Mass Media and Free Press in Eritrea
Sign up  |   |   |  Latest Topics  |  Chat
 
 
 


Reply
  Author   Comment  
adal

Moderator
Registered:
Posts: 88
Reply with quote  #1 

Thanks Professor Bereket - you are an icon of Eritrean constitution.

 

I would like to to know more on the following Issues

  1. In Article 17 Arrest, Detention and Fair Trial why there is no an effective remedy by the Competent Notional tribunals for acts violating the fundamentals right granted by the constitution.
  2. Article 19 Freedom of Conscience, Religion, Expression of Opinion, Movement, Assembly and Organization stated that : Every citizen shall have the right to form organizations for political, social, economic and cultural ends; and to practice any profession, or engage in any occupation or trade. Does it include an unethical Profession - few to mention prostitution, Lay midwifery, pornography?
  3. Why the need for Article 26 Limitation upon Fundamental Rights and Freedoms.
  4. Some political organization Like Eritrean Democratic Party (EDP) and Eritrean Democratic League (EDL) advocate for constitutional supremacy with the rectified constitution of Eritrea subjected for amendments should have supreme legal force and direct effect. What is your comment?
  5. What in the constitution cannot be amended?
  6. If you get another chance, what article would you like to see amended?
  7. Is the constitution available in all Eritrean Languages?
  8. Why the Constitution  fail to define the geographical limits of Eritrea
Bereket

Registered:
Posts: 16
Reply with quote  #2 

You have asked several questions, all important and all in need of commentary.  I don't know if you are aware that all these and more are covered in detail in my book, "The Making of the Eritrean Constitution" (2003). But I will answer your questions in batches of two or three at a time.

 

1. Article 17--Arrest, Detention and Fair Trial. 

You ask why there is no effective remedy "by Te Competent National Tribunals" for acts violating the fundamental right granted by the constitution.

Let me begin with what the constitution has laid down in this respect. The constitution being the basic framework for the resolution of all issues of contention, we must start from there--we need to refer to its provisions. That is what judges or anybody entrusted Th the duty of adjudicating a dispute must do.  So what does the constitution say on this question.

If you read (or reread) the constitution, you will find that this question is covered in the penultimate article of the chapter on Fundamental Human Rights...of the constitution (Article 28), titled, "Enforcement of Fundamental Rights and Freedoms.  

 

The constitution charges the courts of law with the duty of protecting fundamental rights.  Protection of rights necessarily includes enforcement of rights and providing the necessary redress when the rights are violated or infringed upon (Article 28(2)). 

 

Actually, Article 28 begins with a prohibition; it says, "The National Assembly or any subordinate legislative authority shall not make any law, and the Executive and the agencies of the government shall not take any action that abolishes or abridges the fundamental rights and freedoms conferred by this constitution unless authorized by this Constitution.  Any law and any action in violation thereof shall be null and void."   

 

Note the wording of the last sentence--"Any law and any action in violation thereof (i.e. of the rights conferred by the constitution) shall be null and void."  That is to say any law enacted, or any action taken in violation of this provision of the constitution shall have no force ad effect.

 

And who is to enforce this?  who else but the courts of law, which brings us to sub-section 2 of Article 28.  It provides,"Any aggrieved person who claims that a fundamental right or freedom guaranteed by this constitution has been denied or violated shall be entitled to petition a competent court for redress..." The sub-articles also says that in cases where the court finds that a right had been violated or denied, it has the power to make orders to secure the violated right.  Where damages had been suffered, the court has also the power to order an award of monetary compensation. 

 

This provision of the constitution is the anchor of what is generally known as The Rule of Law.  The courts of law lie at the center of the legal system as enforcers of the rule of law, as guarantors of fundamental Rights.

 

Now in a democracy, the courts do not stand alone; they are backed by the general public, but a free press and by a responsible representative institution elected, among other things, to fight for fundamental rights and freedoms of their constituents. Also in a democracy, even the executive is supposed to tread carefully not to violate any rights and freedoms.  The police, for instance, have to obey the law being careful not to infringe on the rights of an individual even when enforcing the law in arresting a suspect. I can give other examples, but I think you see my point.  In fact, as I said in answering another question yesterday, the President is under a duty to protect and defend the constitution, and he/she can be impeached where he/she has been found o have violated it. (See articles 32(9) and 41(6)].

 

To come back to your question, why are the competent authorities (.e. the courts of law) not fulfilling their duty in providing effective remedy for acts of violation of fundamental rights, I must first point out that we are working on the basis of an assumption that the courts are failing in their duty. Let me begin by saying that it is problematic to make a blanket statement like this,which gives the impression that all courts are failing in their duty on all occasions and that they do not lift a finger to redress wrongs committed by members of the executive, like the police or Ministers and/or their agents. 

