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CONSTRUCTIVE DIALOGUE PART 7

Constructive Dialogue With Dr. Bereket Habteslassie (Seventh in series)
 
Legal effects of the Eritrean Constitution
The Eritrean constitution is written and ratified on May 23rd, 1997. Not applied to this time. Some, concerned people, asks for its application. Some, totally rejects its existence and the Eritrean government says, wait. What the majority of the Eritrean people says is unknown. Because the Eritrean people do not say. The most advocate person for the application of the constitution is the writer himself, Dr. Bereket. I am an apologist and sympathize with the delay (refer sixths in series of the same heading). Now, the problem is, Dr. Bereket informs us that it has legal consequences for the delay of the application of the constitution. Some of the legal issues are, some measures taken, after the ratification of the constitution, by the existing government could be null and void. By the way, Dr. Bereket, studied law. He is a teacher of law. He worked many years with law. Some times, I puzzle my self if he can drive a car. Because I think that, all his brain is full of law and I imagine that he has not place for driving knowledge in his brain ( I just want to emphasize how he is talented in law). Therefore, let us listen to what he is saying about the legal effects of delaying to the application of the constitution. Before I get in, to taking quotations, I want to tell you a story, how important it is to listen to what others are saying. The story goes on as follows. It was long time, people were believing that, the center of the universe is Earth and the Sun, moon, and stars revolving around it. These people were nationalists, in terms as Earth as a nation. The love to their nation Earth supersede even to the natural law. Their believe was, that Earth is the center of the universe. To oppose this nationalist sentiment was crime at that time. It was difficult to speak differently than the notion the Earth is the center of the universe. But, some individuals were making their own studies and found that, Earth is not the center of the universe. They found that, Earth makes a spin around its axis and revolves elliptically around the Sun. Their argument coasted them a lot, because it was against the belief of the people at that time. One person, who vigorously argued and tried to convince people, that the Earth is not the center of the universe, he was accused of collaborating with other planets and condemned as Weito, HamuShai Mesri (fifth column), keHadi, temberkaKi, dictator and what ever names you give, as long as our high tech is producing names. Finally, he was brought to justice in front of the king at that time and asked to denounce his claim, otherwise the consequence was death penalty. He, according to the advise of wise men at that time, kneeled down in front of the king and asked for a pardon for the crime he committed in preaching that, Earth is not the center of the universe. While he was kneeled down at the floor, he admitted that Earth is not revolving around Sun and he asked for mercy not to be killed. The king made pardon and ordered his soldieries to raise him from the floor. That person, while he was rising, he was heard by the soldieries lifting him, saying that, but the truth is, still it is Earth revolving. I brought this story, to tell that, what I am asking is, let us give chance the others to say as well. Let us listen what to the others are saying. The following is a quotation from Dr. Bereket’s article Grammer of Eritrean Politics (seventh in series).
 
Dr. Bereket said, "But, despite the possible lack of judicial sanctions, in terms of law, the acts of the government could be declared illegal one day, being acts that contravened the ratified Constitution. For if the Constitution has been in force since its ratification as I am contending, then all the acts and laws of the current government would be null and void to the extent that they are in violation of the provisions of the Constitution. In my considered opinion, all parties, be they individuals or companies, that have to deal with the government need to bear this in mind, that whatever dealings they may have undertaken, or are contemplating undertaking, with the government risk being declared illegal and thus null and void ab initio, i.e., after May 24, 1997.
 
