The Common Law [with Biographical Introduction]
Lawyers: attorneys and solicitors Free resource. National Archives guides to finding their records. Please see the sources suggested by OU Archives colleagues at link below:. Register of admissions to Gray's Inn Legal profession and the common law : historical essays by J. Holders of an Oxford SSO can read this online via clicking on title.
Supplementary series Selden Society ; v. Holders of OSS can also read this book online by clicking on the title. Holders of an Oxford Single Sign On can also read this online by clicking on title. Meagher then goes further with his argument, in which I concur, stating that:. Moreover, the marginal notes of what became the Constitution were inserted in the first draft finalised in and remained as part of the document debated during the following four Conventions; and also as part of the final draft which went to the people. The same can clearly be said of the Malawian context in respect of the Constitution.
Thus it is submitted that the marginal notes to sections 7, 8 and 9 of the Constitution are part of the Constitution of Malawi and constitute an explicit reference to the doctrine of separation of powers under the Constitution. This is indeed in stark contrast with most constitutions around the world that do not have explicit statements on separation of powers. The argument as to whether the Constitution makes explicit reference to separation of powers was in fact settled by the Supreme Court of Appeal in the case of Attorney General v.
Minister of Education where Ndovi J stated that:. It is essential to understand that all the three branches of Government, a the Executive, b the Legislature and c the Judiciary are bound by and work within the confines of the Constitution. This paper departs from the common reference to Section 8 of the Constitution as a provision that substantively establishes the primary functions of the legislature, on grounds of principle. Below, I briefly discuss the prominent features of these principal organs of Government in light of, inter alia , the foregoing principles of representative democracy, openness and accountability.
The Executive. That Section states that:. For the purposes of this section "Government" shall mean the President, the Cabinet, the Ministries, other organs of the President and Cabinet and their agents, including individuals and bodies under the authority of the President, the Cabinet or the Ministries.
It provides that:. The executive shall be responsible for the initiation of policies and legislation and for the implementation of all laws which embody the express wishes of the people of Malawi and which promote the principles of this Constitution. I now examine the various principal arms of the Executive:. The President provides leadership to the Executive. The Presidency, for the purposes of this article, comprises the high offices of the President; Vice President and where applicable the Second Vice President. The Office of the President is established under Section 78 of the Constitution while that of the Vice President is established under Section According to Section 79 of the Constitution, the functions of the Vice President including the Second Vice President where applicable are to assist the President and exercise the powers and perform the functions conferred on him or her, as the case may be, by the Constitution or by any Act of Parliament, and by the President.
Among some of the functions that the Constitution confers on the Vice President, is to chair Cabinet in the absence of the President, pursuant to Section 92 3 of the Constitution. The First Vice-President shall be elected concurrently with the President and the name of a candidate for the First Vice President shall appear on the same ballot paper as the name of the Presidential candidate who nominated him. By providing that the President and the Vice President be elected concurrently, by universal and equal adult suffrage, the Constitution of Malawi upholds the cornerstone of representative democracy as spelt out in the preamble and the fundamental principles.
Their authority to govern flows from the consent of the governed. The requirement that the First Vice President should also be elected is very important, especially considering that in the event of a vacancy arising in the office of the President, under Section 83 4 of the Constitution, the First Vice President takes over office. Requiring that a Vice President be elected to office provides political legitimacy that is consistent with the democratic entitlement, in the event that a vacancy arises in the office of the President. The Presidency, along with the entire Executive, seems to be the least transparent among the three principal organs of Government in so far as the exercise of their core functions and duties is concerned.
However, there are numerous provisions in the Constitution that, if interpreted and followed in good faith, would provide quite a good footing for openness in the Presidency and the entire Executive. Section 89 3 of the Constitution provides for the State-of-the-Nation Address by the President and it provides as follows:. The President shall each year, immediately before the consideration of the official budget, attend Parliament and shall —. Under this provision, Members of Parliament may ask questions about important issues affecting the nation.
One problem is that this Address so far has remained highly structured and seemingly designed to minimize the questions to which the President responds. The President shall be called to Parliament to answer questions at such times as may be prescribed by the Standing Orders of Parliament or on a motion of the National Assembly. This means that whenever an issue requiring the President to specifically address Parliament arises, the President may be summoned through two Parliamentary procedures.
