IN THE MALAWI SUPREME COURT OF APPEAL
AT BLANTYRE
MSCA CIVIL APPEAL NO. 22 OF 1996
(Being
High Court Civil Cause No. 2074 of 1995)
BETWEEN:
THE ATTORNEY GENERAL.................................................APPELLANT
- and -
THE MALAWI CONGRESS PARTY...........................1ST RESPONDENT
- and -
L J CHIMANGO, MP..................................................2ND RESPONDENT
- and -
H M NTABA, (DR) MP..............................................3RD RESPONDENT
BEFORE: THE HONOURABLE MR JUSTICE UNYOLO, JA
THE HONOURABLE MR JUSTICE MTEGHA, JA
THE HONOURABLE MR JUSTICE KALAILE, JA
Hon. Dr Cassim Chilumpha, MP, Attorney General/
Steve D T Matenje, Solicitor General/
Patrick Elias, QC/
Andrew Dobson/
R Mhone, Counsel for the Appellant
M Msisha/T Nyirenda, Counsel for the Respondents
Chigaru, Official Interpreter/Recorder/Law Clerk
J U D G M E N T
Mtegha, JA delivered the judgment of the Court
My Lords, this is a unanimous judgment of the Court.
The respondents in this matter, namely, the Malawi Congress Party, Mr L J Chimango, MP and Dr H M Ntaba, MP, brought an action in
the Court below by originating summons against the appellant, the Attorney General. The summons sought a declaration on a number
of constitutional issues. These were stated as follows:
"1. A declaration that the conduct of parliamentary business in the National Assembly on November 7
and/or 8 1995 when there was no quorum for such meeting of the National Assembly was a violation of the Constitution;
2. A declaration that sections 50(1) & (2) of the Constitution requires that there be a quorum
in the House for competent business to be commenced and for the continuation of such business;
3. A declaration that the Standing Orders of the National Assembly were violated during the presentation
of the Press Trust (Reconstruction) Act;
4. A declaration that no quorum in fact existed in the National Assembly when the Press Trust (Reconstruction)
Act was debated, read and passed by the Assembly;
5. A declaration that the National Assembly had no constitutional competence to pass the said Press
Trust (Reconstruction) Act;
6. A declaration that the said Press Trust (Reconstruction) Act is unconstitutional and therefore null
and void or invalid to the extent that it is inconsistent with the Constitution of Malawi;
7. An order for the striking down of the said Act as having been irregularly passed;
8. An interim order for the Press Trust (Reconstruction) Act not to be signed into law or if so signed
not to be implemented until after the determination of the questions raised in this summons;
9. The determination of the Court on the following questions and consequential declarations, orders,
and remedies, namely:
(1) That Parliament has no constitutional or legal competence to conduct business when there is no quorum;
(2) That the presentation of the Bill as an Executive Branch bill to the National Assembly and the debating
of the bill by the National Assembly on November 7 1995 and its passing into law by the Assembly before the Cabinet had complied
with Article 96 of the Constitution was a violation of the Constitution of Malawi;
(3) That the Speaker of the Assembly should not have allowed parliamentary business and debate to proceed
on the Bill nor the passing of the Bill itself prior to satisfying himself that Article 96 of the Constitution had been complied
with;
(4) That the passing of the Press Trust (Reconstruction) Act was done in violation of the Standing orders
of the Assembly and the rights of all members of the Assembly to 21 days notice prior to the presentation of a bill to the National
Assembly;
(5) That Parliament does not have the constitutional competence to pass a law that expropriates private property
arbitrarily;
(6) That the Attorney General of Malawi has violated the Constitution of Malawi by failing to correctly advise
the Executive and Legislative branches of the government on the substance of the fundamental rights contained in Chapter IV of the
Constitution of Malawi and the constitutional obligations and limitations on the execuive and Legislative branches;
(7) That Parliament has no constitutional or legal competence to wind up a limited liability company duly
registered under the Companies Acts;
(8) That the National Assembly proceeded in violation of the Constitution of Malawi when it moved, debated,
read in committee and passed the Bill;
(9) That the plaintiffs are entitled to have the Bill properly debated in the National Assembly and to an
opportunity to have the view of their constituents, experts and the general public before the Bill is signed into law;
(10) That the Press Trust (Reconstruction) Act 1995 is in violation of the Constitution of Malawi and therefore invalid."
In brief then, the summons sought a declaration that the Press Trust (Reconstruction) Act was null and void.
The appellants opposed the summons, and the matter went before Mwaungulu J., who, after hearing argument from counsel on both sides delivered his judgment on 1st July 1996 in which he upheld the respondents'
contention that the Press Trust (Reconstruction) Act was null and void. It is against that decision that the appellant now
appeals to this Court.
It must be stated right at the outset that the case was decided on affidavit evidence. No witness was called by either side
to be cross-examined on his affidavit. This fact, has, as will be seen later in this judgment, a bearing on the nature of the
evidence.
In order to appreciate the flow of these proceedings, it is necessary to state briefly the history of the Press Trust.
In 1959, on 3rd March, to be exact, Dr H K Banda, leader of the Nyasaland African Congress, was arrested by the Colonial Government
and exiled to Zimbabwe, then known as Southern Rhodesia. The Nyasaland African Congress was proscribed. This created a
partial
vacuum on the local political scene. Mr Orton Ching'oli Chirwa formed a political party known as Malawi Congress Party (hereinafter
referred to as "MCP") to fill in that vacuum, and he became the first President of the Malawi Congress Party, and Mr Aleke
Banda became its first Secretary-General. The MCP became, de facto, the only political party for Africans.
On 1st April 1960, Dr Banda was released from prison in Zimbabwe and when he came back he was handed the Presidency of the MCP. In the same year, the MCP established the Malawi Press Limited
for the specific purpose of printing and publishing news in a newspaper called the "Malawi News" which is in circulation
up to the present day. This was originally produced on an old duplicating machine.