end of quotation. Now, we heard what Dr. Bereket said. To speak from experience, there seems some facts about one government, makes null and void of its predecessors bypassed laws and some arrangements. We don’t need to go further, Dergue made some law and measures of Haileselassie null and void. The existing government of Melles in Ethiopia, made some laws and measures of Dergue null and void. Even the Eritrean government did made some laws and measures from the Ethiopian legacy in Eritrea, null and void. Therefore, the legal effects raised by Dr. Bereket are not merely bluffs. They need due considerations and the wisdom is to argue that, all measures that are taken to this time, that are under process and that are going to be taken in the future should be based on the best interest to the land, Eritrea, and not to the best of the existing government. If we know that governments come and governments goes, but the land is for ever, then our argument should be based to the interest of the land. Having said so, I would like to introduce you now, to what, our sister, Sophia Tesfamariam, contributes to the grammer of Eritrean politics. I said contribution, because what she did was a marvelous job in researching and presenting her article. She found for us an explanation to the "ab initio” of Dr. Bereket. Sophia Tesfamariam in her article " Void ab initio Dr. Bereket's feeble attempt to duck responsibility again
Posted on Monday, September 16, in biddho.com”, she said, " So what exactly does ab initio mean? I took the liberty to research that term and its usage and I found it to be quite innocuous (his intention is what got my attention). It simply means, that something will be considered null and void if it was illegal since its inception. A good example would be a marriage. If the person marries someone with the belief that that person was single and available and later on finds out the opposite to be true, then the marriage will be null and void because the act-the marriage- was illegal to begin with”, End of quotation. Sophia Tesfamariam, asks what really could be possible to make null an void, for instance, the delimitation verdict of the border with Ethiopia at The Hague. She eloquently challenges Dr. Bereket on this and others by saying as the following. She said, " If we follow your thinking (God forbid!) you expect us to believe that agreements and contracts are to be considered null and void if they were entered into after 1997. Can you tell us which of the following acts will be considered null and void? · Demarcation decision by The Hague and acceptance by the GoE and agreements signed then between all the parties? · Agreements signed by international entities such as the World Bank and the IMF and the GoE? · Agreements signed between the GoE and the UN, US, EU and others? · Commercial agreements between the GoE and others? ", End of quotation. In my opinion, I don’t think that all agreements are considered to be null and void. But some measures, for example, the closure of the private presses and the charges raised upon them could be resisted. The law that makes land the property of the state ( I am in favor to it) could be challenged and so on. I think, it would be better for me to leave this affair to the man of law himself and take the responsibility to clarify to us. Legal Definition of Null
NULL - Properly, that which does not exist; that which is not properly in the nature of things. In a figurative sense, and in law, it means that which has no more effect than if it did not exist, and also the defect which prevents it from having such effect. That which is absolutely void.

It is a rule of law that what is absolutely null produces no effects whatever; as, if a man had a wife in full life, and both aware of the fact, he married another woman, such second marriage would be null and without any legal effect.

Nullities have been divided into absolute and relative. Absolute nullities are those which may be insisted upon by any one having an interest in rendering the act, deed or writing null, even by the public authorities, as a second marriage while the former was in full force. Everything fraudulent is null and void. Relative nullities can be invoked only by those in whose favor the law has been established, land, in fact, such power is less a nullity of the act than a faculty which one or more persons have to oppose the validity of the act.

The principal causes of nullities are, 1. Defect of form; as, for example, when the law requires that a will of land shall be attested by three witnesses, and it is only attested by two.

Want of will; as if a man be compelled to execute a bond by duress, it is null and void.

The incapacitates of the parties; as in the cases of persons non compos mentis, of married women's contracts, and the like.

The want of consideration in simple contracts; as a verbal promise without consideration.

The want of recording, when the law requires that the matter should be recorded; as in the case of judgments.

Defect of power in the party who entered into a contract in behalf of another; as when an attorney for a special purpose makes an agreement for his principal in relation to another thing.

The loss of a thing which is the subject of a contract; as when A sells B horse, both supposing him to be alive when in fact he was dead. End of definition.
Conclusion, my preferences are, first we have to accept each other as one entity that works to the collective concerns. By doing so, we spare the time and energy of the Eritrean people from taking decisions unilaterally by one government and then making null and void by the other government. Taking actions unilaterally by one government and making null and void by the other government is just a wastage of ages of one generation to the other generation. Look for example the Ethiopian case. Haieselassie, at his time was powerful like the existing government of Eritrea. If not due to the power of the opposition, nature by itself, after counting ages, changed the system in Ethiopia. All that was done by Haileselasse was destroyed by Dergue. Following Haileselassie, Dergue came to power. Dergue was powerful on his time. He was doing every possible means without consulting the Ethiopian people. Dergue lost power, like all loses power with time. What happened to what Dergue did on his time? It was destroyed by the Melles regime. Now, Melles is trying, at least, by using parliamentary method to pass resolutions, but that is not complete. It is partial and the result is partial constructive move and partial destruction in Ethiopia. It is this kind of experience that we Eritreans have to avoid. We have to be wise enough not repeat the Ethiopians mistakes. Secondly, I encourage that, such constructive dialogue will help us in the long run to understand each other and come together to take actions of common concerns. To be continued .... God bless Eritrea. Tesfamicael Yohannes Oslo, Norway

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