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Jurists commend Muluzi on Judges
By
Gedion Munthali - 19-08-2002 |
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The International Commission for Jurists (ICJ) has commended President Bakili Muluzi for throwing out a petition from Parliament to fire two High Court judges, George Chimasula Phiri and Dunstain Mwaungulu on May 4 this year on grounds of incompetence and misconduct.
In its final report of a fact-finding mission and trial observation to Malawi, ICJ wrote on its website (www.icj.org.article.php?sid=189) that Muluzi’s decision was a momentous one for upholding independence of the judiciary and rule of law in Malawi.
“ICJ wishes to commend the positive decision of President Muluzi and the Chief Justice (Richard Banda) who acted in an independent, impartial and judicious manner,” said ICJ in its 87 page report based on two ICJ missions to Malawi to investigate attacks on the independence of the judiciary and the rule of law.
“This decision augurs well not only for the people of Malawi but for the entire region which will look to Malawi as an example in upholding respect for the independence of judiciary and rule of law.”
The ICJ, a body of international jurists throughout the world, notes that the case against the judges was problematic as it did not attempt to invoke normal appellate procedures provided by the Constitution.
“Thus, rather than appealing the rulings of the High Court to the Supreme Court, certain MPs chose to short circuit the process and debate removal of the judges in Parliament without the presence of the ‘accused’ and without the possibility of hearing evidence,” says the report.
When the Parliament passed the motions in November 2001, it petitioned Muluzi to remove the judges. But he instead left the matter to the consideration of Judicial Service Commission (JSC), after which he was to make his decision based on its findings.
The report reveals that the JSC hearings of the judges took place on January 16, 2002 at judges boardroom at the High Court in Blantyre. Four out of the five members of the commission attended, the fifth having been ill and in hospital.
Two of the four members were judges: the Chief Justice as chair of the JSC and a judge of Supreme Court of Appeal. Justice Mwaungulu and Justice Phiri attended together with their defence lawyers Edwin Glasgow QC from the United Kingdom and two local attorneys: Temwa Nyirenda and Mordecai Msisha.
The report says formal charges or complaints were drawn or presented by the JSC, or to the JSC. “Indeed, no “Complainant” appeared or attended to urge the complaints. No person formally attended on behalf of Parliament or the Attorney General even though the Chief Justice confirmed to ICJ observer that they had both been notified.”
The report says that in the absence of a complainant, or properly framed charges, the defence teams took the position that there was thus nothing to investigate or proceed with and the matter should have stopped there. Without prejudice to that position, says the report, the defence proceeded with submissions.
“In a 13 page opening address Mr. Glasgow submitted, among other things that the entire process was illegitimate, unconstitutional and in total disregard to the rules of natural justice and the JSC could not legitimise the process.
“In further defence, Mr. Nyirenda and Mr. Msisha, echoed this argument. |
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