First, through the procedure laid down in the Standing Orders of Parliament. It is unclear whether these Standing Orders presently exist. The Second is through a Member of Parliament moving a motion and having it carried by simple majority. The President is then under an obligation to come to Parliament and answer questions. These are provisions that, if scrupulously observed, would not only ensure openness or transparency by the President, but also accountability to Parliament.
Apart From being listed among the three foundational cornerstones of the Constitution in the preamble, accountability has been specifically mentioned in Section 13 o of the Constitution among the list of directive principles of national policy DPNP in that section.
Section 13 o provides that the State shall progressively adopt and implement policies and legislation aimed at introducing measures which will guarantee accountability, transparency, personal integrity and financial probity and which by virtue of their effectiveness and transparency will strengthen confidence in public institutions.
The measures aimed at transparency mentioned above are closely connected with measures of accountability. However, accountability is a broader concept. It also implies that holders of public office must be held to account for their actions, omissions or inactions. Sections 88 3 5 contain measures aimed at ensuring individual business ethics, personal integrity, and financial probity by the President and members of Cabinet. Section 88 3 requires the President and members of the Cabinet not to hold any other public office and not to perform remunerative work outside the duties of their office.
It also enjoins them to fully disclose all of their assets, liabilities and business interests and those of their spouses, held by them or on their behalf as at that date. The section mandates that, unless Parliament determines otherwise, such disclosure should be made in a written document delivered to the Speaker of the National Assembly, who is in turn required to immediately deposit the document with such public office as may be specified in the Standing Orders of Parliament.
Retroactivity and the Common Law
Section 88 4 then requires that any business interests held by the President or members of the Cabinet should be held on their behalf in a beneficial trust which should be managed in such manner as to ensure conformity with Section Sub-section 88 5 is a general provision that requires the President and members of the Cabinet not to use their respective offices for personal gain or place themselves in a situation where their material interests conflict with the duties of their offices.
Another issue related to the accountability cornerstone pertains to the amenability of the President to civil or criminal process in respect of breaches of the laws of the land. In this regard, it is perhaps pertinent to start by observing that in the normal course of things, the President is immune from such process. Section 91 of the Constitution provides that:. No person holding the office of President or performing the functions of President may be sued in any civil proceedings but the office of President shall not be immune to orders of the courts concerning rights and duties under this Constitution.
No person holding the office of President shall be charged with any criminal offence in any court during his [or her] term of office, except where he or she has been charged with an offence on impeachment. After a person has vacated the office of President, he or she shall not be personally liable for acts done in an official capacity during his or her term of office but shall not otherwise be immune.
A few things are immediately clear here. Thus it would appear that Section 91 1 protects the President from civil liability, but his office is amenable to orders of the courts in respect of his or her conduct with regard to the exercise of his or her official functions. I discuss the issue of impeachment below. It essentially makes it clear that although a person holding the office of the President is immune from being sued or prosecuted whilst holding office, he or she remains personally liable for any personal breaches of the law and would be held accountable in respect thereof upon vacating office.
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I take the view that the effect of the Limitation Act is suspended as the Plaintiff would be under a legal disability to sue during this period. Closely interrelated with the issue of immunity discussed above, is the question of removal from office through the process of impeachment. Section 86 2 a provides that indictment and conviction by impeachment shall only be on the grounds of serious violation of the Constitution or serious breach of the written laws of the Republic that either occurred or came to light during the term of office of the President or the First Vice President.
This process, it is submitted, if implemented faithfully, impartially, boldly and with dignity, ensures that a person holding the office of President or First Vice-President is to be held to account for serious breaches of the laws of the country without even waiting for the expiry of his or her term of office. It is a process that upholds the principle that no person is above the law which is one of the fundamental principles of the Constitution in section 12 iv ; and is one of the foundational and fundamental tenets of the rule of law.
Cabinet is established under Section 92 1 of the Constitution. The functions and responsibilities of the Cabinet are spelt out in Section 96 1 of the Constitution. Key provisions are subsections a , b and c thereof. The duties of Cabinet as spelt out in these provisions are:. In terms of the foundational cornerstones of openness, representative democracy and accountability, I have already stated above that the Executive, and particularly Cabinet, is probably the least open organ of Government in the exercise of its functions.
