AG’s opinion on Malawi Judiciary’s strike is legally flawed –Prof Danwood Chirwa

Attorney General Kalekeni Kaphale’s formal legal advice on the legality of the demands by the judiciary’s personnel pertaining to their remuneration and benefits and of the strike in general is legally flawed and misleading. In political terms, it amounts to giving Mutharika a rope with which to hang himself.

The judiciary comprises the support staff and judicial officers (magistrates, industrial relations court chairpersons, registrars, judges of the High Court and justices of appeal). The law provides for different mechanisms for determining the remuneration of these two categories of the judiciary’s personnel. The support staff’s remuneration is determined in terms of the Judicature Administration Act by the Judicial Service Commission (JSC) and the Minister of Finance while that for judicial officers is done at the behest of the National Assembly.

Currently, it is only the support staff who are on strike. Judicial officers have merely given a warning that they will join the strike should their demands not be met.

In the main, the support staff demand an increment to their salaries equivalent to the rate that has been made for members of the civil service. They also demand a housing allowance. Both demands are made pursuant to the remuneration packages that were approved by the JSC and presented to the Minister of Finance in 2012 and the Settlement Agreement concluded in the wake of the 2012 strike. According to Kaphale, the government has offered a 20% increase to their salaries but rejected the housing allowance claim in its totality.

The judicial officers’ demand is three-fold: an increase to their basic salary, payment of housing allowance which was unilaterally and unconstitutionally discontinued by Goodall Gondwe a few years ago and replacement of vehicles. These demands are premised on the terms agreed to by representatives of executive and the judiciary which negotiated the end of the strike of 2012 and was subsequently approved by the National Assembly’s Public Accounts Committee (hereafter called ‘the PAC’). They also relate to the practice that has prevailed over the past 20 years.

Kaphale offers legal advice on three issues: (i) the legality of the demands based on the 2012 Settlement Agreement, the JSC’s recommendations to the Minister of Finance, and the PAC’s approved terms for judicial officers; (ii) the legality of the strike by the support staff and of the threatened strike by the judicial officers; (iii) and what the government should do in the light of his legal findings.

Kaphale’s treatment of the first issue, which is the most crucial of the three, both for judicial officers and support staff is mind boggling. For the support staff, he holds the view that their terms and conditions of service can only be those that the JSC and the Minister of Finance have approved. In this case, the JSC did approve the terms relied upon by the support staff but the Minister has not done so to date. By the same reasoning, the support staff cannot rely on the Settlement Agreement between them and the government signed on behalf of the government by the Chief Secretary.

For the judicial officers, he argues that the terms and conditions they are relying on were not approved by the National Assembly as required by section 114(1) of the Constitution. The approval by the PAC, according to him, does not suffice because legislative decisions have to be made by a majority vote in the National Assembly pursuant to section 48(3) of the Constitution and because the power to determine the remuneration for judges cannot be delegated to the PAC.

It is intriguing that Kaphale presents his advice in absolutist terms as if the provisions he is interpreting are capable of one interpretation only and as if they have not been interpreted by the courts before. In doing so, Kaphale has unfairly deprived his superiors of an opportunity to weigh up the opposing case and hence from making an informed decision.

In actual fact Kaphale’s interpretation is legally suspect from a wide range of angles and the alternative interpretation of the relevant provisions and applicable case law, which is offered here, is more compelling and in keeping with the fundamental values that underpin our Constitution.

Paradoxically, Kaphale thinks that his conclusions are necessary to ensure the rule of law and constitutionalism because the right offices and bodies empowered by law to act will have been allowed to do so.

However, he completely fails to address his mind to the fact that constitutionalism and the rule of law also require adherence to established legal and constitutional practices, respect by government for the rights of its citizens, respect by government for the agreements and promises it has committed to, certainty in government conduct, fairness in the implementation of policy, consultative and responsive decision making, and efficient government action. Furthermore, his opinion pays scant regard to the notions of judicial independence, participatory democracy and the separation of powers. Crucially, Kaphale’s understanding of delegation reflects a poor grasp of the workings of public institutions and of cooperative governance.

