Chief Justice Andrew Nyirenda has written Speaker of the National Assembly to register his “strongest disapproval” of the proposed amendment to the Constitution which would remove the mandate of the Legislature to recommend remunerations of the Judiciary.
The government is due to table the Constitutional (Amendment) Bill to amend Section 114 of the Constitution that salaries of judicial officers should be determined on the recommendation of the National Remuneration Commission (NRC)’.
The NRC will be established through the National Remuneration Commission Bill.
“Section 114 and related provisions were deliberately entrenched and placed in the National Assembly to uphold and protect the rule of law and the independence of our Judiciary. We should be wary and at any rate avoid weakening that fabric,” reads the letter dated December 13 2017 signed by Chief Justice and copied to the Ministry of Justice.
The letter further states that the move would be tantamount to undermining the doctrine of separation of powers and the authority of the National Assembly.
The Chief Justice also said the Judiciary was not consulted on amending Section 114, but only Section 194 of the Constitution to introduce a new chapter on Public Service Remuneration.
In the letter, the Chief Justice also argues that Section 114 is not subject to amendment unless through a referendum or the Speaker has certified that the amendment would not affect the substance or effect of the Constitution.
“In the instance case, the proposed amendment affects the substance of the Constitution. The inevitable practical effect of the referendum is that the National Assembly would not on its own determine conditions of service for judicial officers. The National Assembly would have to wait and depend on recommendations of the National Remuneration Commission,” he writes.
Meanwhile, the High Court in Lilongwe has granted an injunction to Mzimba West legislator Harry Mkandawire, restraining government from tabling the Bill.
The injunction has been directed at the State with Speaker of National Assembly, Minister of Justice and Leader of the House as respondents.
Granting the injunction, Justice Chifundo Kachale ordered that it would be in effect pending a judicial review.
Malawi Law Society has also called on government to keep its hands off the Judiciary as the amendment would unsettle the scheme put in place by the framers of the Constitution to secure the independence and financial security of judicial officers. n