The initial capital for Malawi Press Ltd was raised largely from contributions by members of the public through the MCP. Other
funds were raised by the sale of membership cards of the MCP. In due course, a sum of
30,000.00 was realised. This sum of money was handed to Dr Banda as president of MCP. Part of this money was used to
buy a printing press on which Malawi News was printed. When the Malawi Press Ltd was incorporated, there were two shareholders,
namely, Dr Banda as President of MCP and Mr Aleke Banda as Secretary General of the MCP. Dr Banda held 99% of the shares, and
Mr Aleke K Banda held 1%. They both held those shares on behalf of the MCP. This shareholding stood like that until 1973.
In 1969, Press Holdings Limited was formed as a holding company for a number of companies, including Malawi Press Limited.
The original shareholders of this company were the late Mr Richard Katengeza and the late Mr Sydney Somanje as nominees of the people
of Malawi. It must be noted by this time, that de facto, Malawi was a one-party State.
In 1970, the Central Executive Committee of the MCP decided that the original shareholders of Malawi Press Ltd, namely, Dr Banda
and Mr
Aleke Banda, should be shareholders of Press Holdings Ltd and Dr Banda held 499,999 shares, while Mr Aleke Banda held one share,
both as nominees of the people of Malawi.
In 1973, Mr Aleke Banda was expelled from the MCP. As a consequence of that expulsion, he was required to transfer the single
share he held. He did transfer that share to another MCP nominee.
From 1974, Dr Banda became Chairman of Press Holdings Ltd and Mr Aleke Banda became Deputy Chairman and Managing Director. However,
in 1980, Mr Aleke Banda was detained and was forced to transfer the single share he held once again. The share was transferred
to the late Mr Sydney Somanje, and when Mr Somanje died, it was transferred to Press Holdings Ltd and on 13th May 1994, the single
share was transferred to Mr John Z U Tembo. It is quite clear, therefore, that Dr Banda and Mr Aleke Banda and later, Mr Tembo,
held those shares as nominees, on behalf of the Malawi Nation. As time went by, Press Holdings Ltd became, in essence, a quasi-public
body and enjoyed preferential treatment, for example, its loans were guaranteed by the Government. The company was considered
to be a vehicle for development. Because of its status as a quasi-public body, the company enjoyed considerable credit facilities
from the banks. Unfortunately, it became heavily indebted and because of its position in the economy of the country, its collapse
would inevitably entail the collapse of the Malawi economy. This prompted the Malawi Government to seek financial assistance from the World Bank to rescue it from economic collapse.
The World Bank provided that loan to the Government and the Government in turn passed it on to the company. As security for
the loan, the company issued income notes with which it undertook to repay the loan.
It must be noted here that from an outsider's viewpoint, the shares held by Dr Banda appeared for all purposes to be his personally
and that he did not hold them on behalf of anybody.
In 1982, Dr Banda, whether under pressure or on his own wish, decided to settle the shares he held in Press Holdings Ltd in a trust
known as the Press Trust. On 10th February 1982, by the Press Trust Deed, he settled his shareholdings in the Trust for the
benefit of the Malawi Nation. On 5th March 1982, the Press Trust was incorporated under the Trustees Incorporation Act (Cap
5:03) of the Laws of Malawi. As a way of reinforcing the objective of the Press Trust, that it was created for the benefit
of the Malawi Nation, the person holding the office of Minister of Finance in the Malawi Government was made an ex-officio
trustee of the Press Trust. The initial Trustees were Dr Banda, the settlor, the Minister of Finance, who was Mr C Chakakala
Chaziya, the late Mr Aaron Gadama, and the late Mr John Ngwiri. Under Clause III and Clause XI(4) of the Press
Trust Deed, Dr Banda, as settlor, "freely and voluntarily and in consideration of his love and affection for
and dedication to the Malawi Nation and in furtherance of his desire to encourage, assist, promote and advance the well-being and
welfare of the Malawi Nation, grante(d) and conveye(d) unto the Trustees" his shareholding in Press Holdings Ltd. However,
the shares were not transferred to the trustees until the 16th December 1993, after a period of over 10 years from the creation of
the Trust. Meanwhile, Dr Banda had been paid a sum of K999,998.00 for the 499,999 shares he held in the Press Holdings Ltd.
The present Government, viewing the situation of the Press Trust as a trust created for the benefit of the Malawi Nation, decided
to reconstruct
the Trust under an Act of Parliament through the Press Trust (Reconstruction) Act, 1995 to maximise the benefit for the Nation.
In 1983, Press Holdings Ltd was restructured and this was done through the Press Reconstruction Agreement dated 14th December 1983.
Briefly, this is the history of the Press Trust. The Press Trust (Reconstruction) Act which is being challenged by the respondents
was, as stated by Mr Aleke Banda in his affidavit, "merely intended to reconstruct or rearrange the administration of the Press
Trust with a view to enhancing the opportunity by beneficiaries of the Press Trust, namely, the people of Malawi, of deriving full
benefits from the proceeds of the Press Trust property with a view to ensuring that Press Trust is not administered...for the benefit
of only selected members...."
On the 6th November 1995, Parliament met in Zomba. The Clerk of Parliament circulated to Members of Parliament a bill entitled
"Presss Trust (Reconstruction) Bill. There are three parties currently represented in the National Assembly. The
United Democratic Front (UDF) has the largest number of Members of Parliament, followed by the Malawi Congress Party (MCP) and the
Alliance for Democracy (AFORD). The Party in Government, that is the UDF, does not command an absolute majority to enable
it pass legislation with a simple majority. An alliance was, therefore, formed with AFORD to redress this situation.
However, even with this alliance, the UDF and AFORD could not constitute two-thirds of the Members entitled to vote as required by
certain provisions of the Constitution and Standing Orders, except that the alliance created a numerical advantage to pass legislation
by a simple majority.
On 7th November 1995, that is, on the following day, the Minister of Finance, Mr Aleke Banda moved a Motion to dispense with the
requirement of notice to Members under Standing Order 114. Standing Order 114(1) is couched in these terms:
"114-(1) Except as provided by paragraph (4) every Public Bill shall be published in the Gazette in at least two
issues at intervals of not less than seven days and the first publication shall take place not less than 21 days before the Bill
is read a first time."