The whole gamut of Kaphale’s opinion is preoccupied with insignificant procedural issues concerning the determination of the remuneration of judicial officers and their support staff and is perilously fettered by two immediate factors: the apparent lack of state resources and the top-down executive decision to harmonise salaries of civil servants which is unproblematically being applied to personnel in the judiciary.

As a consequence, his opinion is short-sighted and does not pay any regard to the deeper issues of judicial independence the dispute raises. More importantly, it is not forward looking in that it does not propose any legal measures that may improve the procedures on the determination of the remuneration for judicial personnel so that we can avoid these embarrassing strikes and bolster the independence of the judiciary.

With regard to both the judicial officers and support staff, Kaphale is wrong to summarily dismiss their demands simply by having recourse to the principle of unlawful delegation. It is well known that delegation need not be expressly authorised by the empowering law. Indeed, the courts have held that delegation is key to modern governance; without it the state cannot function efficiently. Delegation can be implemented in a complex set of arrangements as was the case here.

In order to determine whether delegation was proper in a particular case, one has to consider a number of factors, including the nature of the empowering provision and the power, whether the delegation is partial or not, the nature of the delegate and the delegator, and the practical implications of requiring the authorised body to act by itself.

In arguing that the National Assembly cannot delegate its power to determine the remuneration for judges, Kaphale skirts any consideration of these factors and has in fact had to take a 180 degrees silhouette from the view he had taken in 2006-7 in a similar dispute concerning the remuneration and benefits for judges.

As is the case now, the executive (then led by former President Bingu wa Mutharika) refused to implement the remuneration and benefits approved by the PAC on the same grounds as those that Kaphale is now advancing. In a case brought by the Malawi Law Society (then led by an executive that understood its mandate and role in democratic Malawi), Kaphale along with Kasambara, Chalamanda and Mwakhwawa, argued that the executive was obligated to implement the new remuneration because these had been lawfully approved by the PAC acting under delegation from the National Assembly. The High Court, sitting as a Constitutional Court, rightly agreed with Kaphale and his co-counsel.

This case revealed that the National Assembly has long evolved a practice of flexible and rational delegation concerning this power. Sometimes it allows the PAC to make the final call while at other times, when members of the PAC have not reached agreement, the PAC refers the determination back to the whole house. Ordinarily, the PAC is constituted by all relevant sectors of the legislature such that the special interests of all the parties represented in the house are adequately considered and thrown into the negotiation pot. The nature of the delegate in this case is such that it allows the National Assembly to engage in a rational discussion that also makes it possible for members of the judiciary to present their proposals and rebut any adverse information before a final determination that reflects an outcome that is acceptable to all is reached.

The court made an affirmative finding that the standing orders, practices and usages by which Parliament delegated its powers to the PAC were valid unless and until successfully challenged in a legal action by the executive or withdrawn by Parliament itself. The executive did not appeal that decision. Neither has the National Assembly, to date, withdrawn its delegated powers from the PAC or amended its standing orders accordingly.

Kaphale’s advice effectively invites the National Assembly to revoke its delegation. However, such revocation cannot apply retrospectively to decisions already made.

Now Kaphale  would like us to believe that in 2006-7 he did not know about section 48(3) of the Constitution; that the three judges that wrote the judgement, the former Attorney General Maxon Mbendera and the other lawyers that acted in the case were ignorant of that section. Furthermore, his opinion essentially implies that all the judges of the High Court and Supreme Court of Malawi did not know about section 48(3) until it came to his attention in a special fit of legal revelation. This is preposterous.

For avoidance of confusion, section 48(3) of the Constitution provides: ‘Any question proposed for decision by the National Assembly shall be decided by a majority of the votes of the members present and voting, unless this Constitution or any other Act of Parliament otherwise provides.’

This section is located far away from the provisions on the remuneration for judges. It deals with the broad legislative powers of the National Assembly and uses different terms to those used by section 114, which are quite unique. Again, for ease of reference, section 114 of the Constitution provides:

‘(1) The Chief Justice and all other holders of judicial office shall receive a salary and other employment benefits for their services and, on retirement, such pension, gratuity or other allowance as may, from time to time, be determined by the National Assembly.

