LSB queries Covid-19 regulations
Goitsemodimo Kaelo | Thursday April 16, 2020 07:38
This comes after the ministry issued a press release that directed that the issuing authority in respect of permits for legal practitioners is the Registrar of the High Court in respect of litigation matters and the Ministry as regards other non-litigation urgent matters.
LSB said while in terms of the Emergency Powers (Covid-19) Regulations of 2020, legal practitioners are classified as essential, it is absurd that the ministry has subjected the granting of permits to instances which the Registrar or the Ministry, in their wisdom, deem to be urgent.
In a statement, LSB argued that the release shows complete disregard of the Regulations by introducing additional requirements that run contrary to the clearly expressed intention of the lawgiver. It also said the LSB should be allowed to regulate it’s members as regards permits.
“The clear intention of the lawgiver was that legal practitioners are essential service, and it did not confer discretion on the authorizing officer to introduce additional requirements for the issuance of a permit. These Regulations were passed by the President and approved by Parliament. To now introduce other conditions post facto is to undermine the legislative process that was followed in passing the Regulations”, read the statement.
According to LSB, the issuance of permits by authorizing officer to legal practitioners should be purely administrative, with the only questions to be considered being whether the person who seeks the permit is a licensed legal practitioner, and whether the form that has to be completed, has been properly filled-out.
LSB also said it was partly in recognition of the fact that many state-sponsored abuses of freedoms and liberties take place under the cloak of state of emergency that the law-giver declared legal practitioners an essential service.
“During such periods, it becomes critical that those who may fall victim to these abuses have unhindered access to a legal practitioner. Subjecting the grant of permits to instances which the Registrar or the Ministry, in their wisdom, deem to be urgent therefore chills the right to legal representation, which freedom is more critical in a state of emergency.”
It further said the arrangement could prove difficulty for lawyers to meaningfully consult with their clients until they have been given permits.
The Society raised concern that the requirement to seek a permit from the Ministry in respect of non-litigation matters that are urgent requires legal practitioners to violate the common law duty of confidentiality that they owe their clients.
It also expressed doubts as to whether the ministry has the expertise to determine the urgency of the matter. It said the requirement also undermines he independence of the legal profession, which is an important feature in a democratic set-up that recognizes the separation of powers between the judiciary, legislature and executive.