In Re Section 65 of The Constitution (2 of 2005) [2006] MWHC 144 (6 November 2006)

In Re Section 65 of The Constitution (2 of 2005) [2006] MWHC 144 (6 November 2006)

Section 65(1) of the Constitution is valid and consistent with other constitutional provisions; it applies only to members of the National Assembly 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 Assembly. The section does not apply to independents or sole party representatives, which is discriminatory but requires legislative amendment, not judicial extension.

Citation
[2006] MWHC 144
Parties
Referror: Attorney General; Amicus: Amicus Curiae
Court
High Court of Malawi
Jurisdiction
Malawi
Judgment Date
6 November 2006
Case Number
2 of 2005
Procedural Posture
Presidential Referral / Determination on Constitutional Interpretation
Outcome
Section 65(1) is valid and consistent with the Constitution; its application is limited as interpreted; discriminatory aspects require legislative amendment.
Legal Topics
Section 65 of the Constitution, Crossing the Floor, Parliamentary Membership, Political Rights, Freedom of Association
Source Language
English
Constitutional Law Parliamentary Law Section 65 of the Constitution Crossing the Floor Parliamentary Membership Political Rights Freedom of Association

Case Brief

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Parties

Attorney General

Referror

Amicus Curiae

Amicus

Procedural Posture

Presidential Referral / Determination on Constitutional Interpretation

Legal Issues

  1. 1 Whether Section 65 is consistent with Sections 32, 33, 35 and 40 of the Constitution and is 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 an independent MP joining a political party is deemed to have crossed the floor under Section 65

Ratio Decidendi

Section 65(1) of the Constitution is valid and consistent with other constitutional provisions; it applies only to members of the National Assembly 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 Assembly. The section does not apply to independents or sole party representatives, which is discriminatory but requires legislative amendment, not judicial extension.

Court Disposition

Section 65(1) is valid and consistent with the Constitution; its application is limited as interpreted; discriminatory aspects require legislative amendment.

Orders

  • Attorney General and Law Commission are called upon to amend Section 65 to address discriminatory aspects.