The Right to Access to Justice of Religious Workers. Revisiting the Principle of Secularism

Table of Contents

ACKNOWLEDGMENT

ACRONYM

ABSTRACT

CHAPTER ONE
1. Introduction
1.1. Background of the Study
1.2. Statement of the problem
1.3 Objective of the study
1.3.1 General objective
1.3.2 Specific objective
1.4 Research Questions
1.5 Methodology of the study
1.5.1 Research Method
1.5.2 Source of Data
1.5.3 Data Collection Techniques
1.5.4 Data Analysis and Interpretation
1.6 Significance of the study
1.7 Scope of the study
1.8 Limitations of the Study
1.9 Organization of the paper

CHAPTER TWO
2. The Right to Access to Justice and Principle of secularism: An overview
2.1. Part One: Access to Justice; Concept, Its Human Right Perspective and the Constitutional Concern
2.1.1. Access to Justice: Concept
2.1.2. Access to Justice: The Human Right Perspective
2.1.3. Access to Justice: the Ethiopian constitution/ A Constitutional Concern/
2.2 The labor proclamation no. 377/2003 and the Federal Cassation Court Interpretation of Article 3(3) (b): Limiting the Right to Access to Justice of Religious Employees
2.3. Part Two: Secularism: Conceptual Framework
2.3.1. Definition and Concept of Secularism
2.3.2. The History of Secularism
2.3.3. The Purpose of Secularism
2.3.4. Secularism and FDRE constitution
2.4. Part Three: Nexus between the Right to Access to Justice versus Principle of Secularism
2.4.2. Nexus between Secularism and Access to Justice: Principle/Doctrine/ Consideration

CHAPTER THREE
Case Description and Comment
3.1. Introduction
3.2. Part I: Comment and Analysis of Cases:
3.2.1. Background of the Case
3.2.2 Fact of the Case/causes of Action/
3.2.3. Lower Courts Holding
3.2.4. The Applicants Argument
3.2.5. The Respondents Argument
3.2.6. Basic Legal Issues under Question
3.2.7. The Supreme Court’s Interpretation of art 3(3) of Proclamation no-377/2003
3.3. Comment and Analysis of the case [1]: Regarding the Power of Federal Cassation Courts and the Principle of Stare-decisis in Ethiopia
3.4. Comment and Analysis of the Case [1] in Light of the Principles: The principle of Ministerial Exception, Principle of Civil Right, Church Autonomy doctrine, Neutral Principles of law, Religious Question/Motive/ doctrine, Gap-filling Role approaches.
3.5. Analysis on Case [2]
3.6. Part II: Interviews and Authorities Argument

CHAPTER FOUR
4. CONCLUSION AND RECOMMENDATION
4.1. Conclusion
4.2. Recommendation

BIBLIOGRAPHY

ACKNOWLEDGMENT

First and above all we would like to praise the Almighty God and his Mother St. Virgin Marry for their help in our holistic life. It is through the help of Almighty God and his Mother St. Virgin Marry we accomplish this research with love, respect, endurance, politeness…as well.

We would like to express our sincere gratitude to our advisor Mr. Birhan Siru, for his critical comments, suggestions, and advices from the idea of the proposal up to this final deed to make it shipshape.

Our special thanks go to our respective families’ for their ongoing financial and moral supports throughout our 17 years long academic journey.

We also need to appreciate the very candid critical insights and generosity of our classmates and other law school fellow friends for lending their personal computers throughout the whole process of our study. Oh! Saido you have a special place in our heart.

We would also like to thank University of Gondar School of Law Instructors: Instructor Deacon Worku Kassaw, and Amhara Regional state supreme court’s Chief Justice, Deacon Moges, for their willingness to have an interview with us and Wondwossen Wakene(Assistant professor of law) and Mr. Yohannis Yitayih for sharing their views and comments towards the issue. We are also indebted to thank North Gondar diocese legal officer, liqe Syuman G/M., Arada district Mosque sheikhs and protestant church’s pastor in Gondar for their consent to interview with us.

ACRONYM

Abbildung in dieser Leseprobe nicht enthalten

ABSTRACT

This thesis strives to look into the legal and practical challenges that basically arise from the interaction between the right to access to justice and the principle of secularism with particular reference to the employees of the religious organizations. This paper discusses access to justice, its conceptual framework and as a human right under Bill of Rights and its elements under FDRE Constitution. The conceptual notion of secularism and its nexus with the right to access to justice in light of the Case laws and internationally developed principles to regulate the relation of religious organizations with their employees, who provide spiritual function.

This thesis is basically a case study type and therefore it depends on court decision or case laws. And we conduct an interview to substantiate the case analysis method and also use primary as well as secondary data sources and purposive and snow boll sampling technique.

Thus, we found that the employees of religious organizations right to access justice is affected by the undefined principle of secularism and the Federal Supreme Cassation Court’s “hands-off approach” to adjudicate labour disputes within the religious organizations giving precedence to the church autonomy. Though can’t postulate a fully mature one here, some solutions are provided in the recommendatory section. That is applying the religious question doctrine; establishing the religious courts; the legal frameworks that define the extent of secularism are prominent one.

Key words: Secularism, Employees of Religious Organization, Access to justice

CHAPTER ONE

1. Introduction

1.1. Background of the Study

According to the FDRE constitution, art 37 stipulates that everyone has a right to bring a justiciable matter to, and to obtain a decision or judgment by a court of law or any other competent body, with judicial power. This shows that the right to access to justice is given to every person without any distinction and this right can be adjudicated in the regular court of law or any other competent body. This right to access to justice is recognized under UDHR, ICCPR, ICESCR, ACHPR, ECHR, as human right. On the other hand, Art 11/3/ of the FDRE Constitution declares that the state shall not interfere in religious matters and religion shall not interfere in state affairs, commonly known as secularism. Secularism is a concept of separation of state from religion. This is a controversial concept which has no single and universal definition. This is highly related with the right to freedom of religion which is incorporated under the international human right instruments. Under the Ethiopian constitution the principle of secularism is not stipulated in a clear manner.

