Understanding Civil Procedure: Key Concepts

Substantive vs. Procedural Law

Substantive Law

Substantive laws define the rights, duties, privileges, and liabilities of persons. They set out regulatory norms for mutual relations in their ordinary course of life, providing the basic rules governing day-to-day activities.

• Purpose: To avoid disputes by predefining rights and duties in an intelligibly ascertainable manner.
• Nature: Often referred to as "law at rest."
• Examples: Civil Code, Commercial Code, Penal Code.
• Significance: They form the substantial portion of laws and seek to ensure individual freedom within public order and societal harmony.

Procedural Law

Procedural laws govern the manner in which claims are prepared, where and when they are presented, and how they are determined and finally enforced by a court of law. They are the "instrumentality" through which substantive laws are given effect.

• Purpose: To secure the just, speedy, and inexpensive disposition of cases; to ensure proper enforcement of rights and duties.
• Nature: Often referred to as "law of action," reflecting the dynamic aspect of substantive rules.
• Examples: Civil Procedure Code, Criminal Procedure Code.
• Significance: "procedural rules, in essence, give effect ('life') to the ends sought to be achieved by substantive laws." Without effective and efficient procedural rules, declared rights are meaningless in practice when infringed. Procedural irregularities can "affect the ultimate fate of litigation dramatically not less than the substantive problems."
• Categorization Challenges: Distinguishing between substantive and procedural rules can be difficult, despite general guidelines (material source, purpose, functional application). For instance, rules on periods of limitation may have characteristics of both.

Civil vs. Criminal Procedures

Civil Procedure

Civil procedure is a set of rules employed in the disposition of civil cases, which primarily deal with matters related to private individuals' interests. Civil wrongs are "breaches of private rights, affecting individual interests; and are called civil injuries".

• Parties: Initiated by a private person (plaintiff) claiming redress against another private person or entity. Parties can be physical persons, legal persons, or even the government acting in its private capacity (e.g., commercial transactions).
• Purpose of Suit: To secure redress for a wrong, typically in monetary terms (damages, specific performance, restitution, injunction). The main purpose of administration of civil justice is primarily to "enforce rights."
• Outcome: Award of compensation to the victim or dismissal of the case.
• Flexibility: Subject to negotiations and compromise; parties can withdraw the case.

Criminal Procedure

Criminal procedure governs the steps to be followed in penal prosecutions, which concern violations of public interests affecting society as a whole (crimes). Crimes are considered more serious and injurious to the public.

• Parties: Commonly the state (public prosecutor) against an individual suspect (defendant). Limited exceptions exist for "offences upon complaints."
• Purpose of Suit: To maintain peace and order of the general public by, primarily, punishing the lawbreaker. The state initiates a criminal case for the purpose of securing obedience to its laws by inflicting punishment and/or other measures on the criminal offender.
• Outcome: Acquittal or conviction, carrying penal liability (imprisonment, capital punishment, fine).
• Flexibility: Generally not subject to alternative dispute settlement mechanisms or withdrawal by parties, with exceptions for "offences upon complaint."

Fundamental Procedural Principles

Impartiality of the Judge

A judge must be "free from bias," defined as "an operative prejudice; i.e., predisposition towards one party or against the other without proper regard to the true merits of the case."

• Facets: Subjective impartiality (of the judge) and objective impartiality (of the tribunal).
• Sources of Bias: Personal bias (friendship, relationship, hostility, prejudice) and pecuniary bias ("nemo judex in cause sua" - no one should be a judge in his own case).
• Key Principle: "justice should not only be done, but must appear to be done."

Right to be Heard

The governing maxim is "audi alter am par tem" ("Hear the other side") – "no body should be condemned unheard."

• Requirements: Notice must be given to the party before proceedings start, and a party must be given "an adequate and reasonable (effective) opportunity to explain (hearing)."
• Evidence: Parties should have the opportunity to adduce all relevant evidence and rebut evidence submitted against them.

Equality of Treatment

"Every one is prima-facie equal before the law." This implies equal subjection of all persons to ordinary laws and protection for everyone without discrimination.

• Equipage Equality: Equality between litigants in preparing pleadings, getting legal aid, and searching for evidence, irrespective of income.
• Rule Equality: Under similar circumstances, each party should be subjected to and protected by similar rules.
• Outcome Equality: Similar issues, under same grounds/circumstances, should have similar outcomes ("like cases should be treated alike").

Public Hearing of a Suit

The public must have access to the litigation process (court-room), ensuring "justice must not only be done but must also be seen being done."

• Transparency: Ensures transparency of judicial activities and secures acceptability and reliability of the judiciary.
• Exceptions: Cases of inherently confidential nature may be considered "in Camera."

Judicial Independence and Accountability

Judicial Independence

A "cardinal element of the rule of law," often constitutionally protected, ensuring the judiciary is free from unwarranted encroachment or influence.

• Institutional Independence: Related to separation of powers, ensuring balanced coordination among government branches and freeing the judiciary from executive influence. Ensured by legal stipulation (e.g., FDRE Constitution Arts 78 & 79), full authority over internal and financial affairs, and secured tenure for judges.
• Functional/Personal Independence: Judges should be free from internal (colleagues, superior courts) and external (outside intrusion, fear) influences, "solely be bound and guided by the law."
• Historical Context (Ethiopia): Faced fusion of judicial and executive powers, leading to external pressure and lack of independent existence.

Accountability of Judges

Independence should not lead to irresponsibility. Judges must be "amenable to the law" and "held responsible for their decisions."

• Balance: A "reasonable compromise has to be struck" between independence and accountability.
• Safeguards: Workable normative and institutional protective measures, reasonable appellate opportunities, transparent judicial proceedings, and judges being open to criticism.

Modes of Proceedings & Historical Development

Adversarial vs. Inquisitorial Procedure

• Adversarial Procedure: Typical feature of English judicial process (e.g., UK, USA). Parties (or advocates) shoulder the burden of initiating, shaping, and fixing the scope of litigation. Judges play a relatively passive role as "impartial umpires."
• Inquisitorial Procedure: Employed in Continental Europe (e.g., France, Germany). Judges have a more active, "inquisitorial" role, inquiring deep into the merits, ordering evidence, and critically examining witnesses.

History of Civil Procedure in Ethiopia

• Pre-19th Century: Absence of systematically organized judicial process; justice dispensed through informal means (roadside tribunals, family friends).
• Formalization: Gradual formalization with officials like "Chiqa-Shum," "Deputy-Governor," "Governor," "Womber Rases," "Afe-Negus," culminating in the Emperor's "Zufan Chilot."
• Influence of Foreign Laws: Proclamation No. 2/1942 established a modern court structure. The first written procedural law (Leg. Not. No. 33/1943) and subsequent laws were influenced by Indian procedural laws.
• 1965 Civil Procedure Code: Promulgated as a Decree. Its material source is suggested to be of common law origin (English and Indian law). Faces interpretational challenges due to its promulgation as a Decree.
• Subsequent Amendments: Limited amendments until recent years, notably Proc. No. 454/2005 which made Cassation Bench interpretations binding.
• Criticisms: The system faces "irrefutable criticisms and a considerably wide ranging strain of dissatisfaction" due to "intolerably sluggish, inefficient, unpredictable and costly litigation processes."