The judiciary must be respected – Prof Danwood Chirwa

The judiciary does not deserve the ridicule that is being thrown at it. On the contrary, it needs to be respected and strengthened.

High Court and Supreme Court Judges: They deserve respect

High Court and Supreme Court Judges: They deserve respect

A society that does not have a mechanism for resolving disputes amongst its members is primitive; the one that has is civilised.

The on-going strike by members of the judiciary touches upon two fundamental principles. The first – the independence of the judiciary – is unique to the judiciary. The second – the responsibility of the executive – is germane to all civil servants.

It is a fundamental pillar of judicial independence that the judiciary must be institutionally independent from other branches of government. Institutional independence in turn entails financial independence. The judiciary as an institution is entitled to be given sufficient funding in order for it to conduct its proceedings smoothly.

Judicial independence also operates at the individual level, to ensure that judicial officers conduct judicial proceedings and adjudicate legal disputes without any ulterior motives, interference or influence. A central tenet of individual independence is the financial security of judicial officers.

Financial security is determined by the relative importance of the judiciary to the other two branches of the state, the executive and the judiciary, with which it stands in a position of power equilibrium and as a check. The position of a judge must not stand in a relation of inferiority to that of members of the legislature or members of cabinet.

The financial security of judges is also determined by reference to the legal profession as a whole. The position of a judge must be attractive to the most successful lawyer who practises the law diligently and in accordance with ethical standards. This does not mean that the judge must earn more than the highest earning lawyers in practice but that the position of the judge must offer such financial security in the long term that the most successful lawyer would reasonably consider joining the bench as a real career possibility. To improve the competence and capacity of our judiciary, we have got to make concerted efforts to employ the very best, and ethical conscious, lawyers.

The proper exercise of judicial functions requires a fresh and sharp mind, a mind that can listen patiently and digest the pleadings, testimony, arguments of the parties, various sources of law and secondary literature advanced in support, and any further documents the judicial officer considers relevant, and a mind that can deliberate freely and independently upon the relevant issues before it  and the applicable law and evidence and deliver a judgment that is just and fair.

Judges should not be placed on a threshold of poverty as this will compel them to seek alternative means of meeting their basic needs, such  as corruption, moonlighting or entrepreneurship. Judges must concentrate on one function only and limit chances of holding financial interests in various sectors of society to prevent their being caught up in positions of conflict of interest.

It is wrong to consider judges as workers who can withhold or pledge their labour. The contribution that the men and women who dispense justice make to society cannot be adequately remunerated as justice cannot be reduced to monetary terms. It is indeed truly hurtful to see judges being compelled to resort to industrial action to enforce commitments long agreed to by the executive and parliament. What judges are paid is and will always be merely nominal. But this does not mean that it is justifiable to pay them as little as they are now.

The executive cannot and should not act as if it is the employer of judicial officers. It should not dictate the funding and remuneration of the judiciary and judges respectively. If it is allowed to do so, talk of judicial independence would amount to mere fantasy. Through financial and salary incentives, the executive at any given time can purchase judicial sympathy.

The practice that has evolved thus far that suggests that the Minister of Justice and the executive have the untrammelled power to dictate the terms on which judges are employed is absolutely unconstitutional. It violates the constitutional principle of judicial independence. We need to develop an independent arrangement – such as through the judicial service commission and a parliamentary committee – to determine these issues.

The second fundamental principle the disputation around the judiciary’s strike has raised relates to the responsibility of the executive as the representative of the state. The executive, although we change it periodically, is a permanent organ of the state. Every successive cabinet by law assumes responsibility for the acts and omissions of the previous cabinets. This responsibility means that an incumbent government must acknowledge the wrongs of its predecessor and commit to rectifying them as if it is the one that committed them.

Thus, to merely say that there is no money to meet the demands of your institution is not enough. The executive must not expect other organs of the state that played no part in those misdeeds easily to forgo their just entitlements. As a demonstration of responsibility, the executive needs, through persuasion and negotiation, to work towards reachinga just and fair compromise with the affected public servants.

The use of its political muscle to demonise or vilify the concerned citizens will only serve to increase the gulf between the parties. With respect to the judiciary, such a tactic is wholly unfair as the judiciary does not wield political power or have the right to defend itself in the public realm.

A compromise is unlikely where the concerned citizens have just demands unless, through action, the executive demonstrates that it is rectifying the misdeeds of the past government and that it will restore in full the rights of those citizens in due course. Incumbent governments must recognise that reckless conduct affects the lives of those who have committed themselves to public service for which they are already poorly remunerated.