Even though the FDRE constitution entitles every individual to enjoy the right to access to justice, practically there are technical limitations against this right on employees of the religious organizations on the guise of the principle of secularism. This thesis, accordingly, deals on issues of how the right to access to justice and the principle of secularism are interpreted and balanced in the judicial system under the purview of the FDRE Constitution with a particular reference to disputes involving employees of religious organizations.

1.2. Statement of the problem

This right of access to justice enshrined under UDHR, ICCPR, ICESCR, as a right to get administrative tribunal or judicial remedy when their fundamental rights is violated or restricted. It is also recognized under the FDRE constitution as one of the fundamental rights and freedom in accordance with art 37, provided that “everyone has the right to bring a justifiable matter to, and to obtain a decision or judgment by a court of law or any other competent body with judicial power.”

There exists one of the fundamental principles of the constitution- principle of secularism which requires the separation between the state and religion, as stipulated under article 11, of FDRE constitution. This principle used as a pretext by the judicial body not to try the allegation claimed by workers of religious institutions against their employers. For instance the Federal Cassation Division under Vol. 8, FN. 18419 Hamerework st. Marry church v. Deacon MiredBrianlimits the scope of application of labor law not to apply to the priest (Deacon-church) relationships in spiritual activity for judicial system based on the notion of secularism prescribed under article 11 of the FDRE constitution.

Due to the conditional exclusion stipulated under article 3(3) (b) of labor proclamation and the Cassation bench decision under Volume 8, file Number 18419 that the disputes raised between spiritual workers with the church from the ambit of the ordinary court system and which applicable as precedent to other lower courts, many employees of the religious institutions right to access justice is at stake and their work security, economic interest and social security will also be affected.

Due to this reason we found it necessary to investigate and come up with a decisive proposed solution to ameliorate between the right to access to justice and the notion of secularism in Ethiopia.

1.3 Objective of the study

1.3.1 General objective

- To examine how the right to access to justice of employees of religious organizations are entertained in tandem with the principle of secularism.

1.3.2 Specific objective

- To assess the manner in which workers in their labor relation with the religious institution get a legal protection to enforce their labor right as a human right in the Ethiopian legal system.
- To verify the consistency of access to justice with secularism as prescribed under articles 37 and 11 of the FDRE constitution in respect of the religious institutions employment relationship with their its employees.
- To assess the existence of internal dispute resolution mechanism entertaining the dispute between religious institution and its workers within the religious organizations.
- To show whether the exclusion of workers of religious institutions by Federal Cassation Division bench through the interpretation of article 3(3) (b) of the current labor proclamation is compatible with the right to access to justice of workers.
- To review whether the spiritual workers of religious institutions could be within the ambit of labor law.

1.4 Research Questions

The study attempt to answer the following question:

1. Which legislation regulates the relationship of religious institutions with their workers?
2. Does efficient dispute resolution mechanism is established within the religious institutions?
3. Does the civil courts are legally competent to adjudicate disputes between the religious institutions and its employees?
4. Do the decisions of Courts properly reconcile the right to access to justice and the principle of secularism?
5. How the principle of secularism and the right to access to justice be applied in disputes that involve employees of religious organizations?

1.5 Methodology of the study

1.5.1 Research Method

The research is predominantly case study type. And we also tried to pay attention and make a compression/comparison of our courts jurisprudence with that of foreign case laws focused on how cases are settled in different countries without limiting the right of the religious employees and the autonomy of religious institution.

However to support our reasoning and finding, we use empirical data that will be collected through an interview conducted with some key individuals who has direct relation to the issue at hand such as judges, victim employees, church administrators, priests, and employment & constitutional lawyers. This makes us to deal the issue in detail and enlarge our knowledge. To that effect snowball and purposive sampling technique was employed. This makes us easily access to victims and key informants respectively.

1.5.2 Source of Data

Throughout conducting our research we use both primary and secondary sources.

Primary Sources

The primary data obtained from interviews which we conducted with church administrators, priests’ judges and academicians who have direct or indirect knowledge with the issue. It will be collected through the data gathering formats administrated at individuals for participants’ level and discussions with key information, focus group discussions in order to provide direct or first -hand evidence about our issue.

Secondary Sources

The books on such issue, law journals, articles and different legislation and bylaws will be used as secondary sources. We will also find data from secondary sources such as books and journals written by the experts/professional of the law firm on our topic and different religious books. Here we will use both published and unpublished works as far as it is advantageous for us.

1.5.3 Data Collection Techniques

As we have said above, we will base mainly on qualitative data. In order to collect such data we will employ, key informant interviews, focused group discussion, case analysis.

Case Analysis

We analyze cases decided by the Ethiopia courts of every level in general and federal Supreme Court cassation bench’s interpretation on the issue in particular. Here we also try to correlate and make a comparison with other country court’s decision on the same issues. This helps us to know how cases are solved and to investigate whether courts are giving a fair decision or not.

Key Informants Interviews

Key informant interview will be done with church administrators ( የሰበካ ጉባኤ ኃላፊዎችና የቤተክርስቲያን አስተዳዳሪዎችን ), judges, especially Federal Supreme Court cassation judges and lawyers who are closely related with the issue.

It will be employed by a semi structured interview which is going to allow a new idea to be brought up during the interview as a result of what the interviewee says. It should be done mainly to meet the objective of our research/study.

1.5.4 Data Analysis and Interpretation

Method of Data Analysis

Our work is basically library based and relayed on information that already exists, which requires inferring different laws, journals, books, articles… related to the topic. Despite the fact that our research is case study and concerned on the case, we used empirical data to support ideas we have generated in the study.

