De-throning the Omnipotent Ex-Parte: Why There is Nothing Wrong with the Injunctions Bill

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Pic By Z. Allan Ntata | I Think I Think

Demagogue; noun: One who will preach doctrines he knows to be untrue to men he knows to be idiots”- H.L. Mencken.

INTRODUCTION
On 16th June 2011, Parliament passed the Civil Procedure (Suits by or Against the Government or Public Officers) (Amendment) Bill popularly known as the Injunctions Bill, which is meant to prohibit the court from granting ex-parte injunctions against government. It states that the court shall not, in any proceedings against the government or a public officer, grant relief by way of an injunction if the application for such relief was made ex-parte.

Following the amendment and subsequent assent by the state president, the procedure of granting an injunction against government will require serving the Attorney General (AG) with notice and evidence that support the injunction application. Should the AG fail to appear before the court for the inter-parte hearing, an ex-parte injunction shall be granted to the applicant. The Honourable Minister of Justice, Dr George Chaponda, has on several occasions explained that government does not intend to stop injunctions but simply desires that before an injunction is granted against government officer, government should also be heard. The AG is supposed to be heard through an inter-partes hearing within three days from the day of being served with the notice.

The government subsequently has been a target of very strong, if misguided, criticism over the matter. Prior to the passing of the bill, Thyolo Thava MP Lifred Nawena said the new procedure would deny the people an important relief. He further said that an individual seeks for an injunction when he or she has been trampled upon by government. Others joined the bandwagon, including some other members of Parliament who tried to convince Parliament to send back the bill. Hon. Cassim Chilumpha and Hon. Khumbo Kachali said that the bill, if passed, would send the country back to an era of dictatorship.

This view had somewhat been pioneered by the chairman of the Legal Affairs Committee of Parliament. In winding up his jeremiad on his committee’s report, Hon. Henry Duncan Phoya warned of what he referred to as “far reaching consequences” and that the bill would deny people their civil liberties. The Honourable Member claimed that the bill affects the right to effective remedy and also the need to have an input from the Malawi Law Commission. He prophesied of an idea of what sort of Malawi all of us would have if this bill were enacted, claiming that this is a piece of legislation which takes away a temporary relief people may get from the courts.

On 20th June 2011, The High Court in Lilongwe granted an injunction restraining the President from assenting to the Bill.

Malawi Catholic Commission for Justice and Peace (CCJP), Centre for Human Rights and Rehabilitation (CHRR), Centre for Development of People (CEDEP) took the matter to court through lawyer Wapona Kitta of Ralph, Arnold and Associates. They were joined in this quest by the Human Rights Consultative Commitee, (HRCC), CCAP Synods of Livingstonia, Nkhoma and Blantyre, and Centre for Legal Assistance.

Justice Ivy Kamanga, in granting the applicants an injunction restraining the President from assenting into law the Civil Procedure (Suits by or Against the Government or Public Officers) (Amendment) Bill, 2010 considered that the Bill abridges the right of access to justice and effective remedy as enshrined in the Constitution. The learned judge ruled that the Injunctions Bill should not be signed into law “until the final determination of a judicial review.”

The organisations attacking the Bill claim that the Bill exemplifies a tendency of the DPP government’s blatant abuse of its majority in Parliament to pass draconian laws designed to safeguard narrow and selfish interests of the political leadership at the expense of the broader interests of the Malawian citizenry which the government is mandated to serve.

To ensure that the Malawian Public is not misled by this paltry and hollow demagoguery, it is imperative that the shambolic arguments presented against the Bill are properly exposed.

THE GREAT DECEPTION
Malawians are being played for fools. Malawians are being deceived. Those criticizing the bill have presented the argument in such a way as to suggest that the Bill seeks to take away the legal temporary relief that individuals may otherwise have against the State. This is a deliberate misrepresentation of the facts.

Any honest analyst who has studied the amendment would agree that the bill simply seeks to address an imbalance that is causing great distraction in the operations of government. This it seeks to achieve by ensuring that Government is always aware of Injunctions that are sought at the courts against it. In this way, Government can have an opportunity to present its side of the case and thereby avoid numerous disturbances in various development works.

As argued in a separate forum by this same author, the remedy of the ex-parte injunction is being grossly abused in this country. While an Injunction is meant to be only a temporary relief, in Malawi, an injunction, especially an ex-parte injunction against the government, has somehow ascended the throne to become often a “be all and end all”- a permanent relief. What the faultfinders have deliberately not told Malawians in their quest to gain podium advantage is that ex-parte injunctions against the government, which, after being obtained as temporary emergency relief, frequently end up becoming permanent solutions, have the detrimental effect of sabotaging essential government operations. Through ex-parte injunctions, the government finds itself derailed from the very operations that in fact keep the country on the road to prosperity.

But this deception, this withholding of facts whether deliberately or out of sheer daftness, is not even the worst part of the story.

Critics of this bill have stood up on the Parliamentary floor, the church pulpits and indeed at the Bar of our courts propagandizing and preaching the assertion that this Bill violates human rights as enshrined in our constitution. A careful study of the constitution reveals that the constitutional right in question is the right of access to justice and legal remedies. Section 41(3) of the Constitution states that “every person shall have the right to an effective remedy by a court of law or tribunal for acts violating the rights and freedoms granted to him by this constitution or any other law.” The critics have invoked no other rights and it is submitted that if there are indeed any such rights, they do not have a direct bearing on the matter of the injunctions bill. As such, this discussion focuses on this particular human right.