Admittedly, some members of the judiciary have acted in ways that have demeaned their position and diminished the image of institution they work for. However, this is not a sufficient reason for undermining judicial independence. It is the Minister of Justice’s duty to initiate appropriate policies and propose the rules and procedures governing the accountability of members of the bench. That issue is separate from the question of their financial security. The latter goes to the constitutional principle of judicial independence. The former goes to a different constitutional principle, of responsive and accountable governance.

 

  • Danwood Chirwa is a Malawian professor of law and one of the legal commentators relied up by Nyasa Times and Malawi mainstream media.
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moto mwikho
Guest

Professor; you are promoting a culture of entitlement that is not linked to productivity but status. Are you a BEE Professor or a genuine one?

namitupa
Guest

prof. as much as i respect your opinons, you better respect mine too. court workers are not superior.as long as the are civil servntants lets get equal salaries at the same grade.you think are more impotant than the teacher who teaches your children,doctors who treat you when sick,engineers?we dont deserve to b financilly independent?i didnt expect such myopic views from you.& b economic with your words.ataona anthu ophunzira ife koma izinso ndi zina.u have turne out to be their spokeperson?

rasta
Guest

here goes another dull lawyer! can you call this some professorial thinking? that is why we say this is a profession for fools. i for one would not waste my brains doing law. too much kudzikonda after milking malawians in the name of defending them. a man of your calibre must not try to soil himself in politics. in case you don’t know there are so many extremely learned malawian professors here in south africa but you will never here them making such useless noise. mukufuna kutchuka kapena bwanji? useless goon

Nyapapi
Guest

The Malawi judiciary is a shame! They don’t deserve more money than the next civil servant. They don’t work, miss case files, demand bribes and all other vices!

They should resign if they think they are very important and look for jobs elsewhere!

Only teachers deserve a raise!

johnM
Guest
Danwood should be serious sometimes. The judiciary gets its money from the same pot the whole Government gets its money. The Judiciary therefore cannot claim to be financially independent because as far as I am aware, the judiciary does not generate its own revenues. If it did then your statement that the judiciary should be independent financially would be in order. ESCOM is independent financially as it generates its own revenue, Waterboards are financially independent as they are able to generate their own revenues. The judiciary, no, they are not financially independent, they do not generate their own revenues. In… Read more »
Member
Guest
Prof. Where do you place Doctors, Teachers, Engineers etc? Do they also not deserve respect? I would rather respect those other guys than the judges. Judges are first and foremost lawyers. Lawyers are liars. They leave a lot to be desired, especially Malawian Lawyers. This article should not have come from you, a fellow lawyer. Let other people speak for you. We have a lot of examples to give on the behaviour of Malawian judges, For instance, the just ended election results, the drunken judges who lose institutional vehicles at a binge, the judges who sit on judgements for many… Read more »
goofed
Guest

SHALLOW PROFESSOR1 You mean others deserve less? What about govt/medical doctors for example? they should also be paid according to highest in pvt practice right? engineers at Min of Works? University professors who are even more qualified academic wise than most judges?Your argument is very ‘goofy’ and ur reasoning goofed big time on this one!!!;

EVERY PERSON NEEDS FINANCIAL SECURITY AND NO PROFESSION CAN MONOPOLISE THIS REQUIREMENT…. of course according to qualifications!

malawian
Guest

This article is void of the financial context of Malawi and the affluence, by Malawian standards, our judges currently swim in. If you want to prove this just go near their main entrance during knock-off time. You will see the cars they drive and so on. These judges who are not happy with the current salary level, let them resign and find jobs elsewhere. other than wanting to be special than other government workers.

chirwa
Guest
there are some truths in your arguments prof,though most of your arguments are funny,all sectors of government need money.not only judiciary,i know you want to support your fellow lawyers and judges but be humane sometimes,you mean lawyers are more important than say Doctors,nurses,teachers,agriculturalists etc?ok lets start with this,how long and hard does it take for one to become a lawyer or judge? and compare that to how hard and long it takes to become a general medical doctor or medical specialist,you will realise that lawyers havent gone to school yet,secondly,compare the results of the absence of a judge or lawyer… Read more »
CHEWA FEDERAL FRONT
Guest
A little bit of wisdom would have been handy for the professor. Donors closed their taps on us over a year ago but why is it only in the last 3 months that the economy is rapidly crumbling? Let the professor read Chikavu Nyirenda’s recent articles and he will be wiser. Okay, let’s assume that govt doesn’t have enough money but still goes ahead to grant judicial officers their demanded 45% salary increment. One way they would do this is by borrowing from commercial banks at hefty rates and let the kwacha slip further, say to K670-K800 per dollar within… Read more »

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