For this purpose qualitative method of data analysis was employed. Here the qualitative information obtained from participants during interviews summarized and analyzed thematically. After transcription of the record information, we write it in a note form. And we analyzed it with the case laws, and ideas that we found throughout the research. Finally based on the results of our study, we develop our conclusion and recommendations to solve the problem and to show the lacuna of the law for the protection of rights of religious employees and the autonomy of the religious institutions.

Specifically we concerned on the federal Supreme Court cassation’s decisions since it has a binding effect on the lower courts. It is obvious that currently there are plenty of decisions of federal Supreme Court of cassation in Ethiopia compiled in nineteen volumes. From those plenty of cases decided by this court, first we identified cases that are related to labor/employer-employee relationship. More specifically, we also select cases which were brought to this court between religious institution and their employees. We found 4 cases under volume 8 and 9 which are pertinent to the title. After we study those cases which the federal Supreme Court cassation held on this issue, we select the first case, Hamere Work St. Marry Church v. Deacon MihretBirhan (and six others), decided on May 4.1998 E.c, which is located under volume 8 . This cases is basically an interpretation on art.3 (3) (b) of proclamation no 377/2003 which is used as a precedent in the lower courts starting from the date above. The basic reason which makes us to select this case was the failure of the court to critically examine or make reconciliation on the right to access to justice of religious employees and secularism .

1.6 Significance of the study

This paper attempts to critically examine the applicability of labor proclamation over religious institutions in their employer-employee relationship with their employees, in purview of their right to access to justice. Since this paper assess the right of religious workers access to justice within the notion of secularism, it will pave the way to attain justice which is a human right by itself as well as a means to protect and enforce other human rights. It helps to make reconciliation between the two competing but compatible principles: access to justice and secularism with a modern democratic state. It also may be served as a ground study for further research in the area, may possibly help the judicial machineries and also policy makers to think twice with the aim to protect the right of individuals access to justice within a secular and democratic state.

1.7 Scope of the study

This paper, focus on analysis of the court decisions at Federal and state level on labour disputes, involving suits by religious employees and their religious institutions in relation to their employee-employer relationships.

1.8 Limitations of the Study

Since it is a new area of study, there was absence of abundant studies in our literature review. Lack of adequate time and resources was also the other challenges and limitations of this paper.

Therefore, resources particularly, time, accurate data source, either written or oral and financial incapacity are the basic constraints of our study.

1.9 Organization of the paper

This paper is a case analysis type and it has four chapters. The first chapter is about the research proposal. Chapter two dealt an overview of the literature with respect to access to justice and secularism. This chapter has two parts. In part one deal with the concept, human right perspective as well the constitutional concern in Ethiopia, of the right to access justice. And also a brief discussion is made concerning the labor proclamation no 377/2003, and the Federal cassation court interpretation of article 3/3/b/of this proclamation. Part two, on the other hand the definition, concept, history, approaches including the application of secularism in different countries is covered under this chapter.

Lastly, Part three, the researchers tried to show the nexus between access to justice and secularism based on the court jurisprudence of different countries and the developed approaches. In chapter three, part one, we made analysis of the selected case. Part two the interpretation and analysis interview data and including its findings and conclusion. In chapter four conclusion and recommendation is stated.

CHAPTER TWO

2. The Right to Access to Justice and Principle of secularism: An overview

2.1. Part One: Access to Justice; Concept, Its Human Right Perspective and the Constitutional Concern

2.1.1. Access to Justice: Concept

Before going to discuss the concept, nature and limitations of the right to access to justice first it is better to determine what meant by the term, justice. I found it uneasy to have a commonly understood definition to the term justice. Justice is defined as “the fair and proper administration of laws.”¹ It is concerned with the relation between person especially with fairness in the exchange of good and the fulfillment of contractual obligations. United States Institute of Peace defined Access to justice is as” the ability of people to seek and obtain a remedy through judicial or quasi-judicial institutions of justice for grievances in compliance with human right standards”.²

Access to justice³ has many elements including the following three basic standards:

First, institutional Establishment-it is a premier to achieve access to justice should there exist the legal frame work for the establishment of justice institutions. Secondly, enhancing the physical accessibility of justice institutions is demanded. It is because when justice institutions are physically remote the barriers for justice will be greater especially if transport is poor or unaffordable.⁴ Third, Standing- It is the right to bring a suit before a court of law or other competent bodies. Many claimants are losing this element the capacity to bring action before a court of law and it is this element of access to justice this paper focuses on. It is because to seek the enjoyment of rights it is necessary to have a forum to seek a remedy and ability to stand on that forum. It is a short list to dimensions of access to justice and it has plenty of dimensions. Professor Richard Moorhead, deputy head of Cardiff University's law school, makes the point that access to justice doesn't simply equate to legal aid. Access to justice means being "treated fairly according to the law and if you are not treated fairly being able to get appropriate redress". Access to justice is a fundamental to establishing and maintain rule of law. It enables people to have their voices heard and to exercise their legal rights, deriving from, constitutions, statutes the common law or international instruments. Access to justice is an indispensable factor in prompting, empowerment in securing access to equal human dignity and the social and economic development. The concept of access to justice covers different stages of the process of obtaining a solution to civil or criminal justice problems. It starts with the existence of rights ensured in laws and with awareness and understanding of such rights. It embraces access to dispute resolution mechanism as part of justice institutions that are both judicial (Institutions established by state) and quasi-judicial (e.g. traditional and religious courts and councils of elders). Effective access includes the availability of and access to counsel and representation. It also encompasses the ability of such mechanisms to provide fair impartial and enforceable disputes.