Standing Order 114(4) is phrased in the following terms:
"(4) Where, in the opinion of the responsible Minister, a Government Bill is so urgent or of such nature as
not to permit of compliance with all or any of the provisions of the Standing order relating to the publication of Bills, the Minister
may, before presenting the Bill under Standing order 116, move without notice a motion that those provisions be dispensed with in
respect of that Bill and, upon such a motion being carried, those provisions shall be suspended, and be deemed always to have been
suspended in respect of that Bill."
There was stern opposition from MCP Members in the Chamber to the adoption of this Motion. At the end of the debate on this
Motion, the question was put to the House by the Speaker and a division was called and after the Members were counted, the Motion
was carried. Thereafter, the House was suspended for tea break. When the House resumed sitting after tea break, the MCP
Members did not return. The Members present in the Chamber debated the Bill and it passed all the stages on the same day, and
a few days later the President assented to the Bill and it became law.
It was the respondents' contention in the lower Court that the Act is null and void, in that it was passed in contravention of Standing
Order 114(1) and s.96(2) of the Constitution. The respondents further contended that the conduct of business in the National
Assembly on the 7th November 1995 in respect of that Act was unconstitutional and that the Act was, therefore, null and void.
There is now an appeal before us by the appellant against that decison by Mwaungulu J. The issues which fall for determination, as raised by the appellant, are:
(1) Did the minister of Finance act in breach of Section 96(2) of the Constitution in putting a Motion without
Notice to introduce the Press Trust (Reconstruction) Bill 1995? If so, did this effect the validity of the Act?
(2) Was the National Assembly quorate, in accordance with Section 50 of the Constitution properly construed,
when it passed the 1995 Act? If not, should the Courts in any event recognise the legislature in accordance with the doctrine
of necessity?
(3) Did the Speaker act in breach of the Constitution in deciding to debate the issue as to quorum rather
than count the members of the National Assembly present and adjourn the Assembly? If so, is his action justiciable by the Courts?
(4) Did the 1995 Act arbitrarily deprive the Trustees of the Press Trust of any property in breach of Section
28(2) of the Constitution?
(5) Did the 1995 Act discriminate against the Trustees of the Press Trust or the Press Trust itself in breach
of Section 12(v) and/or Section 20(1) of the Constitution?
(6) Did such breaches of the Constitution, if any, go to the root of the Constitution and/or affect human
rights so as to require the Court to declare the 1995 Act invalid? Or should the Court in its discretion
refuse the relief sought? Should the Court in any event use its powers under Section 11(3) of the Constitution to give
effect to the 1995 Act?
(7) Do the Plaintiffs have the appropriate locus to seek the relief sought?
The first question which we have to consider is this. Did the Minister of Finance act in breach of s.96(2) of the Constitution
in moving a Motion without notice under SO.114(4), by introducing the Press Trust (Reconstruction) Bill, 1995? If so, did this
affect the validity of the Act?
Section 96(2) is in the following terms:
"In performing the duties and functions referred in this section the Cabinet shall make legislative proposals available in time
in order to permit sufficient canvassing of expert and public opinion."
Standing Order 114(4) stipulates:
"Where, in the opinion of the responsible Minister, a Government Bill is so urgent or of such nature as not to permit of compliance
with all or any of the provisions of the Standing Order relating to the publication of Bills, the Minister may, before presenting
the Bill under Standing order 116, move without notice a motion that those provisions be dispensed with in respect of that Bill and,
upon such a motion being carried, those provisions shall be suspended, and be deemed always to have been suspended in respect of
that Bill."
It was submitted by Mr Nyirenda, on behalf of the respondents, that in construing s.96(2) and SO 114, the Court must consider the
provisions of s.11(2)(a), which provide that in interpreting the provisions of the Constitution a court of law shall promote
the values which underlie an open and democratic society.
It will be recalled that on 6th November 1995, the Clerk of Parliament circulated the Bill in question to Members of Parliament and
the following day the requirement under SO 114(1) was suspended by a motion under SO 114(4) and the Bill was introduced.
It was contended by Mr Nyirenda that Members were not given sufficient time, both in terms of s.96(2) of the Constitution and in
terms of SO 114(1).
It was further contended by Mr Nyirenda that under s.96(2), an obligation has been imposed upon the
Cabinet to make legislative proposals available in time in order to permit sufficient canvassing of expert
and public opinion. He submitted that this being the case, SO 114(4) is invalid,
since, in effect, it purports to suspend s.96(2). Furthermore, Mr Nyirenda submitted that SO 114(4) gave powers to elected Ministers;
and not Ministers who were not elected as Members of Parliament, such as Mr A K Banda.
On behalf of the Attorney General, Mr Elias denied that s.96(2) had been violated by the Minister of Finance in moving a Motion under
SO 114(4). It was his submission that provided the stages in the legislative process were properly complied with as required
by Chapter VI of the Constitution, the Act would be valid even if there was insufficient time as required by s.96(2). We concur
with this submission, and indeed Mwaungulu J conceded that failure on the part of the Executive to comply with s.96(2) did not invalidate the Act. Indeed, the Constitution
makes specific provisions for the separation of powers between the Legislature and the Executive. Under s.48(1) of the Constitution,
all legislative powers are vested in the Legislature. The validity of an Act of Parliament depends on whether the Legislature
has complied with the provisions under Chapter VI of the Constitution, and not under Chapter VIII thereof, and in particular s.96(2)
of the Constitution, which deals with the duties and functions of the Executive.
At no time does the Constitution, under Chapter VI make provision for any period
of notice to be given before the Bill goes through all the stages in accordance with s.49(2).
While s.96(2) of the Constitution does not specify to whom legislative proposals should be made available, whether to Members of
Parliament or members of the public generally, or to both, it appears to us that this section refers to what the Cabinet (Executive)
should do with regard to the provision of sufficient time in order to permit the canvassing of expert and public opinion. Whereas
SO 114(1) refers to the procedure to be adopted by the National Assembly (Legislature) as far as the giving of notice to Members
of Parliament is concerned. With respect, we do not find any nexus between s.96(2) and SO 114. Therefore, failure to comply with s.96(2) cannot render SO 114(1) invalid, asMwaungulu J held. In any case, there is no evidence on record which would establish that the Cabinet did not comply with the provisions
of s.96(2). A passage from Cases and Materials on Constitutional and Administrative Law by Geoffrey Wilson, 1966 Edn,at page
177, is on this very point. It states:
"The process of legislation does not begin in Parliament. It begins, as far as public bills are concerned, and these form
the bulk of legislation, in government departments. They have a near monopoly to legislative initiative. It is, therefore,
to them, rather than to the Standing Committees which Parliament appoints to consider public bills, that representatives of affected
interests go to present their case. Indeed, it has almost become a rule, as well as being a matter of practical politics, for
government departments to consult the representatives of the interests affected before introducing a bill into Parliament, and this
also applies to delegated legislation. In the latter case, the requirement has been made statutory in some instances.