 

That surely cannot be right because we can also make a counter assumption that thee ares some judges who are burning to exercise their constitutional duties and provide redress, as they are supposed to. Let me also say that there have been many reports of egregious violation of human rights in Eritrea particularly as concerns prisoners held in camps and other places of incarceration. This is a matter of record and does not need elaboration.

 

First of all, before we conclude that the courts have failed in their duty it is  necessary to ask if they have been petitioned by members of the public whose loved ones have been detained and treated inhumanely, asking for legal redress. Such redress would inevitably ask for an order to release the detainee or bring him/her to court and explain the reason for their detention. I assume that there have been such requests and I also assume, however, that the courts are unable (and perhaps unwilling) to entertain petitions asking them to send orders to the government authorities telling them to release the detainees or bring them to court and explain why they have been detained.    

 

Of course, we know the reality in Eritrea today.  What judge would go all the way in enforcing the constitutionally-guaranteed rights of individuals to the extent of probing happening in Saws or even in detention centers other than Saws. If there are such judges and if they have made heroic attempts to stand up to the Executive, history will indeed write their acts in golden letters, as the saying goes. The truth is that the above citation of the constitution is the ideal situation that we all hoped and expected to be the condition for which martyrs gave their lives and on which there were great expectations on our part that the constitution would be implemented as it was supposed to be by the end of 1997 or (at the latest) by the middle of 1998.  As we all know that has not happened.  Therefore all talk about constitutional rights has been frustrated by a simple fact that the constitution has not been implemented. 

 

The point about the question is why have the institutions that are charged with protecting or defending the rights of people not done their duty.  As we saw in the present Eritrean reality the most that we can expect from some courageous judges is to register their views and face the consequences. 

 

One such judge did so and was summarily dismissed from his post.  He happens to be the President of the Supreme Court, that is to say, the head of the judiciary.  In dismissing him at his first attempt to stand up for constitutional rights, objecting to the undue interference of the Executive in judicial matters, the powers-that-be dealt a severe blow to judicial independence and thus instilled fear and intimidation in the rest of the judiciary.  

 

All Eritreans who had pinned their on a constitutional governmetemerging with the implementation of the constitution were bitterly disappointed.  Some of them took up the cause of democracy and the rule of law demanding that the constitution be implemented and that a people's representative body be elected in accordance with and electoral law as stipulated in the Constitution.  They also called upon the president to fulfill his promise and the promise of the party that he heads to institute democracy and the rule of law. You know what happened t some of those who pressed such demands top the ultimate point of challenging the president. 

 

Others have taken the struggle from the realm of law into that of politics and formed opposition movements abroad. The vast majority, however, have been silenced into submission, I suppose expecting others to do the job for them.

Does this sound familiar? And can you feel the deafening silence in the count

 

That will be all for now; I will answer your seven other questions later today or tomorrow.

 Have a good summer and thank you for asking truly probing questions. 

  

bereket
Reply with quote  #3 

 

 

I am returning to the person who asked 8 questions a few days ago.  I had given a lengthy answer to one of his (or her) questions regrading Article 17 of the Constitution and had promised to come back to answer the other questions. I am now going to answer question number 2 on Article 19 on Freedom of Conscience, Religion, Expression of Opinion, Movement, Assembly and Organization.

 

Question.

The question was specifically focused on the practice of a profession, and raised an interesting point about certain "professions."  The question posed is whether the said freedom includes "an unethical profession" such as prostitution, lay midwifery and pornography. 

 

Answer

Although your question is focused on certain matters, I will take this opportunity to say few words about some of the important rights covered by Article 19. 

 

First, you will find that Article 19 makes a distinction between the rights to be enjoyed by every person (See Sub-articles 1, 2, 4 and 5).  Then there are the rights that are applicable to citizens only (Sub-articles 3, 6 8 and 9).

 

Secondly, freedom of thought, conscience, belief, freedom of religion,and the right to practice it are fundamental rights that cannot be suspended in times of emergency, and they may not be limited under any circumstances or suspended in times of emergency. 

 

Third, and coming to the focus of your question, the right to practice one's profession is guaranteed, and to that end, of optimizing one's interest, both material and intellectual, by forming or joining and being part of an association which advances those interests.  This right has economic as well as social and cultural aspects and, as such, can be the basis for the advancement not only of the interests of individuals and groups, but also through their activities, the interests of the community as a whole. 