Access to justice is an inherent aspect of the rule of law⁵ and a fundamental requirement of any democratic society. “The Black’s law dictionary defines access to justice as it is more than improving an individual’s access to courts or guaranteeing legal representation⁶. The integrity, independence and impartiality of the judiciary are essential prerequisites for the effective protection of human rights and economic development, mainly to insure equality before courts.⁷ Having said this about the concept and elements of access to justice we need it necessary to view the place of access to justice under the international human right instruments as well as the place under the regional as well as national level.

2.1.2. Access to Justice: The Human Right Perspective

The right to a fair hearing is a norm of international human rights law designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms. Human rights considerations are of increasing relevance to the law governing the conduct of proceedings and to legal conceptions of what amounts to a fair trial or a just decision, all of which are relevant constituents of effective access to justice.

Access to justice is a right recognized under the major international and regional human rights instruments including: the Charter of the United Nations, the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). The core instruments on the issue, the UDHR and the ICCPR, state that everyone has ‘the right to effective remedy against violations of fundamental rights’.

Access to Justice: Under the International Human Right Instruments

UDHR

The Universal Declaration of Human Rights (UDHR) which is the cornerstone of international human rights law under article 8 States that: “Everyone has the right to get an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by any other law”. It provides for an effective remedy for everyone to challenge acts violating the fundamental rights granted him by the constitution or by any other law.

ICCPR

The ICCPR provides “any person whose rights or freedoms as herein recognized are violated shall have an effective remedy...and “any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities or by any other competent authority…”⁸ It entitles “Everyone” in full equality to a fair and public hearing by “an independent and impartial tribunal” in the determination of his rights and obligations and of any criminal charge against him.”⁹ And as it is provided under articles 9, and 14 of ICCPR such a right applies to civil as well as criminal proceeding.

ICESCR

The International Covenant on Economic, Social and Cultural Rights (ICESCR) contains no direct counterpart to Article 2 of the ICCPR, which obligates State parties to provide judicial remedy. However, the ICESCR notes in its preamble that “in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights” which includes “appropriate means of redress, or remedies … and appropriate means of ensuring governmental accountability.”¹⁰

Access to Justice: Under Regional Human Right Instruments

ECHR

Art 6(1) of the European Convention on Human Rights (ECHR): In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. … it entitles every one whose rights and freedoms is violated has a right to challenge an act violating a fundamental right and freedom.

ACHPR

Article 7

1. Every individual shall have the right to have his case heard. This comprises:

(a) the right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws, regulation and customs in force;
(b) the right to be presumed innocent until proved guilty by a competent court or tribunal;
(c) the right to defense, including the right to be defended by counsel of his choice;
(d) the right to be tried within a reasonable time by an impartial court or tribunal.

It apart from access to court contains a right to appeal in order to challenge infringements of human rights.

States ratifying the Covenants agree that they will abide by the rights enshrined in these treaties and work toward respecting, protecting, and fulfilling these obligations domestically through institutional mechanisms. Pursuant to the principle expressed in Article 26 of the Vienna Convention on the Law of Treaties, State parties are required to give effect to their obligations in good faith. Ethiopia is not an exception to this and expected to uphold the right recognized under this human right treaties/UDHR, ICCPR, ACHPR/. Courts have determined that equal access to the courts requires the legal system to be set up in such a way as to ensure that people are not excluded from the court process.¹¹

Access to justice is a fundamental right that generally guarantees every person access to an independent and impartial process and the opportunity to receive a fair and just trial when that individual’s liberty or property is at stake. However, access to justice does not always involve judicial recourse but the availability of accessible, affordable, timely and effective means of redress or remedies.

2.1.3. Access to Justice: the Ethiopian constitution/ A Constitutional Concern/

The FDRE constitution offers a comprehensive list of fundamental rights and fundamental freedoms under chapter III. Article 13 and Article 37, incorporated in chapter three strive to make these fundamental rights and fundamental freedoms incorporate under chapter three of the constitution more realistic and effective. Article 13, which is applicable to both the “Human rights” and Democratic rights puts all federal and state legislative, executive and judicial organs at all levels, and constitutional mandate and duty to respect and enforce these rights and freedoms. It also mandates these fundamental rights and fundamental freedoms to be interpreted in line with the principle of UDHR, International covenants on Human Rights(ICCPR,ICESR,CRC…) and International instruments adopted by Ethiopian, it include CEDAW,CRC, CARD. By virtue of Article 9(4), all international human rights instruments ratified by Ethiopia become an integral part of the national law.

Article 37, which is a fundamental (democratic) right, guarantees every Ethiopian “the right to access to justice from a court of law or appropriate institution vested with judicial power. Article 10 falling under, “Fundamental principle of the constitutions” not only recognize that human rights and freedoms, which emanate from the nature of mankind, are inviolable and inalienable, but also states that human and democratic rights of citizens need to be respected.

None of the fundamental rights and fundamental freedoms can be altered unless all the state councils, by majority vote, and both the parliament and the House of the Federation (HoF), approve the proposed change(s) by a majority and 2/3 majority vote respectively.¹²

- Right to Access to Justice in Ethiopia: As A Fundamental Human Right

The FDRE constitution, plausibly with a view to making the fundamental rights and fundamental freedoms enumerated therein more meaningful and effective, guaranteed, every person the fundamental right to access to justice.

1. Everyone has the right to bring a justiciable matter to, and to obtain a decision or judgment by, a court of law or any other competent body, with judicial power.
2. The decision or judgment referred to under sub-Article 1 of this Article may also be soughtby:

(a) Any association representing the Collective or individual interest of its members; or
(b) Any group or person who is a member of, or represents a group with similar interests.

