The Malawi Law Society (MLS) has taken the issue of paralegals, who want some provisions of the Legal Aid Act amended so that they can be representing clients at subordinate court level, to the High Court.
The society has applied for leave of judicial review on the issue.
This comes at a time the Legal Aid Bureau has proposed to Parliament to amend Section 14 of the Legal Aid Act to allow paralegals to practice in subordinate courts. The bureau has indicated that there is a backlog of 23,000- plus cases but it only has 25 lawyers and 36 paralegals in its books.
The Legal Affairs Committee of Parliament on Wednesday indicated that it would present a report to Parliament after consultations with stakeholders.
In the latest development, however, MLS has sought the court’s intervention on the issue.
A statement from the MLS Executive Committee to its members says the application for leave of judicial review has been filed with notice— meaning that the application was also served on the respondents who are Chairperson of the Legal Affairs Committee of the National Assembly and the Legal Affairs Committee itself.
“To avoid curtailing any public debate while seeking binding legal guidance on legal issues noted by the executive, we have filed a With Notice Application for Permission and are not for the time being seeking any stay or injunction. Our hope is that the court will give the permission and provide a relevant guide to Legal Affairs Committee of Parliament in time,” reads the letter dated September 16 and signed by Honorary Secretary Chrispin Ngunde.
MLS wants the court to determine whether the respondents have correctly appreciated and discharged their duties under Standing Order 159 in deciding to receive a referral from the Legal Aid Bureau and purporting to institute and conduct public hearings across the country, soliciting public views on a proposal by the Legal Aid Bureau.
“The applicant’s position is that, in the circumstances hereof and on the true reading, purpose and intent of the several constitutional and statutory provisions referred to in the application herein, the respondents have completely and remarkably failed to appreciate and/or to discharge their duty and have proceeded without any jurisdiction contrary to public interest reflected in the law,” the grounds read.
MLS argues that it has sufficient test to commence the judicial review, saying it is a statutory body established under Section 63 of the Legal Education and Legal Practitioners Act.
“As a result of this nature of the legal profession, the applicant’s mandate is set out in Section 64 of the Legal Education and Legal Practitioners Act to primarily ensure the protection of the public under the rule of law,” the grounds read.
High Court Judge Michael Tembo will hear the motion on October 7 this year.