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.

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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