This point is made amply clear in the case of Cabinet. Unlike judicial or legislative proceedings, Cabinet proceedings are not open to the public. It would appear that the presumption is that the public has no direct interest in accessing accounts of the proceedings of Cabinet except in instances where Cabinet itself so decides.
Under Section 96 1 e of the Constitution, members of Cabinet are enjoined to be available to Parliament for the purposes of answering any queries or participating in any debate pertaining to the content of the policies of the Government. It is arguable that this is one way of ensuring that Cabinet is open and also held to account. However, to all intents and purposes, it would appear that it is the Presidency that is required to account, rather than other members of Cabinet. As regards representative democracy; Cabinet collectively is not an elected body.
However, apart from the 1 st Vice President, it serves at the pleasure of the President who is in turn directly elected by the people. Unlike Sections 7 and 9, which clearly state the responsibilities of the Executive and Judiciary, respectively, Section 8, which purports to deal with the responsibilities of the legislature, seems equivocal in its provisions. These interests may be very diverse and the Member of Parliament may find him or herself in the unfortunate position where he or she has to weigh the interests of his or her constituency against the perceived interest of the people of Malawi.
Further, the Constitution has various provisions that emphasize the individual autonomy of members of Parliament in the discharge of their legislative functions. The only case before the courts that has attempted to address the issue of the right of the electorate to be represented in Parliament has left the law in a state of confusion and uncertainty.
In the case of Gwanda Chakuamba v. That Section [Section 62 2 ] simply provides that each constituency shall freely elect any person to represent it as a member of the National Assembly. My understanding of this provision is that it grants a right to the entire constituency to freely elect a person who shall represent it in Parliament.
Again the right to be represented is given to the entire constituency and not to the individual member of the constituency. It is a right granted to a group of persons. Again the paramount right is the freedom to elect. The representation is of secondary importance. Section 33 of our Constitution grants to every person the right of freedom of conscience, belief and thought.
If Mr. To deny a person the right to choose what to do is a violation of a basic human right. To compel Mr. To compel a person to do something against his will or consent is to treat him not as an honourable Member of Parliament, but as a slave or prisoner. This case was wrongly decided. This decision has neither been considered by the Malawi Supreme Court of Appeal, nor has it been departed from by any other court of co-ordinate jurisdiction. It therefore represents the current position of law in Malawi.
Secondly, the provision does not unequivocally say that Parliament shall be vested with exclusive legislative powers in the country, though arguably, that ambiguity is cured by the provisions of Section 48 1 and 66 1 of the Constitution.
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In the premises, however, it seems reasonable as suggested above,  to refer to section 66 1 of the Constitution as providing for the separate status, functions and duties of the legislature. Malawi has a unicameral legislature. When the new Constitution was adopted in , a bicameral legislature, consisting of a National Assembly and a Senate, was envisaged and provided for. However, the Constitution provided that the Senate would only take effect at a subsequent date.
During that interim period, the Constitution provided that the National Assembly would operate as Parliament. In , the National Assembly passed a constitutional amendment abolishing the Senate. Some have argued that the abolition of the Senate was unconstitutional. Section 45 8 of the Constitution is relied on as a primary basis for this argument. The Section provides that:. Under no circumstance shall it be possible to suspend this Constitution or any part thereof or dissolve any of its organs, save as is consistent with the provisions of this Constitution.
Chigawa argues that the Senate, as a constituent part of Parliament, was an organ of the state established under the Constitution. In respect to the foundational cornerstones of openness, democracy and accountability, the following observations are made:. Parliament is sufficiently open with regard to the discharge of its core function of enacting laws. Parliamentary proceedings are generally open to the public. Members of Parliament are directly elected by the electorate in regular elections held every five years.
This is an important element of representative democracy. However, the system was significantly weakened in , when Parliament passed a Constitutional amendment repealing section 64 of the Constitution that provided for the recall of non-performing Members of Parliament or those members that have lost the trust and confidence of the electorate. Thus the decision to repeal section 64 of the Constitution clearly flew in the face of one of the fundamental principles upon which the Constitution was founded. There are some mechanisms in the Constitution designed to ensure accountability.
