Attorney General’s opinion on condition of service for staff in Malawi judiciary

Background

1.  There is currently an on-going discussion between judicial officers and support staff in the Judiciary on a number of issues relating to the terms and conditions of service of both categories of staff. There does not appear to be any agreement on the issues under discussion with the effect that the support staff have gone on strike. Judicial officers also gave notice that they would go on strike. The notice period they gave expired but the judicial officers have not formally gone on strike as some of them do sit to make urgent orders. The judicial officers cannot operate at full capacity however, in view of the strike by the support staff.

2. There is a history to the current situation. Towards the end of 2011 and the beginning of 2012, the support staff went on strike on matters to do with their terms and conditions of service. The strike was resolved in 2012 following a Settlement Agreement that was executed between the Chief Secretary to Government and representatives of judicial officers and support staff. Before the strike was resolved, the Public Accounts Committee of the National Assembly did approve terms and conditions of service for judicial officers and these were referred to in the Settlement Agreement.
3. Among other components of the terms and conditions of service approved for judicial officers by the Public Accounts Committee of the National Assembly was payment of a housing allowance to judicial officers, as well as a term that every time civil servants receive a pay rise, there will be a corresponding review of salaries of judicial officers of the same percentage magnitude.

4. For support staff, their terms and conditions of service are supposed to be determined by the Judicial Service Commission and approved by the Minister of Finance. The Judicial Service Commission proposed some terms and conditions of service for this category of staff but these are yet to be approved by the Minister of Finance. Pending approval, the Settlement Agreement did mention increasing salaries of support staff in the judiciary by the same percentage increase as for civil servants.

5. Government, in 2014, adjusted salaries for civil servants in attempt to harmonize them with corresponding grades in the other arms of government. The average percentage increase was 45%. Support staff in the judiciary are demanding the same magnitude of increase in their salaries on the basis of their unapproved conditions of service as read with the Settlement Agreement. Judicial Officers are making a similar demand on increments in their salaries on the basis of the terms and conditions ofservice as approved by the Public Accounts Committee of the National Assembly and also, on the basis of the Settlement Agreement. Both categories are demanding housing allowances on the basis, for the judicial officers, of the terms and conditions of service approved by the Public Accounts Committee and for the support staff, on the basis of the unapproved terms and conditions of service. Judicial officers are also making several demands in relation to new vehicles for the Chief Justice, replacement vehicles for them and new vehicles for the newly appointed judicial officers. There seems to be some consensus on the issue of liability to purchase the vehicles and the only remaining question is that of timing in view of lack of funds.

B.Issues for consideration in this legal opinion.

6. This opinion will tackle the following issues:

(a)the legal validity of the demands for payment of housing allowances and for increases in salaries of the same percentage magnitude as that for the civil service;

(b)the legality of the strike action; and

(c)the way forward for both parties.

 C.Approach

7. I will be discussing the applicable law as I discuss the issues. There will be no separate section dealing with the law.

8. In proffering the legal advice, I am aware that under section 98(1) of the Constitution, I am principal legal advisor to Government and there is a duty to be impartial when I give legal advice. This duty of impartiality is bestowed on me under section 98 (3) of the Constitution.

D.First Issue- The legal validity of the demands for housing allowance and for salary increases for judicial and support staff that match, in terms of percentages, with those paid to civil servants.

9. Government proposed to increase judicial officer salaries by a premium of 20% and increase support staff salaries to the extent that they are harmonized with the new civil servants salaries. I observe that the Working Group for the judiciary have, in their letter of 11th December, 2014 communicated a rejection of the offer made by Government to increase judicial officers’ salaries by up to 20% beyond that received by corresponding grades in the Civil Service. They have also communicated a rejection of Government’s offer to increase judiciary support staff salaries in the manner Government proposed. The rejection of both offers is premised on an understanding by the Working Group that the offers by Government are against the express dictates and spirit of the Laws of Malawi.

10.To recap, both judicial officers and support staff are claiming housing allowance contending that the provision of housing allowance is a duly approved term and condition of service. Both are also claiming a salary increase of a similar percentage to that which the Civil Servants have received. This claim is also on the basis that this is a duly approved term and condition of service.

11.The Working Group observes, correctly in my view, that the National Assembly, and not Central Government, is the body responsible to determine the terms and conditions of service of judicial officers (paragraph 3 of their letter of 11th December, 2014). Under the Judicature Administration Act, the terms and conditions of service for junior staff are supposed to be set by the Judicial Service Commission and approved by the Minister of Finance.