The overall reading of article 37 provides that a person or an association or group, on behalf of its member, is as a matter of fundamental right, entitled to obtain a ‘judgment’ or ‘decision ‘on any ‘justiciable matter’ from a ‘court of law’ or any other competent authority with judicial power.’ It is a fundamental right of every Ethiopian to enjoy his constitutionally guaranteed fundamental rights and fundamental freedoms enforced through a ‘court of law’ or appropriate body vested with judicial power and thereby seek justice. Under this provision there are terms and phrases which are disputable and affect the individual’s fundamental right to access justice. For better entitlement of this fundamental right it is better to explore what each element incorporated under article 37.

a ) “Everyone”

The FDRE constitution provides the right to access to justice to “everyone.”¹³ UDHR under art 10 provides “Everyone is entitled in full capacity to affair and a public hearing by an independent and important tribunal….” The ICCPR, also use the word “Any person”¹⁴ “All person”¹⁵, “Everyone”¹⁶ The ECHR, also provides, Indetermination of his civil rights and obligations everyone is entitled to a ….hearing…. by [a] tribunal….”

The right to access to justice incorporated under article 37 of the FDRE constitution is one of the fundamental rights provided in Chapter three, and since it is a core element to the rule of law, everyone who suffered actual injury or whose fundamental rights are violated has a right to get remedy either from judicial or quasi-judicial body. TadesseMelaku ,wrotes that:

The word everyone in this provision indicates that all persons without distinction are entitled to have access to court.¹⁷

The right to legal standing /locus standi/ requires a person whose interest (rights and privileges) is affected or infringed can institute a legal proceedings. It is the general principle as also incorporated in the civil procedure code of Ethiopia.¹⁸

However “Everyone” should be interpreted broadly. In the first place every one should be interpreted as inclusive of both physical and legal person to the right to access to justice. The question of standing also highly interlinked with the right to equality. Under ICCPR it is provided that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law, and all persons are equal before the law,¹⁹ and everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal.²⁰

And based on the common features of human rights as, universal, interdependent, indivisible, and inalienable,²¹ and the principle of equality, the right to access to justice as a machinery of rule of law embraces, all persons irrespective of their nationality, religion, sex, economic status, profession should have the right to access to justice under the word” everyone” of article 37 of FDRE constitution, to initiate legal proceedings before a court of law or quasi- judicial organs.

b) “Justiciable Matter”

The issue of Justiciability is very fluid term, and which is a ground of contestation before many judges of court.²² A matter/issue or controversy/ has to be justiciable to be brought before a court of law. Disputes can be justiciable or non- justiciable controversies.²³ Justiciable controversies, is controversy in which a present and fixed claim of right is asserted against one who has an interest in contesting, rights must be declared upon existing state of facts and not upon state of facts that may or may not arise in future. It considered with concepts like standing, Mootness doctrine, Ripeness doctrine, political question, prematurity, administrative question doctrine.²⁴

Standing- it refers a party right to make a legal claim or seek judicial enforcement of a duty or right. Ripeness doctrine the fact should be in a point when the facts have developed sufficiently to permit for judicial determination. I.e. the circumstance should be neither moot nor premature. Political question doctrine - it is defined as a judicial principle that a court should refuse to decide an issue involving the exercise of discretionary power by the executive or legislative branch of government it is based on the principle of separation of power. Administrative question doctrine is about issues which are administrative.

Sir Antony Mason defines justiciability to mean appropriateness for judicial determination.²⁵ and he points out the two fundamental questions to determine justifiability. These two elements are 1) determining whether there is a legal right or interest. 2) if it is proven that there is a legal right or interest, determining whether there is any reason to deny judicial adjudication in relation to that right.²⁶

I. Theoretical Approaches to Justiciability

A. Classic Approach-The classic conception of the American political questions doctrine is that a non-justiciable question is one which lacks legal right or is constitutionally committed to political department.²⁷
B. Modern Approach -In modern approach as to the work of Areil Bendor justiciability involves normative and institutional justiciability.²⁸ Normative and institutional justiciability:

Normative Justiciability involves or answers to a question whether there is a legal criterion sufficient to determine a dispute presented before a court. That means legal questions or disputes arising from legal rights for its enforcement are justiciable.²⁹ In other words the dispute should be capable of being answered. On legal rules it is about the existence a law which solves the dispute, or that the claimed right emanates from an enforceable law, it is based the judicial function of courts of law.

Institutional justicability-address the question whether the court is the most appropriate authority to determine a particular case./dispute/.³⁰ On one side it refers whether it is appropriate that the court adjudicate the subject matter of the dispute/ Material institutional justiciability/.³¹ It is a point of issue or question of justifiability that we are going to show in the Ethiopian court system adjudication power on labor right of the religious employees. On the other side it refers whether it is appropriate for a court to rule up on the legality of actions of a particular body (example parliament). It is not worse discussing under this research since in our legal set up power to determine the legality of actions of parliament is exclusively vested to the house of federation³²

II. Judicial Determination of “Justiciablity”

A. American Courts Experience

In the case between George .w Bush v. Gore, the issue of justiciablity of suits before a civil court has been raised for judicial determination. In the Article, Written by, Erwin Chemerinsky on the case between Bush v. Gore, the United States Supreme Court decided or settled criteria’s to determine justifiability or non-justifiability of a case.

The court raised the following concepts to determine justiciablity of a certain claim:

a) Standing/vested interest/

By standing the court ruled that third- party standing is not allowed, plaintiff only has standing to raise their own claims and can’t, present injuries suffered by third party.³³ That is the injured parties has to be part of the litigation, if not the case would be non-justifiable the exception is where the injured third party unties to protect its own rights.

b. Ripeness doctrine: The ripeness doctrine seeks to separate matters that are pre mature for review because the injury is speculative and never may occur.³⁴ That means the right to be claimed before the court has to be concert and precise on matured. In other terms, there should be an injury. For instance if the question is about equal protection before the law, as to the ripeness law doctrine to a plaintiff to bring a justifiable matter before a court of law there should exist actual injury, but not a mere speculative which may never occur. Until and unless the events occurred, the case was not ripe (mature) and should have been dismissed.
c) Political question doctrine: It is another distinct justiciablity requirement. It refers to allegations of constitutional violations that the ordinary courts will not adjudicate. The supreme court of U.S has held that allegations on constitutional interpretations should be left to the politically accountable branches of governments. “Political question doctrine” refers to subject matter that the court deems to be inappropriate for judicial adjudication rather to be resolved in the political process.³⁵ It is based on the notion of separation of power. That mean any constitutional question on the political process is not justiciable before a court of law rather a separate political body, the president and congress.

