LEGISLATIVE CONSTITUTIONALITY OF THE FEDERAL PARLIAMENT ON SILENT MATTERS UNDER THE FDRE
CONSTITUTION: BASED ON EMPIRICAL APPRAISAL OF LAWS

Abstract:

Looking in retrospection the modalities adopted under the FDRE Constitution in establishing lawmaking authority appears defective in two fundamental aspects. The feature of constrained parliamentOlY systems, which primarily focuses on strong judicial independence to offset the odds of separation of power i.e. the fusion of executive and legislative organs, does not exist in ( the constitution. The idea of parliamentary supremacy in constrained system is locked between the supremacy of the constitution and the valid enforceable limitations upon lawmaking. It constrains the exercise of power through strong judiciary with its exclusive checks to defend the constitution and eriforce the basic principles which mostly are dubbed as entrenchment, justiciability and supremacy. The other essential defect goes to the manner employed in the division of legislative power between the federal and regional governments. In this respect unlike most of the constitutions of federations that leave reserve clause upon the states while the federal government holding only enumerated powers, the FDRE constitution is short of elastic clause that generally allows lawmaking authority upon the federal government. Often dubbed as implied power doctrine, such elastic clauses is necessary in federations to constitutionalize in order to render the federal laws legitimate in the event it becomes compulsury 10 exercise a particular matter which does not belong in its enumerated jurisdictions. Nevertheless, regardless of the lacuna and without unequivocal constitutional authority the HP R had practically jumped in such areas via several legislations. The empirical examination of certain laws in force indicate a number of matters which need constitutional backs are simply left to the federal government to determine via ordinary laws. Besides, the legislative exercise is not only uneasy to enact in the form of parliamentary laws but also no extraordinary procedure has been followed. The practice evidently was reinforced the HP R authority can rightly goes beyond the text of the l constitution to confer additional competencies upon itself with no threat on its constitutionality or the parliament is the maker and breaker of the institutions for which the constitution entrenches. The specific legislations tabled for empirical appraisal have significantly shaped the exercise of political power both qua constitutions in their scope and in lieu of the constitution in terms of the mailers engulfed on the substance of federal powers. In this particular foci those laws regarding the head of states of the republic, systems of federal intervention into the regions, intergovernmental relations (IGR), competency of the second chamber, federal power over theautonomy of the city of Addis Ababa, and functional independence of the judicial organ etc can remarkably be high lightened as the points of contest. The legislations mentioned with their other kin exclusively stands on Art 55(1) qua constitutional source of authority to mark legislative legitimacy on the part of the parliament. Unfortunately if it is not to help as a safe passage to bond the acts to conform to the constitution, the examined laws tell different context both in scope and content. Neither the specific authority can be attached with the enumerated jurisdiction of the federal government nor the constitution puts an inference on the possibility to provide legal Fameworks in the sense they actual appear now. At times they resemble restrictive lawmaking tendencies rather than the underlying principle for a more protective approach during enforcement. In fact it is not a surprise the varieties of these legislations would have welcomed serious constitutionality tests for if it had been in other jurisdictions who adopt strong independent constitutional adjudicative organ. Otherwise it would have faced ostensible recourses for valid constitutional amendment so long as the laws had brought something new to the actual text of the constitution.

By Abrham Yohannes

Abrham Yohannes Hailu Licensed Lawyer & Consultant

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