CHAPTER
IX |
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THE JUDICATURE
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The
independence and jurisdiction of the courts and the judiciary |
103.
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All courts
and all persons presiding over those courts shall exercise their functions,
powers and duties independent of the influence and direction of any other
person or authority.
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The judiciary shall have jurisdiction
over all issues of judicial nature and shall have exclusive authority to
decide whether an issue is within its competence.
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There shall be no courts established
of superior or concurrent jurisdiction with the Supreme Court of Appeal
or High Court.
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The
Supreme Court of Appeal |
104.
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There shall
be a Supreme Court of Appeal for Malawi, which shall be a superior court
of record and shall have such jurisdiction and powers as may be conferred
on it by this Constitution or by any other law.
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The Supreme Court of Appeal
shall be the highest appellate court and shall have jurisdiction to hear
appeals from the High Court and such other courts and tribunals as an Act
of Parliament may prescribe.
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Composition
of the Supreme Court of Appeal |
105.
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The Justices
of the Supreme Court of Appeal shall be -
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the Chief Justice;
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such number of other Justices
of Appeals not being less than three, as may be prescribed by an Act of
Parliament.
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When the Supreme Court of
Appeal is determining any matter, other than an interlocutory matter, it
shall be composed of an uneven number of Justices of Appeal, not being
less than three.
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A Justice of the Supreme Court
of Appeal may only be appointed in accordance with section 111.
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Acting
Justices of Appeal |
106.
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If, by reason
of a vacancy of office, or by reason of the operation of section 107, there
are less than three serving Justices of Appeal, then the President may,
on the recommendation of the Judicial Service Commission, appoint judges
of the High Court, to serve as Acting Justices of Appeal.
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An Acting Justice of Appeal
shall hold that office only until such time as he or she is appointed Chief
Justice or Justice of Appeal in accordance with section 111, but he or
she shall cease to serve as a Justice of Appeal if -
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there are more than three
serving Justices of Appeal, either by reason of a vacancy or vacancies
being filled in accordance with section 111 or where such Justices of Appeal
or Acting Justices of Appeal as have been excused from serving on the Supreme
Court are able to resume their duties in accordance with section 107;
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he or she is excused from
his or her duties as a Justice of Appeal or an Acting Justice of Appeal
in accordance with section 107.
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Relief
from duties |
107.
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A Justice
of Appeal or Acting Justice of Appeal shall be excused from serving on
the Supreme Court of Appeal only for such time as is reasonably necessary
and only
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by reason of that Justice
or Acting Justice of Appeal having been a party to proceedings in a lower
court, the decision of which is being appealed to the Supreme Court of
Appeal; or
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for such other reason that
the Chief Justice or Judicial Service Commission considers would prevent
him or her from performing the duties of his or her office.
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For the purposes of this section
"a party to proceedings" shall include -
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any person exercising a judicial
function in those proceedings;
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having been retained for the
purposes of legally representing a party to the proceedings; or
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being retained for the purposes
of legal advice to party to the proceedings.
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The
High Court |
108.
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There shall
be a High Court for the Republic which shall have unlimited original jurisdiction
to hear and determine any civil or criminal proceedings under any law.
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The High Court shall have
original jurisdiction to review any law, and any action or decision of
the Government, for conformity with this Constitution, save as otherwise
provided by this Constitution and shall have such other jurisdiction and
powers as may be conferred on it by this Constitution or any other law.
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Composition
of the High Court |
109.
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The
Judges of the High Court shall be such number of judges, not being less
than three, as may be prescribed by an Act of Parliament.
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Subordinate
courts
1 of 1997 |
110.
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There shall
be such courts, subordinate to the High Court, as may be prescribed by
an Act of Parliament which shall be presided over by professional magistrates
and lay magistrates.
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There shall be an Industrial
Relations Court, subordinate to the High Court, which shall have original
jurisdiction over labour disputes and such other issues relating to employment
and shall have such composition and procedure as may be specified in an
Act of Parliament.
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Parliament may make provision
for traditional or local courts presided over by lay persons or chiefs:
Provided that the jurisdiction
of such courts shall be limited exclusively to civil cases at customary
law and such minor common law and statutory offences as prescribed by an
Act of Parliament. |
Appointment
of the Judiciary
6 of 1995
1 of 1997 |
111.
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The Chief
Justice shall be appointed by the President and confirmed by the National
Assembly by a majority of two thirds of the members present and voting.
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All other judges shall be
appointed by the President on the recommendation of the Judicial Service
Commission.
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Magistrates and persons appointed
to other judicial offices shall be appointed by the Chief Justice on the
recommendation of the Judicial Service Commission and shall hold office
until the age of seventy unless removed in accordance with section 119.
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For the purposes of this Chapter
"judicial office" means the office of -
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a Justice of Appeal or Acting
Justice of Appeal;
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a Judge of the High Court
or Acting Judge of the High Court;
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the Registrar or Deputy Registrar
of the Supreme Court of Appeal or High Court;
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a magistrate of whatever grade;
and
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a person presiding over a
traditional or local court.
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A person appointed to fill
a vacancy in the office of a Judge shall not be required, on being so appointed,
to serve in an acting capacity.
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For the purposes of this Chapter
"judge" shall mean a Justice of Appeal, an Acting Justice of Appeal, a
Judge of the High Court or an Acting Judge of the High Court.
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Qualification
of Judicial officers |
112.
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A person
shall not be qualified for appointment as a judge unless that person -
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is, or has been, a judge of
a court having unlimited jurisdiction in criminal or civil proceedings;
or
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is entitled to practise as
a legal practitioner or an advocate or a solicitor in such a court and
has been entitled so to practise for not less than ten years.