B. Australian Court Experience

Justiciabilty may be seen as a concept which across the fundamental obligation any court to exercise the jurisdiction vested in it and the principle that the right to the court must not be lightly refused, as well as the maintenance of rule of law.³⁶ Non exercise of jurisdiction invested in a court should be confined to issues which, on analysis, don’t involve the exercise of judicial power or because the issue is committed exclusively to a non- judicial agency or because the issue is incapable of resolution by legal criteria or ascertainable objective standards.³⁷ Many issues in government are not suitable for evaluation by the judicial method, because of, the nature of the issue, the limitations of judicial method, or the exercise of a more suitable alternative method of scrutiny. The Austrian Federal High Court considers the following administrative decisions as non–justiciable: A government decision involving the exercise of prerogative power³⁸ ; a cabinet decision³⁹ ; a decision with a close relationship to national security; decision made in the conduct of international relations.

The federal high court’s which the highest judicial organ in Australia is, interpretation is that, there will be no justiciable matter if the subject matter of the litigation depends entirely up on political sanctions, administrative questions.

C. The Ethiopian Court Experience

What is important to note is that the dispute must be justiciable for the exercise of the right to access to justice. The issue of whether a suit involves justiciable matter has been raised before the Federal Supreme Court in a few occasions. In the rental case, W/o AbaditLemelm v. Zalanbesa city administration office and Ato Birhan Zerfa, the Tigray Regional Supreme Court decides that cases involving policy and political determination are non-justiciable though the court doesn’t state exhaustively what constitutes justiciable matter but at least it helps us to infer in the Ethiopian court experience political questions are practically non justiciable. And the Federal supreme court decision is helpful that the mere participation of the executive organ in the civil suit don’t make the claim non justiciable as long as the plaintiff’s constitutional right is violated in this case the property right of the applicant,[63] and can be solved by application of ordinary laws, in the absence of clear exclusion. The FSCCD reverses the lower court decision stating;

“..ወደተያዘውጉዳይስንመለከምየአመልካችጥያቄቤትናቦታየንያላግባብተቀማሁየሚልናበፍርድሃይልየንብረትመብታቸውእንዲከበርላቸውየሚጠይቅነው፡እንዲህአይነትጉዳይበፍ/ቤትእንዲያልቅየሚከለክልህግየሌለሲሆንጉዳቱአስተዳደራዊነውሊባልየሚልበትህጋዊምክንያቱምየለም፡፡ጉዳዩንእንዲዳኝበህግተለይቶስልጣንየተሰጠውአካልምየለም፡በመሆኑምጉዳዩበፍ/ቤትሊወስንየሚገባው/justifiable matter/ ጉዳይ እንጅ በአስተዳደር የሚያልቅ አይደሉም፡፡”

The court depended on the right to access to justice to courts and other similar organs, which the court found in article 79(1) of the FDRE constitution and Art 4 of CPC which partly reads as: “Judicial power is vested to courts and courts shall have jurisdiction to try a law suits other than those of which their cognizance is expressly or impliedly barred.” Since there was not any other law determining other options to the claimant, the court argued, the court had the authority to intervene (it is justiciable matter in a court of law but not administrative issue).⁴⁰

From this theoretical as well as the courts jurisprudence on issue of justiciablity cases involving political or administrative question are non-justiciable.

c) “Court of law”

The other element under article 37 of the constitution is about institutions that individuals may present their grievance and seek their remedy. Dictionary meaning “courts law” is defined as a duly instituted organ of the government that administers justice, on the basis of legislation.⁴¹ The judiciary is a branch of government in which the judicial power is vested. The role of the judiciary whether it presides over criminal prosecutions or civil suits, is to serve as an impartial arbiter. The courts impartiality flows from the essential feature of the independence and motive of the judicial system, so as to attain justice.

This nature of judicial independence⁴² expressly stated under article 78 of the constitution.⁴³

Court of law with judicial power: It is undeniable that judicial power rests up on courts; in Ethiopia. It is only courts which are constitutionally established institutions of the state with judicial power. In other words as per articles 37 and 79 constitutional provision courts are the primary institution empowered to attain justice. But by no means are the only institutions with such power.⁴⁴ Though, article 37 doesn’t specify, it tells us that there might be other organs with judicial powers other than courts of law. Courts of law which has an impression of an organ of government (judiciary) established by law and functioning as per the law, are embodied with judicial independence at least in theory are established at Federal and Regional level as clearly depicted under art 79 of the FDRE constitution. As long as we have not totally prohibit citizens from taking their cases to the court law, and not prohibit appeal to ordinary courts, the government has the right to establish special courts.⁴⁵

