In Re: Question of the Crossing of the Floor by Members of the National Assembly; In Re: Presidential Reference of a Dispute of a Constitutional Nature under Section 89(1)(h) of the Constitution and Section 65 of the Constitution (44 of 2006) [2007] MWHC 426 (14 June 2007)

Key Facts

Issues

• The second issue required interpreting the phrase 'National Assembly' in section 65(1), particularly whether it refers to the National Assembly existing at the time of a general election. This was a technical question about the temporal scope of the provision.
• The Referral Authority challenged whether section 65(1) of the Constitution, which governs 'crossing the floor' by MPs, conflicts with entrenched rights in sections 32 (Freedom of Association), 33 (Freedom of Conscience), 35 (Freedom of Expression), and 40 (Political Rights). The High Court found no inconsistency, and this appeal contested that ruling.
• The fifth issue questioned if an MP who accepts a ministerial appointment from a President of a different party (without resigning from their original party) is considered to have crossed the floor. The High Court held that this depends on the MP's conduct post-appointment.
• The third and fourth issues addressed whether Members of Parliament elected as independents who later join a political party—whether already represented in the National Assembly or not—are deemed to have crossed the floor under section 65(1). The High Court found this applied to both scenarios.

Holdings

• The court found that section 65(1) of the Constitution is not inconsistent with sections 32, 33, 35, and 40 and is valid.
• The court determined that accepting a ministerial appointment does not automatically constitute crossing the floor, but depends on the MP's conduct post-appointment.
• The court upheld the lower court's decision that members of the National Assembly elected as independents do not cross the floor when joining a political party (represented or not represented) in the National Assembly.
• The court held that the High Court's reliance on the PAC case was flawed, as the PAC case addressed the amendment to section 65(1) and not its original constitutionality.

Remedies

• The appeal on ground one, challenging the validity of section 65(1) of the Constitution, was unsuccessful. The Supreme Court upheld the High Court's decision, affirming that section 65(1) is not inconsistent with sections 32, 33, 35, and 40 and remains valid.
• The appeal on ground two, contesting the constitutionality of section 65(1), was also unsuccessful. The court confirmed the High Court's finding that the provision is valid under the constitutional framework.
• The Referral Authority withdrew the appeals on grounds four and five. The court concurred with the majority decision that independent members of the National Assembly do not cross the floor when joining a party, represented or not.
• The appeal on ground three succeeded. The Supreme Court agreed that the High Court improperly relied on the PAC case, as the original constitutionality of section 65(1) was not addressed in that decision.
• The appeal on ground six was partially successful. The court held that a member of the National Assembly does not cross the floor merely by accepting a ministerial appointment, but post-appointment conduct may determine this on a case-by-case basis.

Legal Principles

• The judgment underscored the Rule of Law by stating that the Constitution is the supreme law of Malawi, and any law or act inconsistent with it is invalid. This principle was foundational to the court's rejection of the argument that section 65(1) could be invalidated.
• The Malawi Supreme Court of Appeal emphasized the Purposive Approach to constitutional interpretation, citing the Nseula case to affirm that all constitutional provisions must be harmonized and interpreted in a way that sustains each other. This approach was central to the court's conclusion that section 65(1) is valid and consistent with other constitutional provisions.
• By applying the Ejusdem Generis doctrine, the court reasoned that the term 'law' in section 108(2) must be understood in the context of other subordinate laws, not the supreme Constitution. This reinforced the conclusion that constitutional provisions cannot be invalidated.
• Using the Literal Rule, the court clarified that the word 'law' in section 108(2) refers to subordinate laws and acts of government, not the Constitution itself. This interpretation was critical in determining the limits of judicial review over constitutional provisions.
• The judgment addressed the scope of judicial review under section 108(2), concluding that courts cannot declare constitutional provisions unconstitutional. This analysis formed a key part of the legal reasoning in the appeal, aligning with the principle of judicial review as defined in the Constitution.

Precedent Name

• Ex-parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, 1996
• Fred Nseula v The Attorney General and Malawi Congress Party
• The Registered Trustees of PAC vs. The Attorney General and Speaker of the National Assembly
• Gopalan v State of Madras
• Dr. J. B. Mponda Mkandawire and Others vs. the Attorney General

Cited Statute

• Constitution of the Republic of Malawi
• Courts Act
• General Interpretation Act

Judge Name

• J B Kalaile
• I J Mtambo
• A K Tembo
• D G Tambala
• L E Unyolo

Passage Text

• our answer to this question is in the negative. Neither the High Court nor this court has the power, to declare as invalid, or to invalidate, such a provision.
• we are in full agreement with the court below in its finding that section 65(1) is not inconsistent with sections 32, 33, 35 and 40, and that it is valid.
• It is trite that the large majority of members of the National Assembly are sponsored by political parties and voted for on political party lines... the electorate might feel cheated by such conduct on the part of the member of the National Assembly.