It is apparently not usual for a department to disclose the actual draft of a bill before it has been presented to Parliament, but
the general proposals may be discussed and criticisms and representations received, except where secrecy
is essential, as with the budget proposals. In estimating, therefore, the extent to which governments
have their own way so far as legislation is concerned, it is a mistake to look exclusively at what happens in Parliament. They
may already have modified their proposals as a result of representations made even before the bill has been presented."
We are of the view that the Press Trust (Reconstruction) Bill, 1995 was introduced in Parliament in complete conformity with both
the Constitution and the Standing Orders which are made under s.56(1) of the Constitution. It is, therefore, not correct, as
Mwaungulu J held in his judgment, that the Minister of Finance acted in breach of the Constitution and the Standing Orders.
The latter part of Mr Nyirenda's submission, namely, that the Minister was not entitled to introduce the Bill because he was not
a Member of Parliament has already been answered by this Court in the case of Attorney General v. Chipeta,
MSCA Civil Appeal No. 33, (1994). In that case, Banda CJ, said at pp.6-7:
"Hon. Dr. Mzunda has contended that the meaning of s.96 para (e) is that if there is a debate
in Parliament involving the Ministry of Labour and Manpower Development it is only the Minister of Labour that would
be required to be available in order to answer queries and take part in the debate concerning the Ministry of Labour. Other
unelected Ministers would not be required to be available because matters pertaining to their Ministries will not be raised.
He argued that the Speaker would inform the Minister concerned to make himself available in Parliament and that this can be achieved
by giving the Minister concerned 24 hours notice and that it would be of some advantage if the Minister was available. Hon.
Dr. Mzunda submitted that para (e) of Section 96 does not therefore give a right to the unelected Ministers to sit in the National
Assembly.
This argument, in our judgment, can only apply to questions to Ministers on which notice is given. It cannot apply to general
debates like the debate on the motion on the president's State Opening Speech or the debate on the motion on the Budget Statement.
Debates on these motions are wide ranging and as we understand it members do not give advance notice to the Speaker on what they
are going to say in their contributions. It would not be possible, therefore, for the Speaker to know which Ministers he should
invite to be available to answer queries and to participate in the ensuing debate.
Hon. Dr. Mzunda's argument is also flawed in one serious respect. It must be noted that para (e) of Section 96 states that
Ministers must be available to Parliament for purposes of answering queries or participating in any debate pertaining to the content
of the policies of the Government. They can only take part in any debate if they are sitting in the National Assembly and listening
to the issues which are being raised. While it is true that a Minister is individually responsible to the President for the
affairs of his Ministry, as a member of the Cabinet he is collectively responsible for all government policies. In our view
the interpretation which Hon. Dr. Mzunda has attempted to place on para (e) of section 96(1)
of the Constitution is unrealistic, and unduly restrictive and would seriously affect and disrupt the business of the National Assembly.
We can magine a situation, if we accepted Dr. Mzunda's contention, when debates would be held up in order for a Minister to come
to the Assembly to answer queries which are being raised. Indeed Dr. Mzunda's interpretation would not permit one Minister
answering questions for another. That in our judgment cannot be an efficient way in which the legislative and executive duties
can be performed. Bills can only be explained in the National Assembly by Ministers being present. The objects and reasons
which the Attorney General gives at the back of the Bill is not the explanation which Parliament intended in paragraph (c) of Section
96(1) of the Constitution. It is, therefore, our considered view that the most effective way of being "available"
is to be physically present where you are required to be. We are satisfied that for Ministers to be able to answer queries
and to be able to explain Bills and to participate in any debate pertaining to government policies they must sit in Parliament on
the front benches of the government side."
The Minister of Finance had, therefore, every right to move the Motion. We hold, therefore, that there was no breach of s.96(2).
Even if there was a breach of s.96(2), we are of the view that, that breach would not invalidate the Act. In the first place,
as already pointed out earlier on, the section is under Chapter VIII, which deals with duties and functions of the Executive, and
not functions and duties of the Legislature in Chapter VI of the Constitution. The section is concerned with the formulation
of legislative proposals, which, as we have seen, are
formulated at a much earlier stage. If the requirement under s.96(2) was necessary, that is, for the purposes of legislation,
it would have been included in s.48(1) of the Constitution.
It was submitted, on behalf of the respondents, that any breach of the Constitution would render the Press Trust (Reconstruction)
Act unconstitutional and, therefore, would be null and void. We do not think so, for the reasons we have given earlier on,
that is, that some provisions in the Constitution are related to capacity and others are related to procedure. Breach of a
constitutional provision as to capacity is normally fatal, but not necessarily so in relation
to procedural breaches. If this were not so, we would have extraordinary consequences, with regard to implementing our constitutional
provisions.
We would also like to point out that compliance with s.96(2) is not a condition precedent to the validity of enacting legislation,
so that the Press Trust (Reconstruction) Act cannot, therefore, be invalid because of failure to comply with s.96(2) of the Constitution.
We will now consider the issue of whether the National Assembly was quorate in accordance with s.50(1) and (2) of
the Constitution as read with SO 26 and SO 27 when it passed the Press Trust (Reconstruction) Act. Section 50(1)
and (2) of the Constitution and SO 26 and SO 27 state:
"50. (1) The quorum of each Chamber shall be formed by the presence at the beginning of
any sitting of at least two thirds of the members of that Chamber entitled to vote, not including the Speaker or a presiding member.