(2) The salary, any allowance and other employment benefits of a holder of judicial office shall not without his or her consent be reduced during his or her period of office and shall be increased at intervals so as to retain its original value and shall be a charge upon the Consolidated Fund.’

It must be noted at once, contrary to what Kaphale asserts, that the power of the National Assembly defined in section 114(1) is quite limited and can hardly be described as being legislative in nature. Under this section, the National Assembly does not determine the ‘terms and conditions’ for judges. It is only empowered to determine their salary, allowances and other benefits. That determination does not have the force of law but of an agreement reached by two equal parties, the National Assembly, representing the state as the employer, and the judicial officers as individuals.

Indeed, section 114(2) makes it clear that the National Assembly cannot make the determination at its whim. It cannot reduce the remuneration and benefits of the individual judges under any pretext and without the consent of the individual judges. It also has to follow the constitutional provisions on participatory, fair and responsive governance and respect the individual rights of the judicial officers. There is nothing in this section that suggests that the National Assembly has untrammelled power to impose its will on the judiciary.

There is also no direct link between this section and section 48(3). To be sure, the latter does not say what Kaphale imagines it to say — that questions on determinations of the remuneration and benefits for judges must be referred to the full house of the National Assembly and be determined by a majority of the members of the house. Thus, Kaphale is compelled to make a major leap in legal imagination to superimpose section 48(3) on the procedures concerning the determination of the remuneration and benefits for judicial officers.

‘Determination’ as used in section 114(1) implies reflective and reasoned decision-making following a fair procedure of identifying the relevant factors to be taken into account before the final outcome is reached. It deals with decisions which directly affect the rights of a specific group of people quite apart from affecting certain fundamental principles of the Constitution.

The decisions Kaphale has in mind in the context of section 48(3) relate to impersonal and general decisions that the legislature makes and are subject to the vagaries of majoritarian political machinations which do not necessarily have to be rational. Such top-down decision making cannot ensure that section 114(2) of the Constitution, the fundamental principles of the Constitution and the specific rights of the individual judicial officers are respected.

Commendably and in sharp contrast to what Kaphale is advocating, the parliamentary procedures, practices and usages that have evolved thus far have tended to avoid the politicisation of the determination of the remuneration and benefits for judicial officers and encouraged consultative, cooperative and conciliatory decision making, and respect for the independence of the judiciary and the integrity of judicial officers. Whenever these procedures have been respected and followed in good faith, positive outcomes have been reached and implemented in a way that has respected the judiciary and ensured the harmonious and amicable coexistence between the three branches of government.

Because section 48(3) does not require that the determination of salaries and benefits for judges must be proposed as questions for decision by the National Assembly, the view that such determination must as a rule be made by a majority of the MPs present and voting in the house is nothing short of a figment of Kaphale’s imagination.

As the Constitutional Court previously decided in agreement with Kaphale in 2006-7, section 114(1) powers are delegable and Kaphale has now not provided any good reason why that delegation should be restricted or withdrawn. What is more, the parliamentary procedures that have developed on this power have a long history and have never been abused. In fact, they have promoted the fundamental values of our Constitution such as responsive, amicable, fair and participatory decision making, and minimised the politicisation of this power, as argued above. In short, Kaphale was right in 2006-7. He is chasing chimeras now.

It is troubling that Kaphale’s opinion does not deal at all with the constitutional implications of the unilateral decision by Goodall Gondwe to withdraw the housing allowance for the judiciary’s personnel. This is a problem that has been the subject of previous discussions, was satisfactorily resolved in the 2012 negotiations and resulted in the PAC approval and Settlement Agreement.

That the judiciary has over the years chosen the route of amicable discussion and negotiation demonstrates its maturity and level-headedness on an issue in which it has direct interest. However, the arrogance the executive is showing may compel it to commence legal proceedings which will be determined by the judiciary itself and undoubtedly result in a finding of unconstitutionality against the executive, thereby escalating the hostilities between the two branches of government.

Neither does Kaphale’s opinion deal with the constitutional implications of the draconian decision of the executive to harmonise salaries of all civil servants and the attendant attempts to extend the application of this decision to members of the judiciary whom the executive must know do not belong to it. Why are there specific laws, procedures and institutions governing the determination of the remuneration and benefits for the judiciary’s personnel if there were no deeper constitutional principles underpinning the need for a special dispensation for such personnel and if all the powers over civil servants vested in the executive?

