In Re: The Question of Crossing The Floor By Members of Parliament (Presidential Referral 2 of 2005) [2006] MWHC 22 (6 November 2006)

In Re: The Question of Crossing The Floor By Members of Parliament (Presidential Referral 2 of 2005) [2006] MWHC 22 (6 November 2006)

Section 65 of the Constitution is valid and not inconsistent with Sections 32, 33, 35, and 40. It applies to MPs who were members of a political party at the time of election and who voluntarily cease to be members or join another party represented in the National Assembly. Independent MPs or sole party representatives are not covered by Section 65 as currently drafted. Accepting a ministerial appointment from a President of another party may constitute crossing the floor if done without party approval. The provision is discriminatory in not covering independents or sole representatives, and amendment is recommended, but the Court cannot extend its scope by interpretation.

Citation
[2006] MWHC 22
Parties
Referror/applicant (president of Malawi): Dr. Bingu wa Mutharika; Counsel for Referror: Attorney General of Malawi; Amicus Curiae: Registered Trustees of Public Affairs Committee (PAC); Amicus Curiae: Law School, University of Malawi; Amicus Curiae: Malawi Law Society; Amicus Curiae: Civil Liberties Committee (CILIC); Amicus Curiae (political Party): Alliance for Democracy (AFORD); Amicus Curiae (political Party): Malawi Congress Party (MCP); Amicus Curiae (political Party): United Democratic Front (UDF); Withdrew as Amicus Curiae: Democratic Progressive Party (DPP); Non Participating Amicus Curiae: People’s Progressive Movement (PPM)
Court
High Court of Malawi
Jurisdiction
Malawi
Judgment Date
6 November 2006
Case Number
Presidential Referral 2 of 2005
Procedural Posture
Presidential Constitutional Reference / Final Determination After Hearing and Submissions
Outcome
Section 65 is valid and not inconsistent with other constitutional rights; injunctive relief set aside; interpretation of Section 65 clarified; recommendation for legislative amendment regarding independent MPs and sole party representatives.
Legal Topics
Interpretation of Section 65 (crossing the Floor), Freedom of Association, Political Rights, Validity of Constitutional Provisions, Parliamentary Membership
Source Language
English
Constitutional Law Parliamentary Law Interpretation of Section 65 (crossing the Floor) Freedom of Association Political Rights Validity of Constitutional Provisions Parliamentary Membership

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Parties

Dr. Bingu wa Mutharika

Referror/applicant (president of Malawi)

Attorney General of Malawi

Counsel for Referror

Registered Trustees of Public Affairs Committee (PAC)

Amicus Curiae

Law School, University of Malawi

Amicus Curiae

Malawi Law Society

Amicus Curiae

Civil Liberties Committee (CILIC)

Amicus Curiae

Alliance for Democracy (AFORD)

Amicus Curiae (political Party)

Malawi Congress Party (MCP)

Amicus Curiae (political Party)

United Democratic Front (UDF)

Amicus Curiae (political Party)

Democratic Progressive Party (DPP)

Withdrew as Amicus Curiae

People’s Progressive Movement (PPM)

Non Participating Amicus Curiae

Procedural Posture

Presidential Constitutional Reference / Final Determination After Hearing and Submissions

Legal Issues

  1. 1 Whether Section 65 of the Constitution is inconsistent with Sections 32, 33, 35, and 40 and therefore invalid
  2. 2 Interpretation of 'member of the National Assembly who was, at the time of his or her election, a member of one political party represented in the National Assembly'
  3. 3 Whether independent MPs joining parties or MPs resigning/joining other parties constitute crossing the floor under Section 65

Ratio Decidendi

Section 65 of the Constitution is valid and not inconsistent with Sections 32, 33, 35, and 40. It applies to MPs who were members of a political party at the time of election and who voluntarily cease to be members or join another party represented in the National Assembly. Independent MPs or sole party representatives are not covered by Section 65 as currently drafted. Accepting a ministerial appointment from a President of another party may constitute crossing the floor if done without party approval. The provision is discriminatory in not covering independents or sole representatives, and amendment is recommended, but the Court cannot extend its scope by interpretation.

Court Disposition

Section 65 is valid and not inconsistent with other constitutional rights; injunctive relief set aside; interpretation of Section 65 clarified; recommendation for legislative amendment regarding independent MPs and sole party representatives.

Orders

  • Section 65 of the Constitution is declared valid and not inconsistent with Sections 32, 33, 35, and 40.
  • The injunctive relief previously obtained is set aside.