12.Constitutionalism and respect for the rule of law are cardinal or foundational principles of our democracy. The above factors must be the guiding principles in my discourse.

13.Taking the above positions as the starting point, I will begin by discussing the legality of the demands by the support staff. The Judicature Administration Act gives power to the Judicial Service Commission to set terms and conditions of service for this category of staff but the terms must be subject to approval by the Minister of Finance. For this category of staff therefore, the legitimacy of their wage increase demands and the demand for housing allowances entirely depends on whether their terms and conditions of service were set by the Judicial Service Commission and whether they were approved by the Minister of Finance.

14.When I asked the Minister of Finance as to whether he or any of his predecessors approved any terms and conditions of service for support staff in the judiciary, he said he could not recall having done so and that there is no record of such an approval having been made by any of his predecessors. I, therefore, invite the Working Group to ask the support staff to provide me with evidence to the contrary on this point. If it is correct that no such terms were approved by the Minister, then there is no legal basis for the demand. This means that the proposition that support staff are entitled to housing allowances or to increments that correspond with those in the Civil Service has no legal basis.

15.I am reliably informed that the proposed terms and conditions of service that were made by the Judicial Service Commission included payment of a housing allowance and a provision that the junior staff would be entitled to increments matching those made in the Civil Service. The proposed terms and conditions of service were submitted to the Minister of Finance for approval but the Minister of Finance has not reverted on the same. This means they remain unapproved to date, are just mere proposals and cannot be used to found a legitimate demand.

16.The support staff have raised another point though, to support their demand for salary increments that match those in the civil service. They are basing their demand on a Settlement Agreement with government during their year 2012 strike. This Settlement Agreement was signed by the Chief Secretary to Government and it provided, among other things, for payment to them of corresponding salary increments every time there was an increase in civil servants pay. It did not tackle the issue of housing allowance. I will comment on the legal status of that Settlement Agreement and its impact on the support staff demands when I am dealing with the demands by the judicial officers as they are basing their arguments on that document as well.

17.I will now tackle the demands by judicial officers.

18.Section 114(1) of the Republic of Malawi Constitution provides that the Chief Justice and all other holders of judicial office shall receive a salary for their services and, on retirement, such pension, gratuity or other allowance as may, from time to time, be determined by the National Assembly. Section 114(2) of the Constitution provides that the salary and any allowance 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.

19.Section 114(1) of the Constitution therefore bestows on the National Assembly the responsibility to determine terms and conditions of service for judicial officers.

20.Please note that section 48(3) of the Constitution of the Republic of Malawi provides that any question proposed for decision by the National Assembly ‘shall be decided by a majority of votes of the members present and voting, unless this Constitution or any other Act of Parliament otherwise provides.’ The determination of the terms and conditions of service of judicial officers is one such questions for decision, and this, as section 48(3) of the Constitution provides, must be decided by a majority of votes of the members present and voting, unless the Constitution or any other Act of Parliament otherwise provides. Decisions that are to be made after voting are introduced through motions where members vote for or against the matter put for decision or determination.

21.There is an argument that has been raised elsewhere that the National Assembly has the power to regulate its own procedure and that therefore it was competent to delegate the approval of the conditions of service to a Committee. Please note that section 56(1) of the Constitution which deals with the National Assembly’s right to regulate its own procedure states that this power is ‘subject to this Constitution.The power to regulate its own procedure is therefore made subject to other provisions of the Constitution. Section 56(1) of the Constitution must therefore be read subject to sections 114(1) and section 48(3) thereof and when this is done, the inescapable conclusion is that Standing Orders cannot give the National Assembly the power to delegate to a Committee a question which the Constitution expressly provides must the dealt with by the entire National Assembly in plenary.     In other words, the Standing Orders cannot override section 48(3) and arrogate to a Committee the power to determine, by voting on a motion, terms and conditions of service for judicial officers when such power is by section 114(1) vested in the National Assembly.

22.I have also had the chance to consider section 56(6) of the Constitution which states that Parliament may establish any committees of its members and may form joint committees for the scrutiny of legislation and performance of other functions, except voting on motions and Bills. I am not persuaded that this provision gives Parliament the right to delegate to a Committee the determination of conditions of services of judicial officers since that function is expressly left in the hands of the National Assembly. True, the National Assembly may ask a Committee to study or scrutinize terms and conditions of service of judicial officers but once it does this, the Committee must report its decision to the National Assembly for the National Assembly to vote on iton a motion and adopt or reject it. The decision to adopt or reject the conditions of service will be one such matter requiring a decision through voting – that is, through a motion, as it were. Committees of Parliament are barred from voting on motions under section 56(6) of the Constitution. Thus, Committees of Parliament can only scrutinize the proposed conditions and make a recommendation for their adoption to the National Assembly which will then, by a motion under section 48(3) of the Constitution, adopt or reject them.