In this regard, the question that must therefore be pursed is this: Does the Injunctions Bill really infringe the right of access to justice and legal remedies? In other words, does requiring that injunctions against the government only be obtained through inter-parte process deny people an important relief- as asserted by Hon. Lifred Nawena; or send the country into a dictatorship- as alleged by Hon. Chilumpha and Kachali? Or does such a requirement take away a temporary relief available to individuals against the State as claimed by Hon. Phoya? Does this requirement make the Injunctions Bill a draconian law and demonstrate the DPP’s abuse of parliamentary majority- as pleaded by the NGO’s that sought to restrain the President from assenting to the bill?

Before offering an offhand response, it is important and necessary to honestly and objectively examine the evidence.

The Injunctions Bill does not outlaw injunctions against the government.

This is an important statement of fact. Misguided critics and careless writers have deliberately disregarded this point and presented an impression that with the passing of this bill, the injunction as a legal remedy will be a thing of the past. This is simply not the case at all.

The injunction as a legal remedy represented in section 41(3) of the constitution is still very much alive and well.

What the Bill has done is to simply regulate the procedure for obtaining the remedy. Let it be noted that the injunction as a legal remedy is not actually mentioned in the constitution. What the constitution protects is the right of every Malawian to an effective legal remedy. The Bill does absolutely nothing to dilute let alone extinguish this important human right.

It may be argued that the Bill, in requiring such injunctions to be obtained inter-parte renders the remedy less effective and therefore violates the constitution in this regard. This argument is at best irrational. The argument presupposes that such a requirement means that it will take longer to obtain the remedy. But such a view also suggests that all this protest about the Bill boils down to a matter of the speed at which an individual can obtain an injunction against the government. This may perhaps be in consideration of the fact that most injunctions against the government have in the recent past been obtained quickly, in secret, at night and in some cases at a judge’s home. If this is the worry then all that is necessary is for the critics to require the government to give them an assurance that in the new dispensation, speed will not be compromised, and that government lawyers will always have to be available to attend such secret hearings.

In any case, the Bill requires the Attorney General to present himself for an inter-parte hearing within three days, failing which an ex-parte injunction will be given anyway. This was done deliberately to ensure that the right to an effective remedy is properly safeguarded. Legal practitioners will surely agree that in the general Malawian legal order, three days is practically the speed of light.

It has been suggested that the Bill abridges the right to effective legal remedy. This line of reasoning is surprising to say the least. If anything, this Bill seeks to ensure that the natural fairness that has been usurped by the abuse of a legal provision, thereby threatening its usefulness, is returned to judicial practice. Further, to argue that the Bill abridges the said constitutional right is to desperately misunderstand the constitution. The Bill endeavors to re-define the manner in which a remedy will be obtained. This is not abridgement by any definition or stretch of the imagination.

As for the assertion that the Bill is an example of the DPP administration abusing its Parliamentary majority to pass draconian laws, it must be stated that this sort of criticism is irresponsible and, to the extent that it is misleading in the worst degree, downright repulsive. Perhaps the rhetorical question that must be asked here is simply this: Which law is more draconian? A law that becomes vulnerable to abuse because it allows secret orders to be obtained after a tribunal hears only one side of the story, which is what the critics seem to be advocating, or one that endeavors to curb potential abuse of process and protect the justice system by requiring a tribunal to hear both sides of the matter and give an order only after a careful consideration of arguments and positions from both sides?

The answer to this question is obvious. If this article is anything at all, therefore, it is an appeal to all sensible Malawians not to be swayed by the sort of pathetic and obviously hollow loquaciousness that has somehow found prominence in this debate! Such urgings bank their hopes on a belief that Malawians will simply listen and swallow it all up without intelligently weighing the substance of the argument. This is a call to all Malawians to prove such notorious assumptions wrong. Cheap propaganda and empty oratory should surely have no place the 21st century Malawi.

CONCLUSION
The right to effective legal remedy should not be elevated to the heights of becoming sacrosanct. It is not an absolute right. It is subject to limitations that are necessary in an open and democratic society. Honest legal and political analysts will admit that the government has for a long time been victimized by the abuse of the ex-parte injunctions. It is high time something was done about the notorious abuse the remedy had become subjected. The standards and canons of justice and fairness upon which our society depends needed desperately to be intrepidly and gallantly preserved.

Once again, any notion that this article is opposing the criticizing of a properly legitimate government must be quickly dispelled. As stated elsewhere, criticism is good, but only when it is constructive criticism; not criticism for criticism’s sake. In our criticism and analysis, it is important to remember that governing is the art of making difficult choices, and that the needs of government will constantly have to be balanced against those of the individual.

Rubble-rousers and agitators have presented disturbingly one-sided arguments against the Injunctions Bill to the extent that they have misled not only the general Malawian public, but also individuals that really should know better. Their stentorian yet infamous chorus unfortunately has been echoed by society leaders and even been adopted by stalwarts of our legal and moral systems. This is calamitous indeed. These criticisms ought to have long been dismissed for the gobbledygook and the jibber-jabber that they are.

Substance, objectivity and honest analysis are what separate the demagogue from the truly inspired.

By Z. Allan Ntata

About Author:

[author] [author_image timthumb=’on’]http://2.bp.blogspot.com/_5iDmYR5Dnfw/ShJNYHVNSFI/AAAAAAAAACU/ZcaPRURO5VQ/S220/Photo+39.jpg[/author_image] [author_info]It might interest some to know that after miserably failing to forge a career in Music and football, I finaly found refuge first in Laboratory medicine, then in Law. I have been thrown all over the place by life that sometimes even I forget whether where one has been really matters in life! I tend to think that where one is going matters more- and I am going right ahead![/author_info] [/author]

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