One of them is Section 65 1 that provides that a Member of Parliament, who crosses the floor by switching political party allegiance after he or she gets elected into Parliament, loses his or her Parliamentary seat. Another important check on parliamentarians to ensure accountability is the fact that the Constitution provides for regular elections every five years.
Secondly, it is submitted that the High Court decision in Gwanda Chakuamba v. The founding provisions for the judiciary are spelt out in section IX of the Constitution. Section 2 of the Constitution accords the judiciary jurisdiction over all issues of a judicial nature, and exclusive authority to decide whether an issue is within its competence. This provision delimits judicial issues as being within the exclusive remit of the judiciary, hence underpinning the principle of separation of powers discussed above.
The provision is also an affirmation of the independence of the judiciary. The responsibility of the judiciary is spelt out in section 9 of the Constitution.
That section provides that:. The judiciary shall have the responsibility of interpreting, protecting and enforcing this Constitution and all laws and in accordance with this Constitution in an independent and impartial manner with regard only to legally relevant facts and the prescriptions of law. There are several observations that can quickly be made in respect of this section:. First, the responsibilities of the judiciary are principally threefold: .
This provision is to be read together with section 4 that provides that the Constitution binds all organs of the State including the judiciary. Implicit in this provision is a recognition that is made explicit in section 10 of the Constitution, which is also part of the concept of the supremacy of the Constitution; that in the interpretation of all laws, the Constitution is the supreme arbiter and the ultimate source of authority.
The Spirit of the Common Law
It requires that all organs of Government in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by the law. In the usual course of things, courts can only competently adjudicate where the prescriptions of law are applied to legally relevant facts. In the case of National Democratic Alliance v. The Court said:. When a Court is dealing with a case it is as much interested in the facts giving rise to it as it is interested in the law applicable.
To merely make pronouncements on the law without an adequate factual base may sit well in a symposium situation or in an academic one, but certainly not in a judgment. Thus Courts only have limited scope to provide advisory opinions that are not directly triggered by a specific set of facts, and as I shall argue shortly, it is debatable whether the opinions provided are purely expository on the law or they still have some factual basis.
Section 89 1 h of the Constitution provides that the President has the power and duty to refer disputes of a constitutional nature to the High Court. Malewezi ,  the High Court faulted the Attorney General for bringing a question before the Court as to the legal consequences of the decision of Mr. Malewezi, then Vice president of the country, to go on a long holiday that would last till the end of his term of office. The Court opined that the Attorney General had erred in bringing the matter before the Court as only the President could properly bring such a matter before the Court for opinion in terms of Section 89 1 h of the Constitution.
The question remains however as to whether the decision of the Court in these matters should not always be based on relevant facts. Evidently, one can only show that a dispute exists by proving certain facts. It is submitted that the President cannot just refer a dispute to the High Court in vacuo.
Thus the dual requirement for the judiciary to settle matters with regard to the relevant facts and prescriptions of law still seems to apply here. The High Court had occasion to consider and extensively discuss the practical implications of this adversarial system in the NDA Case where the Court said:.
We believe that all parties to this case do duly appreciate the fact that Malawi follows the common law system of justice. This system, at heart, is adversarial and not inquisitorial. It is no business of the Court in the system that applies in this country to go out and hunt for evidence on behalf of the parties.
Courts are enjoined to base thei r decisions solely on the evidence procedurally presented before them in the cases filed before them and on nothing else. Firstly, it is observed that under the old, pre system, the Supreme Court of Appeal comprised the Chief Justice and other judges of the High Court appointed on a case by case basis to sit as a bench of Justices of Appeal on the Supreme Court.
Under the Constitution, the Supreme Court of Appeal and the High Court are established separately under sections 1 and 1 of the Constitution respectively; and both courts have permanent Justices of Appeal and Judges respectively. Hence, it is submitted that on this ground alone, the new system cannot admit of the High Court system as including the Supreme Court. It would clearly be anomalous to identify and classify the Supreme Court of Appeal with the High Court as the frame of reference.
