Parliament sued over paralegals

  Malawi Law Society (MLS), the lone voice opposing the amendment of the Legal Aid Act to allow legal assistants limited audience in subordinate courts, has sued the Legal Affairs Committee of Parliament over the matter.

In the case in which  chairperson of the committee is first respondent and the committee is the second respondent, MLS is seeking a judicial review of the actions taken by the committee to seek views from members of the public, among others.

The lawyers’ body, which suffered severe blows during the public debates as there was no-one on its side, appears to have come out hard to teach the committee a lesson or two and is asking the court to order the 21 members of the committee to pay costs for the case from their pockets and refund money used for the public debates, also from their pockets.

MLS registered the case on Monday and the High Court in Blantyre has set October 7 2021 to hear the motion before judge Mike Tembo.

Reacting to the action by MLS, Legal Affairs Committee chairperson  Peter Dimba said Parliament stands ready to defend its constitutional legislative mandate.

He said: “We are not really surprised with these developments because right from day one of this paralegals debate, MLS has been zealous in its quest to undermine our constitutional mandate and show contempt against Parliament while all other stakeholders we’ve met have shown overwhelming support.”

On the other hand, Danwood Chirwa, a Malawian professor of law who teaches at University of Cape Town in South Africa, said in a response to a questionnaire yesterday that the efforts by MLS have no legal basis and are indicative of heightened desperation.

He said: “Parliament and its committees cannot be the subject of judicial review as long as they are addressing matters that are legislative in nature. The issue of whether a law should be amended or repealed has nothing to do with administrative action which is judicially reviewable.

“On the contrary, it has everything to do with legislative powers of Parliament. No court can interfere with legislative deliberations. The separation of powers would be breached.”

Chirwa said the irony is that a whole organisation of lawyers has commenced such an ill-informed application before the courts. He said it makes one wonder whether it really should matter whether one is represented by a paralegal or a lawyer.

But in a written response to a questionnaire yesterday, MLS honorary secretary Chrispin Ngunde dismissed suggestions that his professional body is desperate, arguing there is no reason for MLS to be desperate.

He said: “MLS, as a legal person, has the right to approach the court for the court to exercise its responsibility of interpreting, protecting and enforcing the Constitution and all other laws in accordance with the Constitution. It is up to the court to determine if MLS has no legal basis and not otherwise.

“The law specifically provides what government agencies or organs can do or cannot do. If a government agency or organ has departed from the dictates of the law, its decision(s) can be subject to review by courts.

“It’s up to the court to decide whether our application is ill-informed or not. By going to court, we are convinced that there are  legal issues that the court needs to address for the benefit of all Malawians.”

The proposal to allow paralegals limited access in subordinate courts has enjoyed massive support from civil society and the Judiciary has also thrown its weight behind it.

In its application before the court, MLS is seeking a declaration by the court that on the true construction of sections 7, 8, 132 and 135 of the Constitution and sections 6, 7 and 8 of the Law Commission Act, the Legal Affairs Committee has no jurisdiction or authority or power to initiate policies and legislation or to conduct review or to receive submission on or make recommendations relating to amendment of laws in Malawi.

It is further seeking the court’s declaration that the committee has no jurisdiction, authority or power to initiate policies and legislation or to the conduct review or to conduct public hearings or to receive submissions with a view to making any recommendations to the Ministry of Justice and Constitutional Affairs relating to amendment of any law generally or to the amendment of the Legal Aid Act.

The lawyers body also wants the court to declare that the Legal Affairs Committee has no power or authority or jurisdiction to exercise oversight role over the Legal Aid Bureau or power to receive or investigate or make a report on referrals from Legal Aid Bureau concerning the administration of the Legal Aid Act and that such power vests in the Minister of Justice.

The lawyers body also argues that the proposed arrangement to have legal aid assistants represent vulnerable people instead of a legal practitioner is unlawful, unconstitutional and discriminatory as it seeks to abrogate the entrenched right of the vulnerable people of Malawi to due recognition before the law.

The lawyers’ body wants the court to declare actions by the parliamentary committee as misfeasance and/or abuse of public office and pleads that the judicial review should be granted and order expedited hearing of the motion.

MLS argues that the committee has completely and remarkably failed to appreciate and/or to discharge its duty and has proceeded without any jurisdiction contrary to public interest reflected in the law.

MLS says it was apparent the committee considers the matter to be a simple political issue to be resolved by popular participation of the general public which is being informed of possible advantages without full recourse to the myriad legal aspects regarding legal representation.

“The proposed amendment could take away from the less-privileged what the Constitution has actually given to them at legal representation. (i) The Constitution in Section 42(1)(c) and 42(2)(f)(v) has given to the needy the right of ‘legal representation by a legal practitioner,’” MLS argues.