More importantly, Kaphale’s flirtation with legal formalism blinds him from a holistic consideration of the 2012 strike, the resultant Settlement Agreement, the recommendations of the JSC for the remuneration of the support staff, the approval of the PAC of the salaries and benefits for the judicial officers and the absence of any further action by the Minister of Finance with respect to the support staff and by the National Assembly with respect to the judicial officers. He fails to interrogate the circumstances under which the Settlement Agreement was made, who was representing who and the terms under which the representation occurred. He also does not consider whether there are any formalities that an approval by the Minister must as a rule comply with.

In a situation where there is a protracted strike, it is understandable that the Minister of Finance would delegate his or her power to another person to negotiate an end to it. It is indeed not a coincidence that the PAC did not choose to present to the National Assembly the terms of remuneration and benefits that had been agreed with the representatives of the judiciary and reduced to a Settlement Agreement. The same can be said for the lack of further action by the Minister of Finance. In a word, the Settlement Agreement, the recommendations of the JSC, the approved terms by the PAC and the absence of any further action thereon are all connected, form part of a single whole, and point ineluctably to the unimpeachable consensus between the executive, the judiciary and the legislature on the issues in dispute at the time.

Kaphale can now not incite the executive to recant those agreements. Such action would prove that we have a rogue government that cannot keep its promises and does not respect the rights of its citizens. Furthermore, it would amount to an unconstitutional usurpation of the powers of the legislature regarding the determination of the remuneration of the judicial officers. It is indeed astonishing that Kaphale has addressed his opinion to the ‘government,’ meaning the executive and ignored completely the Speaker of the National Assembly, which is the right institution to talk about matters of remuneration for judicial officers, and the JSC, which has the power to hire and fire the judiciary’s support staff.

Even if Kaphale’s opinion that the approval by the Minister and the National Assembly of the remuneration for the support staff and judicial officers respectively was necessary, it does not address the legal implications of a more than two-year delay in approving those terms. His opinion is that the National Assembly must at its February meeting vote on the terms that were approved by the PAC in 2012, and possibly alter them. He also recommends that the Minister of Finance must apply his mind to the recommendations of the JSC in respect of the remuneration of the support staff and possibly dictate new terms. He is, in other words, inciting the executive to unduly influence the National Assembly and hence undermine the independence of the judiciary.

Both recommendations ignore the context of consensus in which those recommendations and approvals were made, following as they did a protracted strike, and the applicable rights of the individuals involved. It could plausibly be argued, considering such a context, that the failure by the National Assembly and the Minister of Finance to act within a reasonable time precludes them from reconsidering the issue. They both have become functus officio. It could also be argued that they both waived their right to disapprove. Both categories of the judiciary’s personnel may also invoke the doctrine of legitimate expectations.

All in all, it does not bode well for good governance and the development of a culture of constitutionalism and respect for human rights that the executive should pretend to have reached an agreement with striking staff, then inexplicably and unjustifiably neglect to make final decisions, and many years later abrogate the consensus that was reached following a legitimate process to end a legally valid industrial strike. There would be no good reason for the striking staff to trust the government again.

Even if the Minister of Finance were to go ahead and make a unilateral decision that is not acceptable to the striking support staff, and the National Assembly to vote against the remuneration and benefits approved by the PAC in 2012, this development would not render the demands of the concerned citizens illegitimate or illegal. The strike may still proceed on the basis that the so-called ‘approvals’ do not fulfil the wishes of the striking staff.

In addition, apart from fomenting more anger and distrust, these decisions are liable to legal challenges which stand to be resolved by the judiciary itself as it did in 2006-7. For example, the meaning of ‘approval’ by the Minister is subject to different interpretations. It could be argued, contrary to Kaphale’s opinion, that the Minister can either approve and disapprove but he or she cannot unilaterally impose his or her own terms. The result of a disapproval is a return to the negotiation table. On their part, the judicial officers may challenge the determination of the National Assembly based on section 114(2) and other provisions and grounds I have alluded to above.