 

Coming back to the distinction referred to in the first point above, we find that the Article reserves five categories of rights to citizens only.  The first is the right of access to information.  The second is the right to form organizations for political, social, economic and cultural purposes.  The third is the right to practice any lawful profession, or engage in any occupation or trade.  The fourth is the right of free movement and establishment of residence in any part of Eritrea.  Last but not least, there is the right to leave and return to the country and be issued a passport or other travel documents. 

 

If these are rights reserved to citizens, what about non-citizens residing in Eritrea?  As noted before, the sub-articles that pertain to non-citizens as well as to citizens (every person) guarantees certain rights.  First is freedom of thought, conscience and belief.  Second is the right to freedom of speech and expression, including freedom of the press and other media. Third is the freedom to practice any religion and to manifest such practice.  Then there is the right to assemble and to demonstrate peaceably together with others.

 

Now are prostitution, pornography and "lay midwifery" among the rights guaranteed by the Constitution. The key word in the sub article of Article 19 concerning this question is "lawful."  Sub-article (7) of Article 19 provides, "every citizen shall have the right to practice any lawful profession, or engage in any occupation or trade."  Thus what the society of a given time or its elected government may consider lawful would be acceptable.  If there is a law that prohibits prostitution, or pornography (as I am certain there would be in Eritrea as elsewhere,), these would not be allowed. The same holds for lay midwifery.  I imagine the government would regulate this in accordance with the needs and capacities involved.

 

[If you need a more detailed discussion of these and other rights, I refer you to my book, The Making of the Eritrean Constitution, Red Sea Press (2003).

 Stay well, until our next conversation.

Next I will discuss Article 26 Limitations upon Fundamental Rights ad Freedoms.   

Bereket

Registered:
Posts: 16
Reply with quote  #4 

 

 

Answers to Eriwoman's Questions 5-8. 

I will answer Q. 4 together with similar questions by another person.

 

Q. 5: "What in the constitution cannot be amended."

 

Answer

As I discussed the issue of constitutional amendment, I assume that you have read it and will not need any explications on it as it is provided for in the constitution.  So I will go straight to your question.  Most articles of the constitution an be amended, but some cannot; what are these?

 

Please read Chapter I of the constitution,  GENERAL PROVISIONS.

 

All of the provisions of Article 1 of this Chapter, except sub-Article 5, are fundamental principles that are not amenable to amendment. Sub-Article 5, which provides that Eritrea is a unitary state, may conceivably be amended in the future; at least proposals for its amendment may be tabled but may or may not muster the required votes to pass.

Article 2 on the supremacy of the constitution, may not amended.  

 

See also Chapter II, NATIONAL OBJECTIVES AND DIRECTIVE PRINCIPLES.

 

This chapter contains basic matters like 1) National Unity and Stability matter; 2) Democratic Principles; 3) Economic and Social Development; 4) National Culture; 5)Judicial System; 6) Civil Service; 

7) National Defense and Security; and 8) Foreign Policy. 

 

Some of these are amendable, while others are not.  However, even in those cases that are, in theory, amendable, it may be practically impossible to secure the requisite majority to effect an amendment.  An example is Article 9(2) which says, "The State shall encourage values of community solidarity and love and respect of family," while it is amendable in theory, any person seeking to amend it will be hard pressed to secure the votes for amendment. 

 

The truth is, as I said in answer to a previous question, the constitution puts up a high hurdle to be passed before any of its articles can be amended. [Please refer to previous answer].

 

Q.6. 

What articles would I like to see amended.

 

Answer

1) I would like the provision on language policy to be amended in favor of Arabic and Tigrigna being the official languages.

2) I would like to see article 23(2) of the constitution amended to restore ownership of land to the citizens, with the government reserving the right to take land for public purposes as now provided for in Article 23(3).

 

Land is a critical and contentious issue.  Therefore, the legislation that will address issue concerning land need to be thoroughly thought out, researched by experts and debated by the public.

 

Q. 7.

Is the Constitution available in Eritrean languages?

 

Answer

At the time that it was ratified the constitution was available in Arabic, Tigrigna and Tigre.  I may be mistaken, but there were efforts to translate it into Saho and Afar, but I am not certain whether or not the efforts were pursued and completed. 

 

Q. 8.

Why did the constitution fail to to define the geographical limits of Eritrea.

 

Answer.

Article 1(2) provides: "The territory of Eritrea consists of all its territories, including the islands, territorial waters and airspace, delineated by recognized boundaries."

This shows that the constitution did not fail to define the geographical limits of Eritrea. The question may be about which boundaries are "recognized

boundaries;" if so, it will take us to a different subject.  

Previous Topic | Next Topic
Print
Reply

Quick Navigation:


Create your own forum with Website Toolbox!