(2) If it is brought to the attention of the Speaker or person acting as Speaker by any member of the Chamber
over which he or she is presiding that there are less than the number of members prescribed by the Standing Orders of that Chamber
present and after such interval as may be prescribed in the rules of procedure of the Chamber, the Speaker or person acting as Speaker
ascertains that the number of members present is still less than that prescribed by the Standing Orders Chamber, he or she shall
adjourn the Chamber."
Standing Orders 26 and 27 are in the following terms:
"26. A quorum of the Assembly or of a Committee of the whole House shall consist of two-thirds of all the Members
of the Assembly besides the person presiding.
27.- (1) If at any time the business of the Assembly has commenced, or when the Assembly is in
Committee and a vote is required to be taken, the attention of Mr. Speaker or the Chairman is called to the absence of
a quorum, Mr. Speaker or the Chairman shall count the Assembly or the Committee, as the case may be. If on the first count
a quorum does not appear to be present, Mr. Speaker or the Chairman shall cause the division bell to be rung as for a division, and
if no quorum be present after the lapse of three minutes he shall announce to the Assembly that there is not a quorum present and
shall proceed as follows -
(a) if Mr. Speaker be in the Chair, he shall adjourn the Assembly without question put until the next sitting
day;
(b) if the Assembly be in Committee, the Chairman shall leave the Chair and report the fact to Mr. Speaker,
who shall adjourn the Assembly without question put until the next sitting day:
Provided that if attention is drawn to the absence of a quorum before the commencement of business, Mr. Speaker or the Chairman,
as the case may be, shall, before taking the action described in paragraphs (a) and (b), suspend the sitting for half an hour."
The wording of the constitutional provisions and Standing Orders is identical, except that Standing Order 26 is wider, in that it
does not limit
the need for a quorum "at the beginning" as in s.50(1) of the Constitution. It was conceded by the Attorney General
that to that extent only, the Standing Order is inconsistent with the Constitution and therefore invalid. So, at this juncture,
all what we have is that there should be a quorum "at the beginning of a sitting". Under s.59(2) of the Constitution,
it is provided that there shall be at least two sittings of the National Assembly and the Senate every year. In this connection,
Mwaungulu J said the following in his judgment:
"The Attorney General's position is that what the section means is that after that the number can dwindle to any level provided
the quorum was constituted at the beginning. The section only says that at the beginning of the sitting the Quorum of the National
Assembly shall be two thirds of the House. What the section does not say will help to appreciate what it does say. The
section does not say as the Attorney General contends that after the beginning and in the course of the proceedings
the Quorum shall not be two thirds of the House. Neither does the subsection say, as Mr. Nyirenda contends that after having
two thirds at the beginning after that in the course of the proceedings the quorum shall be two thirds. Subsection (1) alone,
therefore, only helps us to know what the quorum should be at the beginning of the sitting. It does not say what should happen
thereafter. It leaves a gap. I will come to the gap later in the judgement. Let us concentrate more on subsection
1.
There are problems with reading so much in subsection 1. The difficulty is underscored by a comparison of a Scottish and an English
case. I have not read the Scottish case of Henderson v. James Louttit & Co. Ltd, (1894) 21 Rettie 674. The report is not available in our library. The case is, however
adequately referred to in the English case of In Re Hartley Baird Ltd. (1955) Ch. D. 143 in a judgement of Winn-Parry, J. In
that case the articles of association provided for the quorum in the following manner. Article 52 provided:
'No business shall be transacted at any general meeting unless a quorum is present when the meeting proceeds
to business. For all purposes the quorum shall be ten members personally present.'
Article 53 provided:
'If within half an hour from the time appointed for holding a general meeting a quorum is not present, the meeting, if convened on
the requisition of members, shall be dissolved. In any other case it shall stand adjourned to the same day in the next week, at the
same time and place, and if at such adjourned meeting a quorum is not present within an hour from the
time appointed for holding the meeting, the members present shall be a quorum.'
The facts were very simple. At the meeting of shareholders a quorum was formed at the beginning of the meeting. The resolution
was made after one member, dissatisfied with the resolution, left and reduced
the quorum in the process. The question was whether a resolution passed without quorum at the end was valid. Winn-Parry
J held that it was valid. He starts by the decision of the Scottish case. The crux of the Judge's reasoning is in the
following statement:
'Prima facie those words are apt to apply to the case before me, but as I read the somewhat short report and look at the facts, it appears to
me that statement can be properly regarded as obiter dictum. In any event, with all respect to that decision of the Court of Session, I feel compelled primarily to concentrate on the
language of the two relevant articles before me. From the force of that language, I have come to the conclusion that I ought
not to follow the Scottish case, but that I ought to conclude that the meeting in question of the holders of the "B" ordinary
shares was one at which a valid class resolution was passed, because at the beginning of the meeting, that is when the meeting proceeded
to business, there was present a quorum as provided by article 46 of the articles of association.'
With respect to Winn-Parry J the conclusion is only justified by the premise that he took on the purport of article 52. That
premise is found at page 146 when he says:
'It provides that no business is to be transacted at a general meeting unless a condition is fulfilled, and that condition is a composite
one. It requires not only that a quorum is to be present, but qualifies that by saying that the quorum is to be present when
the meeting proceeds to business, then a formula is set out for calculating the number who are to form the quorum.'
I agree that article 52 creates a condition precedent for transaction of business but I am not of the view that the condition is
a composite one. Winn-Parry, J proceeds on the basis that because the condition is a composite one the words "when the
meeting proceeds to business" are a qualification, in other words they
are an element of the condition. Accepting that they are qualifying one has also to accept that the words could be descriptive.
In the latter sense they are not part of the condition. They only describe when the quorum should be ascertained for purposes
of transacting the business. In short all the article says is that don't start any business if, when you begin business, there
is no quorum. Obviously, it does not say that the quorum can dwindle afterwards."
