Supreme Court Judge Dunstain Mwaungulu is not giving in to a High Court order that he should not comment on live court cases on Facebook saying he has a right to do so.
In his order on the Norman Chisale’s Assets case to the Chief Justice for certification, High Court Judge Mike Tembo severely reprimanded Mwaungulu for taking live judicial matters to the social media, particularly on his Facebook page.
He said such court matters have the potential to end up in the Supreme Court of Appeal where Mwaungulu currently sits.
“The habit is untenable, objectionable and unbecoming to say the least,” said Tembo.
However, the order seems to have displeased who has accused Justice Tembo of not hearing his side.
Mwaungulu said the venerable Judge’s action is aimed at gagging him “for something I do not do and never have done – commenting on pending cases”.
“The venerable judge, on his own admission, says that my “comments” were made after a judgment or order was given. There was, therefore, on the point raised in the judgment anything pending before any court.
“A judgment or order of the High Court, once delivered, is law like any other. It still remains – a precedent – bonding and persuasive. It is not, for precedent, not pending because there is an appeal. The Supreme Court, the High Court and subordinate courts can cite it. As law, anyone, including judges can comment on it. Judges can read it, cite it and comment on it I’m court and outside court.
“I did not comment on a pending case but the law which the judgment was. But my question was on the Act which provides that these proceedings are civil. And that is all I asked. The comments were an answer to a very neutral question in the Act – not pending case.
“My question was so important that counsel raised before the venerable judge. The counsel were so profound and thorough that the matter has been resolved. Actually, I should be thanked for raising the question. Instead, I am punished and at that WITHPUT BEING HEARD.
” never as in ever comment on pending cases. I comment on delivered judgments and orders because in themselves and by themselves are law,” Mwaungulu said.
On March 1, 2021, Mwaungulu wrote on his Facebook page where he wondered whether the Director of Public Prosecutions (DPP) can institute civil proceedings.
This is the same argument Chisale’s lawyer Chancy Gondwe posed before Judge Tembo, before granting an order for a judicial review on the matter.
“This Court wishes to put on record that it has observed that after the preservation order was granted herein, one member of the Malawi Supreme Court of Appeal Justice Dunstain Mwaungulu, who is currently outside the jurisdiction and has been for quite a while, made a comment on his Facebook page asking the question whether the claimant could proceed to obtain the order herein.
“With the greatest respect to the sitting Justice of Appeal, and an eminent Justice for that matter, it is the view of this Court that his commentary on this ongoing matter does not sit well with his duties as a sitting member of the appellate court where any appeals in this matter might be heard,” noted Tembo.
Tembo observed that so far there has not been any official censure of Justice Mwaungulu’s commentary not only in the present matter but also on the Constitutional Reference matter number 1 of 2019 between Dr Chilima and Another v Dr Mutharika and Another in relation to which Justice Mwaungulu made many comments including some misleading and astonishing comments, such as that the Electoral Commission is part of the Judiciary.
“This Court wishes to politely excoriate Justice Mwaungulu for his habit of commenting on live court matters in this Court which have the potential to end up in the Supreme Court of Appeal where he currently sits. The habit is untenable, objectionable and unbecoming to say the least.
“The General Code of Conduct for Judicial Officers in Malawi as approved by Parliament as the Eleventh Schedule to the 2012 Approved Conditions of 23 Service for Judicial Officers, and to which Justice Mwaungulu is subject, makes clear in clause 2 (6) that it is improper for a judicial officer to conduct himself in any way objectionable or unbecoming to the proper discharge of his duties.
“Commenting on ongoing matters which are before the High Court on Facebook is, clearly on the face of it and in the humble view of this Court, objectionable and unbecoming to the proper discharge of the duties of the Justice of Appeal,” he said.
Further, Tembo said although a judge, like any other citizen, is entitled to freedom of expression, belief, association and assembly, but in exercising such rights, a judge shall always conduct himself or herself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.
“Justice Mwaungulu’s commentary in relation to the present matter also contravenes Principles 2.4 and 4.6 of the Bangalore Principles as well in that he made his comments herein without any restraint and yet the matter was yet to come before this Court and has the potential to come before the Malawi Supreme Court of Appeal on which he sits and the scenario he has created runs counter to the preservation of the dignity of the judicial office and impartiality and independence of the judiciary.
“In the foregoing circumstances, this Court would like to appeal to Justice Mwaungulu to cease and desist from making public comments on Facebook as he did in the present matter since his comments run counter to his duties as a sitting member of the Supreme Court of Appeal given the potential that matters on which he comments as they are before this Court may later come for hearing before the Supreme Court of Appeal.
“It is rather regrettable that this Court is compelled to address this matter as it does since it could not respond on Facebook and this Court believes this should be recorded for posterity for what it is worth,” he said. (SOURCE: Atlasmalawi.com)