- Quasi-Judicial Institutions /Articles 34/5/ and 78/5/

This phrase of article 37(1) of the FDRE constitution, show us that the existence of authorities with judicial function other than the court law. And the phrase also, takes under question the constitutional structure of organs of government, which vests judicial power only to courts both at federal and state level. Art 79(1) of the constitution states “judicial power, both at federal and state levels, is vested in the courts.”The Amharic version reads as: በፊዲራሊም ሆነ በክልል የዳኝነት ስልጣን የፍርድቤቶች ብቻነው፡፡ The plain reading of this two versions of art 79(1) reveals as that no competent body with judicial power(i.e.) the power to hear and determine controversies and render judgments according to law,⁴⁶ other than court/ ordinary courts) at federal as well as state levels. But the close reading the article 78(4) and sub-art 5 of FDRE constitution,⁴⁷ in line with article 37(1) and also the actual practice, we can prove that there are other bodies with judicial power other than the ordinary courts law. However, this legal gap or controversy is subject to further research that would have a persuasive value and the final concluding remark would be left to the HoF.⁴⁸ In the bench mark, from the provision of Article 78 FDRE constitution, we could have the following types of courts: Special or ad hoc courts that don’t take judicial power away from the regular courts or institutions and which follow a legally prescribed procedures; institutions legally empowered to exercise judicial power/ functions/ what constitutes institutions is subject to: The regular courts; Customary courts and religious courts. Since we are indulged to inquire the availability of particularly the justice system to the religious employees to challenge the violation of their labor right next we are going to view the establishment of religious courts in Ethiopia.

- Religious Courts as Quasi-Judicial Institution in Ethiopia

The FDRE constitution provides the frame work for the independent validity non- state or un-official claims such as customary and religious laws in some fields of social activity.⁴⁹ Article 34(5) of the constitution states that personal and family matter can be deal with through religion and customary laws up on the consent of the parties. It reads as follows; “The constitution shall not preclude adjudication of disputes relating to personal and family laws in accordance with religious or customary laws, particulars shall be determined by law”. The consent of both parties should be secured for personal and family matters to subject by those laws. It’s the mandatory requirement and it is one of the parties refused or not consent they cannot proceed with religious laws. Article 78(5) of the FDRE constitution provides that ‘Pursuant to art 34(5) the HPR and state councils can establish or give official recognition to religion and customary courts. Religious and customary courts that had state recognition and functional prior to the adoption of the constitution shall be organized on the basis of recognition accorded to them by this constitution. By the close reading of art 34(5) and art 78(5) in areas mentioned (personal and family matter) religion and customary law are allotted to function and the state took the responsibility of establishing or recognizing religion or customer courts. Legal pluralism in Ethiopia is confined to matter only personal status and family law. But what a problem is that the limited establishment of religious courts other than Sharia court affects the individual’s right to access to justice in Ethiopia, since access to justice involves the multiplicity of forums.

As per art 78(5), the state has given the option to establish or recognize religious courts. However to date sharia courts that apply Islamic laws are the only religious courts that have been officially established both at federal and state levels. They follow the procedural rules of ordinary courts and receive budgets from the state. They have their own appellate system. They are established by Federal proclamation no.188/1999. Their jurisdiction is limited to question out of marriage, divorce, maintenance, guardianship of minors and family relationship.⁵⁰ And sharia courts assume jurisdiction where parties are consented, to be adjudicated under Islamic law.⁵¹ The religions court, practically established by law as per art 78(5) of FDRE constitution is only” Islamic courts /sharia court/, only apply the Islamic law. And other religions like Ethiopian orthodox Tewahdo church, protestant church, don’t have their own religious court established or recognized by law. Secondly, even sharia court, adjudicates only family matters and it is provided under article 4 of the proclamation no.188/99.don’t seem that a sharia court to have a jurisdiction to adjudicate disputes out of employment relationship. The lists under the proclamation from our point of view are an exhaustive list and no possibility to incorporate the labor disputes under the subject matters of the sharia court. That is also less satisfactory based on the constitutional mandate given to the established or recognized religious courts the possibility to adjudicate both family and personal matters as provided under article 78/5/ in tandem with article 34/5/ of the constitution. Personal matters under article 34/5/ of the constitution may refer civil matters. And most importantly the jurisdiction of the sharia courts is dependent (conditioned) upon the consent of the litigants to be adjudicated under Islamic law. Thus, even where the religious courts are established in Ethiopia, different from Islamic law the disputants, as per the constitution, are at liberty, in respect of personal and family matters either to choice ordinary courts or religious courts. In respect of the Orthodox Tewahdo Church the non-existence of the religious institutions is inferred from the book that provide the institutional framework within the EOTC, i.e. Kalawadi* and we understood its non-existence in the protestant church from the interview we conducted with PasterElfeneh as he responded that there is no an established or recognized court in the church.⁵² Despite the fact that the Kalawadi puts several things such as how the church establish the relationship with its servants, what rights and duties they had and the like issues, it only established executive counsels and in no where it established a judicial or quasi-judicial organ which is competent to entertain the religious disputes. There is a council known as law and discipline council which seems established to handle employment cases in the church but looking provision which incorporates the powers and functions of this counsel tells us it does not given a function of passing judgments just like that of judicial or quasi judicial tribunals.⁵³

[...]

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¹ “The Black’s law dictionary defines 8th edition,

² United states institute peace

³ Access to justice under United nations and rule of law

⁴ JulindaBeqiraj Lawrence McNamara, International Access to Justice: Barriers and solutions, Bingham Centre for the Rule of Law Report, Excutive Summary, Oct. 2014. PP.2.

⁵ Open society justice intuitive, European council of human rights juries prudence on the right to legal aid 2007.

⁶ The UNDP” Access to justice practice note,” 2004.

⁷ Equality is defined as per Bangalore principles of Judicial conduct.

⁸ Art 2(3) of the ICCPR

⁹ Art.10 of Ibid

¹⁰ United Nations, ‘General Comment No. 9’, Committee on Economic, Social, and Cultural Rights, E/C.12/1998/24 (1998) Para. 2.

¹¹ Department for Constitutional Affairs, Human Rights: Human Lives (2006) <www.dca.gov.uk/peoples-rights/humanrights/pdf/hr-handbook-public-authorities.pdf> at 21 December 2006.