While Kaphale might be right that the support staff’s strike might be illegal, he is definitely wrong to think that the threatened strike by judicial officers is illegal. This is so because judicial officers are not subject to the provisions of the Labour Relations Act. Their terms and conditions are regulated specifically by the Constitution and specialised laws.

With respect to the support staff, threatening them with dismissals is counterproductive given the violations of their rights that the government committed prior to the strike. An employer who comes with unclean hands is least likely to be availed of the equitable remedies contained in the Labour Relations Act. Then too, the threatened dismissals will be extremely difficult to effect as the courts will most likely grant an injunction suspending the dismissals.

For a serious legal mind, the main concern here lies in the impact on judicial independence that Kaphale’s machinations if implemented may have. It is precisely because of the possibility of such irrational and reckless behaviour by the executive that it is widely recommended that the support staff of the judiciary should also receive special protection if judicial independence is to be fully guaranteed. This perhaps explains why there is a special statute dealing with the employment of the judiciary’s support staff, which in turn also suggests that the Labour Relations Act may not be applicable to the support staff. Hence, the so-called harmonisation of the civil service should fiercely be resisted and opposed.

Somehow, Kaphale thinks that the executive can discipline judges and the support staff, but there is no law that grants the executive such power with respect to either. The tenure of judges is protected by the Constitution and their dismissal has to follow an arduous and protracted process involving the JSC, National Assembly and the President as a member of Parliament. As for the support staff, the disciplinary power over them rests as it should with the JSC, not the executive, as is correctly implied by the Judicature Administration Act read with the Constitution as a whole.

It would indeed be highly irregular should the executive implement its threat to lock down the courts as it did with respect to the offices of the Anti-Corruption Bureau or refuse to pay the salaries of the striking staff. That would constitute an unprecedented assault on the independence of the judiciary.

Even if the executive had the power to hire and fire the judiciary’s support staff and judges, which it does not have, it is reckless to countenance the dismissal of all support staff and judges. Such action is only possible in a country where there is no respect for the rule of law and constitutionalism. The legal and political ramifications are so dire that one does not understand how a serious government could ever endorse such a route. The executive cannot remove a key landmark that the judiciary is from our constitutional power map. The irony of it all is that Kaphale’s scheme if implemented, which it cannot feasibly be, would result in the persecution and decimation of an important pillar of the state at the behest of a triumvirate of legal minds headed by a retired professor of public law.

The political consequences of Kaphale’s opinion and recommendations for this government are colossal. The battle between the executive and the judiciary will gridlock this government and render it completely impotent. No country can achieve anything without a functioning judiciary. Granted, the judiciary will be subjected to all sorts of politically driven attacks, as we have already seen, but it will survive them, the triumvirate and this regime as it has done in the past.

The executive may have a lap dog in the current Malawi Law Society, a conflicted and largely palm-oiled civil society and a rudderless opposition in the National Assembly, which will guarantee it the absence of clear and coordinated domestic opposition to its unprecedented assault on the independence of the judiciary. However, the gaze of the international community will soon be directed onto this misguided course of action. The pressure from it will be intense and will surely suffocate this government should it take Kaphale’s opinion seriously.

The solution to the strike lies in honesty and respect for the rights of the striking staff and the institution they represent. The demands being made by the striking staff are legitimate, have a long history, and are inseparably linked to efforts to bolster and secure the independence of the judiciary and hence to the protection and promotion of the separation of powers, checks and balances, public accountability and democracy.

As I have argued previously, it is not enough to curtail judicial independence and the rights of the judiciary’s personnel and other civil or public servants simply by alleging lack of resources. This government is not innocent as far as abuse of state resources and our current state of impoverishment are concerned. So far it has already proven its propensity to engage in wasteful spending and ethnic-based patronage, to divert public funds and to commit bribery and corruption. Saving on legitimate demands to increase the pool for illegal and fraudulent diversion of public funds is unconscionable.

The government must work towards regaining the trust of its citizens. The more it tends towards dictatorial and irrational decision making, undermines the institutions of the state, makes illegal threats and conducts itself as a rogue, the more distrust it gains and hence the more difficult it becomes for citizens to take its word or cooperate with it.

• 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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