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For the purposes of this section,
a person shall be regarded as entitled to practise as a legal practitioner
or an advocate or a solicitor if that person has been called, enrolled
or otherwise admitted as such and has not been subsequently disbarred or
removed from the roll of legal practitioners or advocates or solicitors
notwithstanding that the person -
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holds or acts in any office
the holder of which is, by reason of his or her office, precluded from
practising in court; or
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does not hold a practising
certificate and has not satisfied any other like condition of his or her
being permitted to practise.
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Vacancy |
113.
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If the office
of Chief Justice is vacant, or if the Chief Justice is for any reason unable
to perform the functions of his or her office, then, until a person has
been appointed to and has assumed the functions of that office, or until
the person holding that office has resumed those functions, as the case
may be, those functions shall be performed by the most senior judge then
sitting on the Supreme Court of Appeal or High Court.
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If any judicial office is
vacant or if any judge is appointed to act as Chief Justice, or is for
any reason unable to perform the functions of his or her office, the President,
on the recommendations of the Judicial Service Commission, may appoint
a person qualified for appointment to that judicial office under this section
to act in that office.
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Remuneration |
114.
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The
Chief Justice and all other holders of judicial office shall receive a
salary for their services and, on retirement, such pension, gratuity or
other allowance as may, from time to time, be determined by the National
Assembly.
The salary and any allowance
of a holder of judicial office shall not without his or her consent be
reduced during his or her period of office and shall be increased at intervals
so as to retain its original value and shall be a charge upon the Consolidated
Fund. |
Judicial
oath |
115.
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A
person holding judicial office shall not enter upon the duties of his or
her office unless that officer has taken and subscribed the oath of allegiance
for the due execution of his or her office in such manner and form as may
be prescribed by an Act of Parliament. |
The
Judicial Service Commission |
116.
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There
shall be a Judicial Service Commission for the regulation of judicial officers
and which shall have such jurisdiction and powers as may be conferred on
it by this Constitution or, subject to this Constitution, by any Act of
Parliament. |
Composition |
117.
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The
Judicial Service Commission shall consist of - |
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the Chief Justice who shall
be the Chairman;
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the Chairman of the Civil
Service Commission, or such other member as may for the time being be designated
in that behalf by the Chairman of the Civil Service Commission;
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such Justice of Appeal or
Judge as may for the time being be designated in that behalf by the President
acting after consultation with the Chief Justice; and
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such legal practitioner and
such magistrate as may for the time being be designated in that behalf
by the President acting after consultation with the Chief Justice.
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Powers
of the Judicial Service Commission |
118.
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The
Judicial Service Commission shall have the authority to - |
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nominate persons for judicial
office;
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exercise such disciplinary powers in relation to persons
in judicial office subject to this Constitution as shall be prescribed
by an Act of Parliament, subject to this Constitution;
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recommend, subject to section
119, the removal of a person from judicial office;
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subject to this Constitution,
make such representations to the President as may be prescribed by an Act
of Parliament; and
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exercise such other powers
as are conferred on it by this Constitution or as are reasonably necessary
for the performance of its duties:
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Provided
that nothing in this section shall prejudice the right of any person in
judicial office who was the subject of any decision by the Judicial Service
Commission to appeal to the Supreme Court of Appeal against that decision. |
Tenure
of office of Judges |
119.
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Subject
to this section, a person holding the office of Judge shall vacate that
office on attaining the age prescribed in subsection (6):
Provided that the President,
after consultation with the Judicial Service Commission, may permit a Judge
who has attained that age to continue in office for such period as may
be necessary to enable him to deliver judgement or to do any other thing
in relation to proceedings that were commenced before him before he attained
that age.
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A person holding the office
of Judge may be removed from office only for incompetence in the performance
of the duties of his office or for misbehaviour, and shall not be so removed
except in accordance with subsections (3) and (4).
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The President may by an instrument
under the Public Seal and in consultation with the Judicial Service Commission
remove from office any Judge where a motion praying for his removal on
the ground of incompetence in the performance of the duties of his office
or misbehaviour has been-
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debated in the National Assembly;
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passed by a majority of the
votes of all the members of the Assembly; and
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submitted to the President
as a petition for the removal of the judge concerned:
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Provided
that the procedure for the removal of a judge shall be in accordance with
the principles of natural justice. |
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Where notice of intention
to introduce before the National Assembly a motion praying for the removal
of a Judge from his office has been lodged in the office of the Speaker,
the President may, where after consultation with the Judicial Service Commission
he is satisfied that it is in the public interest so to do, suspend the
Judge from performing the duties of his office.
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The suspension of a Judge
under subsection (4) may at any time be revoked by the President, after
consultation with the Judicial Service Commission, and shall in any case
cease to have effect where the motion is withdrawn before being debated
in the National Assembly or, upon being debated, is not passed by a majority
thereof.
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The prescribed age for purposes
of subsection (1) shall be the age of sixty-five years or such other age
as may be prescribed by Parliament:
Provided that a law made by
Parliament, to the extent that it alters the age at which a Judge shall
vacate his office, shall not have effect in relation to a Judge after his
appointment unless he consents to its having effect.
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Where the President considers
it desirable in the public interest so to do, he may, with the consent
of the person concerned, assign a person holding the office of Judge to
any other office in the public service for such period as the President
may determine during which that person may cease to perform the duties
of his office as Judge; but so, however, that -
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such assignment shall not
be regarded as removal of that person under subsection (2) from his office
as Judge;
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the resumption by that person
of the duties of his office as Judge shall not require formal re-appointment;
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the retirement age of that
person shall be that prescribed for Judges under subsection (1).
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