Malawi Law Society (MLS) has objected to a proposal that a body outside Parliament should deliberate perks of judges and judicial officers fearing this would jeopardise the separation of powers and independence of the Judiciary.
The Law Society’s fears stem from the pending tabling of a bill, Constitutional (Amendment), 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 currently appearing on the Order Paper.
According to Bill no 22, the NRC’s mandate will be to receive and determine remuneration proposals from a public body and also advise government determination of the equivalents of grades and scales.
In a statement released yesterday and co-signed by MLS president Khumbo Soko and secretary Michael Goba Chipeta, the Law Society said since the NRC will be an organ of the Executive with seven of its 11 members appointed by the President, its independence was questionable.
Reads the statement: “It is the view of the Society that the proposed amendment to Section 114 cannot be said to be merely cosmetic. It materially unsettles the scheme carefully put in place by the framers of the Constitution to secure the independence and financial security of judicial officers so as to affect the substance or effect of the Constitution.
“This nation, rather sadly, is not short of examples of constitutional and statutory offices that have been guaranteed operational independence under law, but which in reality or at the very least in appearance do not enjoy such independence.”
He said MLS feared that the process of making recommendations to Parliament on perks of the judicial officers would open the judiciary up to improper influences.
Additionally, in objecting to the amendment, MLS states that there would be need for a national referendum because the change would affect the substance of the Constitution.
Section 114 is listed in the schedule to the Constitution as one that can only be amended by Parliament after a national referendum or subject to the Speaker certifying that the amendment would not affect the substance of the Constitution.
However, Civil Servants Trade Union (CSTU) has countered that the bill was drafted to look into salary disparities of public servants including judicial officers.
“This bill promotes harmonisation of salaries and remove disparities amongst public servants. The good thing is that the commission will comprise all three arms of the government,” CSTU general secretary Madalitso Njolomole said.
The bill has been in development since 2012 taking on various names among them Public Service Remuneration Board Bill.