¹² Art 105(1) FDRE constitution

¹³ Art 37 and FDRE constitution “everyone has the right to bring a justiciable matter…”

¹⁴ Art2(3) of ICCPR “ Each state parts to the present convention undertakes “ Is ensure that any person whose rights or freedoms are violated have an effective remedy, notion standing that the violation has been committed by person acting in an official capacity.

¹⁵ Art 14 and ICCPR, “ All persons shall be equal before courts and tribunals”

¹⁶ Art 14 of ICCPR, and “…. Every one shall be entitled to affair and public hearing by a competent impartial and independent tribunal

¹⁷ TadeseeMelakuAsfaw, The Need For Balancing Rights of Employees and Religious Autonomy: the Case of Ethiopia, pp185

¹⁸ Art 32 of CpC of Ethiopia

¹⁹ Art 26 of ICCPR, see also article of 2(2) and 3 of ICESR, article of UDHR, art 25 of FDRE constitution.

²⁰ Art of 14 of ICCPR,

²¹ Art 10 of UDHR and Vienna Declaration on Programme of Action, 1993

²² Sir Anthony Mason, The High court as Gatekeeper (2003)24 Melbourne university law review 784 at 788

²³ Black’s law dictionary 8th Edition

²⁴ Id

²⁵ Id

²⁶ Ibid at 787

²⁷ Goldwater v. Carter, 444 US 99(1979) at 998-999

²⁸ HC 910/86, Ressler V. minister of defense, 42(2) pp 444. See also Ariel L Bendor, Are there any limits to just ability the jurisprudential; and constitutional controversies in light of the Israel and American experience(1996- 1997) Id, at 338 Indiana international& comparative law review 311 at 312.

²⁹ Id at 72,334-336

³⁰ Ibid at 338

³¹ Ibid.

³² Art 62 FDRE constitution

³³ See 3 USC(1994):Bush,121ct,at533

³⁴ Abbott labs.Gardner, 387 U.S 136,148-49(1967).

³⁵ ErminChemerinsky; Federal Jurisdiction,143-144(3d-ed 1999).

³⁶ (2007,1156 FCR 574

³⁷ Sir Anthony Mason AX KBE, the high court as gate keeper (2000)

³⁸ (2002) 209 CLR 372.

³⁹ (Pekoez)Minster for Arts, Heritage and environment Peko Wallsend Ltd (1987) 15 FCR 274

⁴⁰ Volume 11, file no 48217, Tikimt 03 2003 EC. The claimant was displaced from her original place due to the Ethio-Eitrean war. At the same time of her displacement the claimant lost her property. After wards the government instituted a policy that allowed the claimant like others displace, to obtain a piece of land and money to build a house from a government which she build a house on such land and money to build a house fromgovernment which she build a house on such land and granted by city administration. Due to later allegations of citizenship, the city administration decides that the plaintiff didn’t deserve the assistance extended by the government and took over the house, and transferred it to the second defendant. Lower courts, dealing only with the issue of jusiticiability, rejected the assistance extended by the government and took over the house and transferred it to the second defendant. Lower courts, dealing only with the issue of justiciability, rejected the plaintiff claim by the statement the matter was not justiciable. The Tigray Supreme Court decided the case as non-justiciable since it has the policy and administrative question. The claimant petitioned to FSC/ federal Supreme Court the principal issue presented by the court was whether the matter could be decided by courts. The respondent insisted that the matter was administrative matter that could not be determined by courts. The court depending on the right to access to justice to courts and other similar organs, which the court found in article 79(1) and Art 4 of CPC which partly reads as: “Judicial power is vested to courts and courts shall have jurisdiction to try any law suits other than those of which their cognizance is expressly or impliedly barred.” Since there was not any other law determining other options to the claimant, the court argued, the court had the authority to intervene(it a justiciable matter but not administrative issue).

⁴¹ Www. Dictionary.com (browses/ court law).

⁴². Judicial independence includes both institutional and personal independence

⁴³ Art 78(1) of FDRE constitution

⁴⁴ Art 37 Art 79(1) of the EDRE constitution.

⁴⁵ Art 78(5), EDRE constitution” pursuant to Art 34(5) of this constitution representatives and state councils can establish or give official. “This constitution pursuant to Art 34(5) of this constitution representatives and state councils can establish relating to personal and family matters in accordance with religious and customary laws, with the consent of the parties to the dispute. (Emphasis added).

⁴⁶ Art 79(1) of FDRE constitution

⁴⁷ Art 78(4) special or ad-hoc courts which take judicial powers from regular courts or institutions legally empowered exercise judicial functions and which don’t follow a legally prescribed procedure shall not be established. Art.78 (5) pursuant to sub-article 5 of Article 34 House of People’s Representatives and State Councils can establish or give official recognitions to religious and customary courts. Customary and religious courts that had state recognition and functioned prior to the adoption of the constitution shall be organized on the basis of recognition accorded to them by this constitution.

⁴⁸ Article 62 of FDRE constitution

⁴⁹ Art 34(5) and 78(5) of FDRE Constitution.

⁵⁰ Art 4(1), proclamation no. 188/1999. Federal Court of Sharia Proclamation

⁵¹ Id art.4/2/

⁵² Interview with Mr. “R” in chapter two part two and see Annex. IV *Kalawadi is the Ethiopian orthodox Tewahido church bylaw which is legislated by the Sinodos to regulate every activity of the followers of religion and the servants of the church in worshiping and serving t the church. This by aw has 66 Articles and throughout this articles it puts the rights and duties of the laities and priests deacons, abbots, nuns and other church workers.( it is a definition by the researchers after we study this bylaw in detail.)

⁵³ Ibid, Art 24(2): seems to give a power to pass decisions and solve disputes, if the cases are related to the rules of the Church. But even this power of this council is limited to simple cases.