In the result, it is submitted that there is only one civilian court system in Malawi. As mentioned above, the Supreme Court of Appeal is established under section of the Constitution. There shall be a Supreme Court of Appeal for Malawi, which shall be a superior court of record and shall have such jurisdiction and powers as may be conferred on it by this Constitution or by any other law. The Supreme Court of Appeal shall be the highest appellate court and shall have jurisdiction to hear appeals from the High Court and such other courts and tribunals as an Act of Parliament may prescribe.
This provision shows that the Supreme Court of Appeal is the highest court in Malawi and that its jurisdiction is exclusively appellate. It has no original jurisdiction. The High Court is established under section of the Constitution. It is pertinent to note that the High Court has unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law.
It is curious that this apparently clear position has been the subject of contest in the courts. In , in the case of Mungomo v. Unyolo J as he was then called , agreed with this argument as a matter of strict legalistic interpretation, but departed from that position on pragmatic grounds, stating that:. It is to be observed, however, that although this is the position, the High Court has to look at the matter from a practical point of view. In my judgment, it would be both inappropriate and wrong for the High Court to proceed and assume jurisdiction over proceedings which fall within the jurisdiction of a subordinate court simply because the High Court has, as we have just seen, unlimited original jurisdiction.
Such an approach would create confusion, as parties would be left to their whims to bring proceedings willy-nilly in the High Court or in a subordinate court, as they pleased. This would also open the floodgates for trivial cases to come before the High Court. In short, the High Court should recognise the subordinate courts and decline jurisdiction in matters over which the subordinate courts have jurisdiction, unless exceptional circumstances exist which necessitate or require its intervention.
In the subsequent case of Air Malawi v. Ombudsman ,  Twea J seemed to adopt a rather vague position on the point. He stated thus:. For purposes of analogy let me refer to section 2 of the Constitution. Would one say this ousts the jurisdiction of the High Court, which has unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law [under] section of the Constitution?
Obviously the answer is no. Therefore does the High Court have jurisdiction over labour disputes? The answer is yes. One would therefore find that the Industrial Relations Court and the High Court have concurrent jurisdiction. By stressing the concurrence of jurisdiction, this passage seems to suggest that the High Court might as well hear labour disputes without necessarily acting in deference to the jurisdiction of the Industrial Relations Court. To that extent, Twea J seems to depart a small distance from the approach taken by Unyolo J in Mungomo v.
Mungomo , i. The Supreme Court of Appeal then seems to have thoroughly confused matters in the case of Attorney General v. The notion of the High Court having unlimited powers needs to be reconsidered in the light of the complexities of modern day life and the existence in the Constitution of provisions which are apparently inconsistent with that notion. The view that the High Court must have power to deal with any case is both untenable and undesirable in the changed circumstances of the present times.
The Court did not even make a case to suggest that a construction that suggests the unlimited original jurisdiction of the High Court might lead to manifestly absurd results. Perhaps if such a case had been made, there might have been a conceivable basis to ground this radical departure from clear words of the Constitution.
It is urged that the cautious and practical approach adopted by Unyolo J in the Mungomo case represents the best way of approaching section 1 in this regard. Originally under Section 9 of the Courts Act, all proceedings in the High Court were heard and disposed of by or before a single judge. However, in , section 9 of the Courts Act was amended, whereupon the original section 9 became section 9 1 and new sections 9 2 and 9 3 were introduced, providing that:. The only nuance is that it requires more judges not less than three to hear and dispose of matters in cases where questions or issues expressly and substantively relating to, or concerning the interpretation or application of the provisions of the Constitution are raised.
It is imperative that law students take due notice of this common anomaly. The section provides that:. There shall be an Industrial Relations Court, subordinate to the High Court, which shall have original jurisdiction over labour disputes and such other issues relating to employment and shall have such composition and procedure as may be specified in an Act of Parliament. In terms of jurisdiction, this provision shows:.
Perhaps they were intended to convey the sense that the court would have jurisdiction over such employment issues if a dispute arises; but then that is probably almost as good as obvious. The IRC has some unconventional procedural and evidentiary provisions. It emphasises economy, informality and dispatch of cases in its procedures at the expense of technicality.
