Parly breached separation of powers - Law Society
MBABANE – The Law Society of Swaziland has accused Parliament of breaching the separation of powers.
This the society said, Parliament did by setting up the select committee to investigate lawyers for alleged fraud and misuse of funds for members of the public.
Advocate Barry Skinner yesterday said the constitution stipulated that there should be a separation of powers between the three pillars of government which are the judiciary, Legislature and executive.
He said by seeking to investigate lawyers’ conduct the Parliament select committee usurped duties for the judiciary or that of judiciary tribunals.
Advocate Skinner said the legislature’s purpose was to make laws, but the committee had been set up to investigate allegations of unprofessional conduct of lawyers, suspected of mismanaging trust accounts and enriching themselves through fraudulent means.
He argued that the select committee chaired by Ludzeludze MP Nonhlanhla Dlamini was never mandated to amend laws that govern lawyers’ conduct and practice.
He said it was not for the legislature to usurp the functions of the judiciary or tribunals set up in terms of legislation passed by parliament.
"The terms of reference of the select committee do not suggest that there should be any change in any laws, but on the past conduct of lawyers," he said.
He also submitted that it was stipulated in law that lawyers should furnish the Attorney General Majah-enkhaba Dlamini, which they do, with Fidelity Certificate and statements of trust accounts. He, therefore, said there was in place, a duly appointed person who checked if lawyers complied with the laws and Parliament cannot just take over those powers.
"The Legal Practitioners Act of 1964 as amended in 1988 provides for specified disciplinary procedure, the High Court may strike off or suspend a legal practitioner, but otherwise for the purpose of exercising disciplinary control, there is hereby established a disciplinary tribunal," Skinner said.
He said the disciplinary tribunal conducts an inquiry into whether an attorney has been guilty of professional misconduct. He said the clear meaning of the legislation was that the tribunal and ultimately the High Court served as disciplinary bodies for lawyers.
The appointment of the select committee abrogated the powers of the disciplinary tribunal.
"It is submitted that in doing so, Parliament, through its committee, is no longer functioning as the legislature, but in a quasi judicial manner, which is therefore impermissible," Skinner said.
Meanwhile, Senior Crown Counsel Mndeni Vilakati said a Select Committee set up by parliament had wide investigatory powers. He said the committee set up to investigate lawyers’ conduct was intended by parliament to see if the statutory skill was still working as it had been intended.
"The applicant (Law Society of Swaziland) has not shown in its papers that unless the committee is stopped it will be remediless. The committee’s process will only be complete once it has finished its mandate. It is not true, I submit, that its work was complete when the select committee was set up as the applicant said," Vilakati said.
He also argued that the law society had initially sought to set aside the committee, not challenged the terms of reference.
He also said the Attorney General was not responsible for the lawyers’ Fidelity Fund, as the law society of Swaziland had said.
He said such was the duty of the law society.
He said the AG did not have disciplinary control over lawyers, but it was the disciplinary tribunal of the Law Society of Swaziland.
Judgment on the matter was reserved until further notice.
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