The trial Judge went on to say at page 270 as follows:
"With respect to Winn-Parry J, the article does cover a meeting at which a quorum is present at the beginning when the meeting
proceeds to business, but at which a quorum has ceased to be present at the time when the meeting proceeds to vote on any resolution
put before it. Now the first part of article 53 deals with a situation where the quorum cannot be constituted at the beginning
of the general meeting. The article provides that the meeting if convened shall be dissolved. The latter part deals with
any other case, for the introductory words are "in any other case". This includes, in my view, the situation where,
when the members proceed to vote on a resolution and at that stage the Quorum is not constituted. In any case article 52 provides
that for all purposes the quorum shall be ten members. The article itself provides that the
quorum shall be constituted at the beginning of the meeting. It also says that for all purposes the quorum shall be ten members.
For purposes of voting the number shall be ten. If the members are to vote, for that purpose the quorum shall be ten.
It does not matter that at the beginning there are ten. If they are less then, at a voting
stage, according to the last bit of article 53, such members as were present at the voting stage constitute a quorum at a subsequent
meeting. It is important to realise that according to article 53, the first part, if at the beginning of the meeting there
is no quorum the meeting shall stand dissolved. There is no provision for the re-constitution of the meeting. While as
in any other case, and this includes, and must be the only case, the situation where a quorum
was properly constituted and there is less than the quorum, the members who remain after the quorum has dwindled can convene
and constitute the quorum at the subsequent meeting. It is not correct therefore that article 53 does
not save the situation where the quorum has dwindled after a member has left for whatever reason and reduced the quorum in the process."
It can be seen from this passage that Mwaungulu J was at pains to distinguish the case of Re Hartley Baird Ltdfrom that of Henderson v. James Louttit & Co Ltd.
The cardinal principle to be followed when interpreting a constitution or indeed a statute is that there is a presumption that the
legislation is constitutional unless demonstrated otherwise - Ryan v. AG(1963) IR 294. Lord Diplock, in the case of Attorney General v. Jobe(1984) 1 AC 692, at p.702, put it this way:
"The draftsmanship of those provisions of sections 8 and 10 of the Act, which their Lordships have just been examining, is characterised
by an unusual degree of ellipsis that has made it necessary to spell out explicitly a great deal that is
omitted from the actual words appearing in the sections and has to be derived by implication from them. In doing so their Lordships
have applied to a law passed by the Parliament in which, by the Constitution itself, the legislative power of the Republic is exclusively
vested, a presumption of constitutionality. This presumption is but a particular application of the canon of construction embodied
in the Latin maxim magis est ut res valeat quam pereat which is an aid to the resolution of any ambiguities or obscurities in the actual words used in any document that is manifestly intended
by its makers to create legal rights or obligations. In passing the Act by the procedure appropriate for making an ordinary
law for the order and good government of The Gambia without the formalities required for a law that amended Chapter III of the Constitution
the intention of Parliament cannot have been to engage in the futile exercise of passing legislation that contravened provisions
of Chapter III of the Constitution and was thus incapable of creating the legal obligations for which it purported to provide.
Where, as in the instant case, omissions by the draftsman of the law to state in express words what, from the subject matter of the
law and the legal nature of the processes or institutions with which it deals, can be inferred to have been Parliament's intention,
a court charged with the judicial duty of giving effect to Parliament's intention, as that intention
has been stated in the law that Parliament has passed, ought to construe the law as incorporating, by necessary implication, words
which would give effect to such inferred intention, wherever to do so does not contradict the words actually set out in the law itself
and to fail to do so would defeat Parliament's intention by depriving the law of all legal effect."
In his judgment, Mwaungulu J stated that if one reads s.50(1) and (2) together, the inference is that the requirement of a quorum should persist throughout the
deliberations of the bill and not at the beginning of a sitting only. We do not agree with this interpretation. The section
clearly requires a quorum at the beginning of the sitting. The reasons the
Judge advanced for rejecting the interpretation adopted in the Hartley Baird case and adopting the interpretation in Henderson v. James Louttit & Co Ltd are clearly incorrect and not valid. The provisions of the articles of association in these two
cases are not similar. In the Hartley Baird case, the provisions of Article 52 provided that:
"No business shall be transacted at any general meeting unless a quorum is present when the meeting proceeds to business.
For all purposes, the quorum shall be ten members personally present."
As stated earlier on, the facts of the Hartley Bairdcase were these. At a meeting of shareholders, a quorum was formed at the
beginning of the meeting. In the course of the meeting, one member who was dissatisfied with the proceedings left and a resolution
was passed without a quorum. The question before the Court was whether the resolution passed without a quorum was valid.
Winn-Parry J held that it was valid because, "at the beginning of the meeting, that is, when the meeting proceeded to business, there was
present a quorum as provided by article 46 of the articles of association."
We have considered the cases of Hartley Bairdand Henderson v. Louttit and have come to the conclusion that the proper case to follow
is the Hartley Baird one. We have so decided because the facts in the Hartley Bairdcase are more relevant to those in the present
case. To hold that a quorum of two thirds is required throughout a sitting is to read
into the Constitution what the framers of the Constitution and Parliament never intended to be included.
We are of the view that the two thirds quorum is required at the beginning of a sitting. Similarly, SO 26 should be interpreted
to mean that a quorum is required only at the beginning of a sitting, otherwise it would be inconsistent with s.50(1) of the Constitution
by interpreting it any other way.
It is to be observed that there is no dispute that the National Assembly had the requisite two thirds quorum at the beginning of
the sitting on 7th November 1995. The only dispute relates to what happened later that day. In our opinion, the walk-out
by the opposition members did not affect the status of the quorum in terms of s.50(1).
The next question to be considered is whether the Speaker acted in breach of the Constitution in declining to debate the issue as
to quorum rather than count the Members present and adjourn the House, and if so, should the Speaker be answerable to the Courts
for such action?
It will be recalled that on 7th November 1995, after the Motion moved by the Minister of Finance was put and carried, the Speaker
suspended the House for tea break. This was at 4.00 pm. At 4.15 pm, the House resumed sitting, but without Members from
the MCP, except
Mr Situsi Nkhoma, Member of Parliament for Kasungu South. On a point of order, he brought the Speaker's attention to SO 26
and SO 27 as regards the absence of a quorum. In actual fact, he wanted the Speaker
to adjourn the House until the following morning, in terms of SO 27(1)(a) and (b). However, other Members took the floor and
the Bill was debated upon without the Speaker complying with these provisions. It was submitted by Mr Nyirenda, on behalf of
the respondents, that failure by
the Speaker to adjourn the House in terms of these provisions was a breach which rendered the Act invalid. We have already
held that, in fact, a quorum of the National Assembly was formed at the beginning of the sitting on 7th November 1995. The
point of order which Mr Situsi wanted to raise did not, therefore, arise. We have earlier on cited what SO 27(1) says.