Section 73 restricts the right to legal representation. It essentially provides that a party to proceedings in the IRC may only be granted leave to be represented by a legal practitioner if the other party is also represented. A number of questions still linger in respect of this provision. For instance, what happens if a legal practitioner for one of the parties withdraws mid-stream through the proceedings.
Does the Court then have to order that the legal practitioner for the other party withdraws? Or is the position that this is only a requirement at the point of granting leave, and that once leave is granted, then legal representation will persist irrespective of whether both parties continue to have legal practitioners? Magistrate courts are established under section 1 of the Constitution. There shall be such courts, subordinate to the High Court, as may be prescribed by an Act of Parliament which shall be presided over by professional magistrates and lay magistrates.
There are four categories of magistrates in Malawi. These are prescribed under section 33 of the Courts Act as follows, in order of seniority:. According to section 34 3 of the Court Act, these are higher than all other magisterial categories and they have oversight responsibilities over the lower levels. According to section 35 of the Courts Act, all magistrate Courts have territorial jurisdiction throughout Malawi. Hence they can hear any criminal or civil case regardless of where the crime was committed. In practice, however, they ordinarily defer to the magistrate court in the area where the crime was committed.
In terms of civil jurisdiction, section 39 1 of the Courts Act provides jurisdictional limitations in terms of the civil cases that the various categories of magistrates can hear and dispose of based on the monetary amounts involved. As for Criminal jurisdiction, magistrates can try any offence prescribed under any written law unless otherwise provided for in another law. Magistrate Courts are courts of first instance and they have no appellate jurisdiction. Traditional Courts in Malawi are recognised under the Constitution. The judicial process is a very open process.
Court proceedings are generally open to the public except in cases where proceedings are filmed. These cases include matters that deal with children where the Children and Young Persons Act requires that the privacy of the child be respected and preserved, and other instances where the Court takes the view that it is in the interests of justice that proceedings be filmed.
Further, all court rulings or judgments are public documents accessible to the public at large. It is therefore submitted that the judiciary meets the openness test within the framework of the Constitution, in so far as the discharge of its judicial mandate is concerned. Unlike the other two principal organs of Government, the judiciary is not an elected body. Judicial officers are appointed in their personal capacity based on their qualifications, career profile, and experience. They are not appointed to represent the interests of any group of people.
Others have argued that this scenario presents what is called a counter- majoritarian dilemma, especially bearing in mind that the Courts have powers to invalidate legislation passed by duly elected representatives of the people, where the same is deemed to be inconsistent with the provisions of the Constitution.
Thus, although the judiciary is an unelected body and hence does not directly meet the requirement of representative democracy in terms deriving the source of its authority, it is essential in order to maintain constitutional democracy. Thus, in discharging its duties, the judiciary does not necessarily have to give effect to popular public opinion and, in some cases, it must depart from it. In the case of The State v. Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favor.
If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the Constitution… The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.
Those who are entitled to claim this protection include the social outcasts and marginalized people of our society. It is submitted that this passage provides a forceful countervailing argument against any fears raised by the counter-majoritarian argument.
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Although Section of the Constitution guarantees the judiciary independence in the discharge of its functions and duties, the institution is still amenable to checks and balances within the framework of separation of powers. F or instance, Section establishes the Judicial Service Commission, one of whose functions is the regulation of judicial officers in their work. This includes both personal conduct as well as official performance. Section 2 provides that a person holding the office of Judge may be removed from office only for incompetence in the performance of the duties of his office or for misbehavior.
The procedure for removal of a Judge from office is prescribed in Section subsections 3 - 5. The President may by an instrument under the Public Seal and in consultation with the Judicial Service Commission remove from office any Judge where a motion praying for his removal on the ground of incompetence in the performance of the duties of his office or misbehavior has been;.
Provided that the procedure for the removal of a judge shall be in. Where notice of intention to introduce before the National Assembly a motion praying for the removal of a Judge from his office has been lodged in the office of the Speaker, the President may, where after consultation with the Judicial Service Commission he is satisfied that it is in the public interest so to do, suspend the Judge from performing the duties of his office. The suspension of a Judge under subsection 4 may at any time be revoked by the President, after consultation with the Judicial Service Commission, and shall in any case cease to have effect where the motion is withdrawn before being debated in the National Assembly or, upon being debated, is not passed by a majority thereof.
