawyer, in his piece ‘The Precarious Future of the Ethiopian Constitution’ questioned if the FDRE Constitution could survive its authors, mainly EPRDF. In fact, in the constitutional history of modern Ethiopia, no constitution has survived its authors. Since 1930, three constitutions have been officially promulgated, in addition to the current constitution. None of these constitutions has survived their authors. Given this widely held view that suggests FDRE constitutions is due for a much needed amendment, legal experts and political commentators, feel that the decision to dismiss Gizachew for reflecting such views is highly uncalled for.   

Equally important, the decision to remove Gazachew from his duty is feared to further erode the already weakened status of the judiciary in the country. While highlighting the fact that the judiciary has a crucial role in resolving disputes impartially, ensuring the rule of law, and in setting limits to power, Assefa Fiseha (PhD), the leading federalism expert in the country and currently head of the Institute of Federal Studies at Addis Ababa University, observes that the current developments in Ethiopia indicates to the opposite direction. This is attributed to many internal and external factors.

Internal factors include gaps in human resources, infrastructure and corruption. However, external factors are the more serious ones. Lack of clarity in identifying the jurisdictions between the judiciary and the House of Federation (HoF), an organ entrusted to interpret the Constitution, is one of them. As a result, the role of the judiciary to engage itself more directly in constitutional matters is yet to be properly resolved. Another factor is the tendency of the legislature to issue ouster clauses that take away power from courts, placing powers instead in quasi-judicial bodies within the executive. Above all, the interference of the political branches of the state on the judiciary is the one that is affecting the performance of the judiciary. “The judiciary continues to suffer from the political influences; and its independence yet to be established,” Assefa states.

Even by the government’s own admission, corruption and rent-seeking behavior are highly affecting the performance of the judiciary. For this reason, the recent good governance movement of the government includes a coordinated plan to clear the judiciary from its serious problems.

It is with this context that the parliament approves the recommendations of the Council to put an end to Gizachew’s tenure as judge. “I believe EPRDF sincerely intends to resolve problems of good governance rampant in key government services including the judiciary,” says an anonymous expert. “The decision to remove Gizachew from his duty just because he has reservations on the Constitution is a backlash on such efforts,” he explained.

“One thing that I learn from my experiences is that not all members of EPRDF are forward looking. The problem is those EPRDF members with the right attitude confronts those who are creating a mess behind closed doors. Unless such a practice becomes a public exercise the decision of some hardliners may be perceived as the official position of the ruling party,” he adds. However, for other observers, EPRDF’s talk of radical change is not a serious collective engagement with individual distractors here and there. That is why the case of Gizachew is considered by many as a more shocking example of the jarring disconnect between EPRDF’s vision of cleaning up the justice system and the sordid reality it is facing.

“Instead of widening and broadening the scope of constitutional tolerance for dissident voices the choice to use any means to beat people back into a preformed shape is preposterous. In the long haul, rather than frontally attacking outside-the-box ideas, letting the marketplace of ideas sift out ‘unruly’ opinions would organically strengthen and reinforce the Constitution. Then and only then can we claim to have an organic and vibrant constitution that has weathered the storm and stood the great test of time,” contends Yared.

In sum, for Yared, the removal of the judge on account of his belief and expression contains five adverse constitutional ramifications that may sow the seed of constitutional discord. One, it violates the individual’s right to freedom of expression. Two, the removal stifles intellectual freedom that is already in such a short supply in the country. Three, the removal also violates the judge’s freedom of belief. Four, the removal of Gizachew comes perilously close to uprooting the fledgling and floundering seedling of constitutionalism in Ethiopia. Five, the removal hinges on the rights of political participation of judges.

For the anonymous expert, the decision rather shows the institutional strength and autonomy in the country. “In an open meeting organized by the government itself, if you punish a judge for expressing his view, the message is clear. The government is saying if you are not thinking like me, you don’t serve your country,” he explains.

Similarly, Endalikachew mentions that rather than the decision to remove Gizachew, the reasons given to it will have adverse impact on the judiciary and the political atmosphere of the country. “The deterrent effect on judges will be higher. It will have a chilling effect. The message is clear. Do not question the Constitution. Be loyal to the political system than the Constitution,” he concludes.