It says:
"If at any time after the business of the Assembly has commenced, or when the Assembly is in Committee and a vote is required
to be taken, the attention of the Speaker or the Chairman is called to the absence of a quorum, Mr Speaker or the Chairman
shall count the Assembly or the Committee...."
It is clear to us that SO 27(1) can only be invoked by a Member if a vote is required to be taken. If a vote is not required
to be taken, no Member is entitled to draw the Speaker's attention to the lack of quorum.
We are of the view that at that stage, the need had not yet arisen to draw the Speaker's attention to the lack of a quorum, because
a vote was not required to be taken at that point in time. Mr Situsi Nkhoma's intervention was, therefore, premature and the
Speaker could not have been in breach of that Standing Order at that time. However, assuming the need arose to draw the Speaker's
attention as to lack of a quorum, was the Speaker answerable to the Courts, and did his action invalidate the Act? In our considered
opinion, under s.53(5) of the Constitution, he is liable only to the National Assembly. The section provides that:
"Any person who is elected Speaker, or any person acting as Speaker, shall discharge his or her
functions and duties and exercise such powers as he or she has by virtue of that office independent of the
direction or interference of any body or authority, save as accords with the express will and the Standing orders of the Chamber
in which he or she sits."
It is our considered view that this section provides recognition of the privileges of the legislature and it protects the Speaker
from challenges in our Courts as a result of his exercise of the powers conferred upon him. It is, therefore, clear that if
the Speaker fails to enforce the procedural rules of the National Assembly, he could only be disciplined by the National Assembly
itself, and if necessary the National assembly itself can remove him. After all, it elected him. Moreover, in the instant
case, the respondents themselves created the situation by staging a walk-out, and it would not be proper for the minority to frustrate
the wishes of the majority. He who comes to equity must come with clean hands.
It is necessary at this juncture to mention a little about the doctrine of necessity in interpreting the Constitution. We will
expound this doctrine in more detail later in this judgment. We also believe that this doctrine should be applied or invoked
in the present circumstances to avoid creating a legislative vacuum. Our Constitution is designed in
such a way as to have a government in power which does not command a majority in the National Assembly. In any event, if we
construe the Constitution strictly, no government would be able to function properly, and this would be to the detriment of the nation
as a whole.
For instance, if more than two thirds of the Members of Parliament were consistently to ignore the summons given by the Speaker of
the National Assembly, such an occurrence would incapacitate the government in power from passing legislation which is the primary
function of the legislature. Again, this would justify the invocation of the doctrine of necessity by the Courts to prevent
a vacuum being created by crippling the legislative branch of government.
Our standpoint with regard to SO 27 is simply this. The Courts are not concerned with purely procedural matters which regulate
what happens within the four walls of the National Assembly. But the Courts will most certainly adjudicate on any issues which
adversely affect any rights which are categorically protected by the Constitution where the Standing Orders purport
to regulate any such rights. In the case under consideration, we do not believe that a breach of SO 27 by the Speaker of the
House affected any rights guaranteed by the Constitution. Stephen J summed up this point very clearly in Bradlaugh v. Gosset,at page 286, when he concluded that:
"Some of these rights are to be exercised out of Parliament, others within the walls of the House of Commons. Those which
are to be exercised out of Parliament are under the protection of this Court, which, as has been shown in many cases, will apply
proper remedies if they are in any way invaded, and will in so doing be bound, not by resolutions of either House of Parliament,
but by its own judgment as to the law of the land, of which the privileges of Parliament form a part."
We also accept that over their own internal proceedings, the jurisdiction of the National Assembly is exclusive, but, it is also
our view that it is for the Courts to determine whether or not a particular claim of privilege fell within such jurisdiction.
We conclude by holding that by acting in breach of SO 27, the Speaker of the House did not infringe on any constitutional right which
is justiciable before the Courts. The remedy for such breach can only be sought and obtained from the National Assembly itself.
Perhaps it would be prudent at this juncture if we make a few observations.
Firstly, we wish to observe that the meaning of the term "sitting" under s.59(2) of the constitution is inconsistent with
the meaning given that term under Standing Order 3. The meaning in that Standing Order is in line with the general practice
currently in use in our Parliament and in other Parliaments; whereas the meaning in the Constitution would appear to be incorrect,
because a sitting would appear, in our view, to be the period between the Speaker's prayer and the end of business in a particular
day.
The Constitution lays down a number of rules in respect of the Legislature. They fall, broadly, into three categories.
First, there are rules which go to the capacity of the Legislature to act.
If the National Assembly were to act in breach of a capacity rule it would not be acting qua National Assembly and, subject to the discretion of the Court, such acts would be, ipso facto, invalid. There are a number of such "capacity provisions" in the Constitution, for example: section 56(2)
which provides that the National Assembly may act save where more than two thirds of its seats are vacant, as defined in s.63;
secondly, section 50(1), which provides that the National Assembly is quorate if, at the beginning of a sitting, there are present
at least two-thirds of the members entitled to vote, not including the Speaker or a Presiding Member; and thirdly, section
196 on amendment by Parliament of the Constitution.
These rules set out when the National Assembly is to be treated as the National Assembly within the meaning of the Constitution,
and failure to comply with these provisions would generally be fatal.
Secondly, other rules regulating the National Assembly, are, in principle, rules of procedure only. Assuming that the requirements
as to
capacity are met, if the National Assembly acts in breach of a procedural rule, it acts nevertheless in
its full capacity as the National Assembly.
There may be legal consequences flowing from the breach of
a procedural rule - for example, it is for the Speaker to safeguard the integrity of the Standing Orders of the National Assembly
- but such breaches do not necessarily go to deprive the National Assembly of its identity and capacity to act. Examples of
procedural rules include: section 50(2) on the steps to be taken by the Speaker if the absence of a quorum is drawn to his
attention; and section 96(2) on the need for the Cabinet to make legislative proposals available in time to permit sufficient
canvassing of expert and public opinion.