What these provisions demonstrate is that judicial officers are subject to discipline and this is certainly a way of ensuring that they remain accountable in the way they discharge their duties. Thus it is submitted that the provisions on the judiciary under the Constitution are consistent with the foundational cornerstone of accountability. This paper discusses the following regimes: constitutional law, legislation, common law, customary law, religious law, and customary international law.
It is obviously informed by developments in other jurisdictions, but, in terms of section 11 1 of the Constitution, the document is unique in character. This is bolstered by the fact that it admits of the application of public international law and comparable foreign case law, without any geographical or jurisdictional delimitation in its interpretation.
Although there have been numerous pronouncements from the High Court as well as the Supreme Court of Appeal suggestive of a conservative approach, the supreme Court of Appeal appears to have finally settled the matter in line with the approach that I adopt here.
Simply put, legislation may be defined as the rules of law made by or under the authority of the legislature. Section 48 1 of the Constitution vests all legislative powers of the Republic in Parliament. Section 58 provides that Parliament may delegate to the Executive or the Judiciary the power to make subsidiary legislation, provided that such legislation does not substantially and significantly affect the fundamental rights and freedoms recognised by the Constitution.
There are various categories of legislation. These include 1 Penal legislation that regulates the criminal law regime;  2 Regulatory legislation that essentially regulates the manner in which some public affairs sometimes even private affairs or institutions are run;  3 Financial legislation that regulates financial matters in the country;  4 Fiscal legislation that regulates fiscal matters;  and 5 Social legislation that deals with the day to day running of the social system.
Thirdly, Malawi applies the common law a body of case law based on principles that have evolved over time. Section of the Constitution provides for the continued application of the common law in force at the time the Constitution was adopted in so far as they are consistent with the Constitution. The evolving character of the common law has been enshrined in the constitution under Section 10 2 of the Constitution, which enjoins courts to have due regard for the principles and provisions of the Constitution when applying and developing the common and customary law.
Fourthly, courts in Malawi apply customary law. As in the case of common law, Section of the Constitution provides for the continued application of the customary law in force at the time the Constitution was adopted. Further, the Constitution in Section 10 2 enjoins courts to have due regard to the principles and provisions of the Constitution when applying and developing the same. However, the idea of courts developing customary law lends itself to some conceptual problems. Ideally, customary law is the traditional law applied by traditional leaders in the determination of essentially traditional matters in their areas of traditional territorial jurisdiction.
Traditionally, customary law has always evolved as societies transform. It is unclear whether formal courts should be responsible for developing customary law. Religious law is also applied in Malawi in some cases, e. Under the Asiatics Marriage, Divorce and Succession Act,  marriages are celebrated under Asian customs and traditions, as well as under religious practices and norms of the parties involved. The Act, as the name suggests, applies to people of Asian origin, whether resident in Malawi or not.
Thus for instance, people of Asian origin are, under this Act, allowed to celebrate their marriages according to Hindu or Islamic religious norms or laws. Any international agreement entered into after the commencement of this constitution shall form part of the law of the Republic if so provided for by or under an Act of Parliament. Binding international agreements entered into before the commencement of this Constitution shall continue to bind the Republic unless otherwise provided by an Act of Parliament.
Customary international law, unless inconsistent with this Constitution or an Act of Parliament, shall form part of the law of the Republic. This section reveals a number of things. In stating that binding international agreements entered into before the commencement of the Constitution shall continue to be binding on the Republic, it does not seem that the provision introduces anything new. An international agreement becomes binding upon the formal act of ratification and not incorporation. The last part of that subsection seems to suggest that the Malawi Parliament can pass an Act domestically that would relieve the state of its international obligations under a treaty.
Again that is not the case. A state can only withdraw or be relieved of its international treaty obligations through a procedure spelt out under that particular treaty or general treaty law principles. By giving us an insight into the policies, the author provides a basis for more satisfactory decision-making in the future. The author not only discusses the recent cases but examines the question in the light of authority in other Commonwealth jurisdictions and with due regard to the more theoretical literature.