23. I have carefully considered the decision of the High Court in The State and President of the Republic of Malawi, Minister of Finance and Secretary to the Treasury, ex parte Malawi Law Society.1I observe that though the learned judges discussed section 114(1) of the Constitution in relation to section 56(1) of the Constitution and observed that section 56(1) provided that the power of the National Assembly to regulate its own procedure was made subject to the Constitution, their lordships did not discuss the effect or impact of section 48(3) of the Constitution on this power to regulate procedure or to delegate. I am quite confident that if their attention had been drawn to section 48(3) of the Constitution, and perhaps also to section 56(6) thereof, the learned judges would have concluded that much as section 56(1) grants the National Assembly the power to regulate its own procedure, this power must be affected by other provisions of the Constitution including section 48(3) which is couched in mandatory terms, using the word ‘ shall’, to require that any question which is proposed for decision by the National Assembly, and this includes the determination of the terms and conditions of service of judicial officers, shall be decided by a majority of the members of the High Court, PR, Constitutional Case Number 6 of 2006.

National Assembly present and voting unless the Constitution or an Act of Parliament, provides otherwise. This means that the determination of the terms and conditions of service of judicial officers can only be done by the National Assembly and not a Committee thereof unless an Act of Parliament or the Constitution provides otherwise, and Standing Orders are not an Act of Parliament.

24.The conditions of service that the judicial officers are basing their demands on were made in 2012 and were approved by the Public Accounts Committee of the National Assembly that year. There is no record that they were approved by the National Assembly itself. The said conditions provide for payment of housing allowances and also for salary increments to match those in the civil service. They also deal with the issue of vehicles.

25.There clearly is no approval of the conditions of service by the committee of the whole house.

26.Where the Constitution demands that a thing be done by the National Assembly, or by a Committee thereof, it expressly states so. For example, the appointment of the Director of Public Prosecutions is subject to confirmation by the Public Appointments Committee of the National Assembly under section 101(1), whilst the appointment of the Inspector General of Police is subject to confirmation by the National Assembly ( section 154 (2)); the same is the case with the Chief Justice (section 111(1)). Expressio unius est exclusio alterius. It is the National Assembly that section 114(1) mentions and not a Committee therefore. Further, the maxim delagatus non potest delegare would apply to prevent the National Assembly sub delegating, without express authority, the power to determine the conditions of service for judicial officers.2

27.Hence, where, in section 114(1) the Constitution stated that Conditions of Service of judicial officers be determined by the National Assembly, determination thereof by a Committee of the National Assembly would not suffice. I know of no Act of Parliament that allows the National Assembly to delegate to a Committee, the determination of terms and conditions of service for judicial officers which is a matter which the NationalAssembly is constitutionally mandated to decide by itself.

28. I have not been shown any Hansard where this was done. However, even if there was such delegation, such delegation would be unconstitutional as running against the express provisions of section 114(1) as read with section 48(3).

29.The determination of terms and conditions of service may, viewed critically, not be dissimilar to a law making function as the terms and conditions have the status of legal provisions governing the employment status of the judicial officers. At the very least, it is legislative and not administrative action.3 Law making or ‘legislative powers’ are not easily delegable unless there is an express provision for that. See the South African case of Aluchem (Pty) limited v Minister of Mineral and Energy Affairs.

2 See Bradley A and Ewing K, Constitutional and Administrative Law ( 14th edition, Pearson Longman 2007) 733

 3 See, In Re Mary Nangwale ( High Court, Constitutional Division, Lilongwe, 2010)

 4 1985 (3) SA 626 (T) at 631H-632D; See also Minister of Health v New Clicks South Africa ( Pty) Limited 2006 (2) SA 311 (CC)

30.Hence, unless the terms and conditions of service for judicial officers are approved by the NationalAssembly, they are not binding.

