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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18 thoughts on “The judiciary must be respected – Prof Danwood Chirwa”

  1. moto mwikho says:

    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?

  2. namitupa says:

    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?

  3. rasta says:

    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

  4. Nyapapi says:

    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!

  5. johnM says:

    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 this regard, they are subject to the dictates of the Minister of Finance when it comes to financial matters because it he who finances the activities of the judiciary.

    It is therefore unrealistic of the judiciary to demand conditions of service that are unaffordable to the nation. The judges and their lakkies should not demand to live like their counterparts in other countries.

    While its true that the judiciary should be respected, it should not be worshiped to the point whereby it should hold the rest of the nation to ransom

  6. Member says:

    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 years, judges who are corrupt, judges who give lean sentences to big offences, Judges who hijack cases handled by fellow judges, the list is long. To me judges are like any other professionals. They are graduates just like Teachers, Doctors, Engineers, Pilots, etc. They only have to behave and work profesionally to earn people’s respect. As for financial rewards, they only have to work hard. If need be, they can go elsewhere where grass is greener.

  7. goofed says:

    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!

  8. malawian says:

    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.

  9. chirwa says:

    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 and that of a doctor,the former will result to delayed justice or wrongly going to jail(bad indeed),but the absence of a doctor will lead to one place-the grave!!! now the reason lawyers and judges consider themselves to be more important than anybody else is yhet to be known,all proffessions are equally important,and why is it that even in financial good states,the judiciary has always been lagging behind in finishing tasks?this has even led to loss of trust by society in you,if the salaries in judiciary are lower than the civil service,then give them a raise,but if their pay is already good and what they just want is a gap to look superior to the rest then thus greed,you dont need to demand that much with first degrees most of you,sober up you guys,you are overexegerating your importance.

  10. CHEWA FEDERAL FRONT says:

    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 6 months. What then?
    Look, these incessant salary increment “merry-go-rounds” are less than helpful to this sickly economy. Times like these call for “sacrifices” or “tightening of belts” for all. Oh, my poor professor!!!!
    Incidentally, Standard Bank (a minor govt creditor) grew by 41%(assets) in 2013; its profits were 54% higher than in 2012. If this trend continues over the next decade Malawi Govt will be enslaved by the bank.
    I’VE WARNED YOU!!!!

  11. Mimiza says:

    A Danwood nanunso masiku ano nzeru zayamba kukuthelani. So u sat down and wasted some precious time only to come up with this lame article. Doctors and Engineers deserve more than these guys but you will never see them acting like this they are humble and try to get the best out of the minimum resources they work with. If there is a pathetic and shameful sector which is pulling Malawi down it’s the legal sector, full of corrupt and crooked judges and lawyers. There is a lot that needs to be done to this sector…output zero but when it comes to monetary demands eisshhh! If Malawi had money it could have been worthwhile to hire some competent legal personel from outside the country just show these folks how to do the work and to review our outdated laws.

  12. chefourpence says:

    kodi mtumbuka iwe ukugwira ntchito ku SA ko kapena wasowa zochita? Chirwa this! Chirwa that ! What the fuck? Keep quiet and stop acting like a mercenary.

  13. Manuel says:

    A Danwood nanunso anthu akupusitsani; mudzifufuza nokha. It’s not judges w r talking about here but clerks and drivers who don’t want other public servants wth similar or even better qualifications t get paid as highly as they do. Don’t just vomit what u memorised here but discus issues at hand on a case by case basis

  14. Malindima says:

    Professor, where were you when Julius Malema , Buti Manamela et al called the judges counter revolutionary in that country where you stay? Wasn’t this piece if advice needed then when your Judges there were under siege? A professional does not fear his boundaries ; I doubt about you!

  15. Ma battery a mlakho says:

    How do you expect to respect these corrupt judges?Genuinely speaking,our Malawian judiciary system is rotten to the core and it doesn’t deserve any respect.

  16. Kenkkk says:

    Prof financial security applies to all other professions, or staff not just to judiciary staff. Judicial independence to me Has nothing to do with financial security or independence. They are separate.

    Financial security and independence should be equally applied to all professions to avoid exactly the same reasons you give for the judiciary. I believe all professions should be rewarded equally or fairly without creating very large gaps amongst them. No
    Need to have two tier systems of pay in the whole govt, one being more superior to the other tier? It just bleeds jealousies. After all the judiciary at the moment is the most despised and least popular because of the way it is conducting itself and the many blunders it has created in dispensing justice in the country.

    The whole civil service should be harmonised so that there is no
    impression that one part of it is more important than another part of govt. If the salaries of the judiciary staff on equivalent grades as in the general civil service is higher then I see no reason for them to strike. Does it mean they don’t want the general civil service to catch up with them? That will
    Be very greedy and selfish. After all you buy the same ntochi or Nyama. If their salaries are lower than the equivalent grades in the civil service, then I agree with their grievances.

    I agree on the need for the govt to resolve this matter amicably by direct negotiations with the leaders of the striking judiciary staff or their union.

    Otherwise the whole general
    Civil service will also go On strike demanding parity with the judiciary.

  17. o says:

    The judiciary earn enough from corrupt judgements, so don’t give them an increase.

  18. MASITENI says:

    PROFESSOR VERSUS PROFESSOR !!!

    MAYO OOOOOO !!! MAYO OOOO !!
    WANTHU KULIRA A POLOFESA TILANDITSENI !!!

    NANGA TICHITE KUYENDA BUNO BWA MUSWE KUTI MUMVETSETSE KUTI ZINTHU ZA TSOLOBANA ???

    Aaaaaah !!! NABOLANI A MANDASI AMAMVA KULIRA KWA MTUNDU WA A MALAWI

    PANOPA BWENZI ZITAYENDA KALE EEEEEE !!!

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