31.There is then, the Settlement Agreement. To begin with, this Agreement did not provide for housing allowances. Therefore it cannot be relied upon to legitimize the demand for housing allowances by either judicial staff or support staff. Secondly, in as far as the support staff are concerned, the negotiated terms of the Settlement Agreement did not emanate from the Judicial Service Commission and the Minister of Finance was not a party to the Settlement to the Settlement Agreement and did not append his signature to it. Therefore its term that every time civil servants get a salary increase the support staffhave to be similarly treated cannot be said to be a new term and condition of their employment as it did not emanate from the Judicial Service Commission or receive the approval of the Minister of Finance as the Judicature Administration Act demands. Parties, except those permitted by statute, cannot agree to override express terms of a statute as to who shall determine conditions of service for support staff.

32.In as far as the judicial officers are concerned, the Settlement Agreement cannot be taken to establish terms and conditions of their employment. To begin with, the Chief Secretary does not have the power under section 114(1) of the Constitution to settle terms and conditions of service for judicial officers. These can only be set by the National Assembly. Secondly, the Agreement was premised on the mistaken belief by both parties that there were duly approved terms and conditions of service for judicial officers in 2012. This, simply, was a mistake by both sides as the National Assembly did not approve any terms and conditions of service for judicial officers in 2012. Such a mistake cannot legitimize terms and conditions of service that, going by the Constitution, are supposed to be settled by the National Assembly alone. Parties, the government inclusive, have no power to override express peremptory Constitutional provisions. That would be contrary to the dictates of constitutionalism and the rule of law. To do so would be contrary to section 4 of the Constitution which makes Constitutional provisions binding on all organs of government. Further, section 5 of the Constitution provides that any Act of Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid. Hence, the settlement of terms and condition of service of judicial officers by the Chief Secretary through the Settlement Agreement was invalid for as long as these were not done or approved by the NationalAssembly.

33.In conclusion therefore, the demands by both the judicial officers and the junior staff do not have legal validity or basis.

E.Second Issue- Proposed Way Forward on the Salary and Housing Allowance Issues.

34.That said,for the support staff, the Minister of Finance will have to make his decision on the proposed terms and conditions of service and communicate the same to the Judicial Service Commission as soon as possible. It is my suggestion that he does this by 5th January, 2015. Once that is done, the country will have binding and definitive conditions of service for support staff in the judiciary. The Minister is not bound to approve all the suggested conditions but may, with reason and justification, reject, modify or alter some of the proposals.

35.For judicial officers, their proposed terms and conditions of service that were approved by a Committee of the National Assembly will, in keeping with sections 48(3) and 114(1) of the Constitution, have to be tabled for consideration by the National Assembly at its February, 2015 meeting. Government is advised to put these issues on the agenda for that meeting of the National Assembly. Likewise, the National Assembly may approve all, or some only and may amend or alter some others of the proposals.

36.Government is hereby advised to implement whatever terms and conditions the NationalAssembly will have approved for judicial staff and whatever terms and conditions of service proposed by the Judicial Service Commission that the Minister of Finance will have approved.

1. The Legality of the strike action and whether wages can be withheld for striking officers if the strike is illegal

37.I am aware that the support staff in the judiciary have gone on strike. However, I have been reliably informed that they did not engage or exhaust the conciliation procedures under section 44 of the Labour Relations Act. Section 46(2) of the Labour Relations Act states that a party may not take action by way of a strike or lockout action if, among others, the procedures set out in section 44 have not been complied with. Hence the strike is an illegal one.

38.The same observation applies to the intended strike by the judicial staff as they and Government, have not exhausted the section 44 procedures yet.

39.Under section 48 (b) of the Labour Relations Act, where a strike or lockout takes place in conformity with the Act, the contract of employment with respect to each employee involved in the strike or lockout shall not be deemed to have been breached by reason only of that action. What this implies is that strikes that occur in contravention with section 44 of the Labour Relations Act are done in breach of a contract of employment. The result is that the employer, in this case Government, will under section 56(3) of the Employment Act, be at liberty to invoke disciplinary measures against such staff who are on strike illegally and such action, may include a withholding of wages because, at common law, wages are paid in consideration for work done and where labour is withheld unlawfully and unprocedurally, the employer will have no obligation to pay wages.

40. My proposal arising from the above therefore is that Government may wish to write the striking staff and those that intend to go on strike, to resume normal duties by a set date pending the reference of the matter relating to judicial staff terms and conditions of service to the National Assembly and, for the support staff, pending the decision on their proposed terms and conditions of service by the Minister. Government may wish to allude to the illegality of the strike actions and the disciplinary options it has should the staff opt not to report for duties by the set date.

Please be guided accordingly.

Kalekeni Kaphale.

19/12/14.

Follow and Subscribe Nyasa TV :

Sharing is caring!