The third category of rules are those which limit the content and substance of the laws which the National Assembly may make, such
as
Chapter IV on human rights. Laws infringing such Constitutional rights will to that extent, be invalid and such a provision
is found in section 5 of the Constitution.
Even if there is a breach of section 50(2) of the Constitution this would not render the Act invalid. Section 50(2) lays down
a rule of procedure only; it does not affect the capacity of the National Assembly to act and to pass legislation. This
is supported by the following scenarios. The quorum rule, insofar as it affects
the capacity of the Legislature to act is clearly laid down in section 50(1). No further implication is required to give sense
to that rule. To regard section 50(2) as a capacity rule would be to confer upon the National Assembly the power to regulate
its own capacity. In fact, the Constitution only permits the National Assembly to regulate its own procedure, see s. 56(1).
Section 50(2) is, on its face, a rule of procedure, requiring the Speaker to take certain procedural steps if less than two-thirds
of the members of the National Assembly are present. That it goes only to procedure, and not to capacity, can be illustrated
by considering the position where there are in fact less than two-thirds of members present but this matter is not drawn to the attention
of the Speaker by any member of the Chamber. There can be no argument but that in those circumstances section 50(2)
would not be engaged. It would impose no obligation upon the Speaker to count the members present and to adjourn the Chamber
if less than the relevant number were found to be present. Therefore, the National Assembly would retain its capacity to act
even though less than two-thirds of its members were present. Seen in that light, section 50(2) cannot be
a rule as to quorum which requires that the National Assembly should
lose its capacity to act if less than two-thirds of its members are present at any time during a sitting.
That view is buttressed by the nature of the Speaker's powers under section 50(2). He is required to adjourn the Chamber if
less than the requisite numbers are found to be present. A Chamber which acts when it should, strictly speaking, have been
adjourned will act in breach of a procedural rule. It does not follow that the Chamber thereby loses its capacity to act if
the rule which it has breached is a capacity rule. A breach of a rule determining the appropriate times for the Legislature
to sit cannot deprive the Legislature of its capacity to act where it decided to sit nevertheless.
It was, however, the respondents' submission, as stated by Mr Nyirenda, that the Constitution itself is the supreme law of the land
and
that all organs of the State are subject to it. It was his submission that s.5 of the Constitution, which states:
"Any act of Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such
inconsistency, be invalid...."
is clearly mandatory and it does not distinguish between procedural provisions and substantive provisions. He contended that
all breaches of the Constitution are, whether substantive or procedural, if inconsistent with any provision of the Constitution,
invalid.
With respect, we do not subscribe to this general interpretation of the provisions of the Constitution by the respondents.
As we have already pointed out, not all provisions the Constitution and not all provisions made under the Constitution invalidate
an act of Government if they are breached.
We now wish to turn to the trust itself. A point which should be clarified at the outset is the nature of the "Press Trust".
Snell's Principles of Equity, ... Edn at page 110 classifies trusts in the following manner:
"Private and Public. Trusts may also be divided, according to their end and purpose, into private and public, or charitable.
A trust is private if it is for the benefit of an individual or class irrespective of any benefit which may be conferred thereby
on the public at large; it is public or charitable if the object thereof is to promote the public welfare, even if incidentally
it confers a benefit on an individual or class. A private trust may be enforced by any of the beneficiaries, a public trust
by the Attorney General."
The trial judge appears to have held conflicting views regarding the nature of the Press Trust. In one breath, he held it to
be a charitable trust on the grounds that:
"Obviously, in taking the property of Press Trust from the original trustees of Press Trust to those that the Press Trust (Reconstruction)
Act had created, Parliament was transferring private property from one private person to another. Press Trust, as we shall
see shortly and as we mentioned earlier is a charitable trust. Charitable trust property, even though intended to benefit people
at large, is still private property. It is not public property. It is private property. The legal owners of any
trust property are the trustees. Even when the trustees register a trust as a charitable trust, in the eyes of the law the
legal owners are the trustees. The public or the people who benefit under the trust are only beneficiaries. They have
no legal title as against the legal trustees. Their right is only in equity."
In another breath, the learned Judge held at page 11 of his judgment that:
"The trust thus created is a private trust. It is governed by common law and subject to the Trustees Act. The property
the subject of the trust at this stage is private property. The property constituting the trust comes from private citizens
incorporated or not. It is owned by trustees who are private persons. The trustees have the full rights of
ownership subject to the dictates of the trust deed,
common law and statutes. The Press Trust subsequently was incorporated under the Trustees Incorporation Act. The Press
Trust is, therefore, a charitable trust."
Mr Msisha, Counsel for the respondents, argued and cited numerous authorities which asserted that to be a charitable trust the trust
must be exclusively for charitable purposes. Clause I, paragraph 5 of the Press Trust Deed stipulates as follows:
'"National Benefit Purposes", means any educational, cultural, charitable, artistic, scientific, social or other objects,
purposes and causes for the welfare, advancement and benefit of the Malawi Nation as so determined by the founder, trustee during
his life and thereafter by the Trustee under, the provisions of this deed."'
One of the cases cited by Mr Msisha which would disqualify the Press Trust as a charitable trust is the case of McGovern v. Attorney
General (1981) 3 All ER, 502. In delivering the judgment of the Court, Slade J opined that:
"Relevant principles of the law of charities.
With a view to making clear the reasons for my ultimate decision I think that, before turning to the particular provisions of the
trust deed, I should attempt to state what I conceive to be a few of the relevant basic principles of the law of charities.
Trusts for charitable purposes in this country enjoy a number of special privileges which are not enjoyed by trusts for purposes
of a non-charitable nature. Thus, if a trust deed shows a clear intention to devote the trust assets to charity, the trust
purposes will not fail for uncertainty merely because they are inadequately defined. Charitable trusts are in most respects
exempt from the rule against perpetuities. They are capable of being varied by way of scheme. Finally, they are enforceable
at the suit of the Crown:
'It is the province of the Crown as parens patriae to enforce the execution of charitable trusts, and it has always been recognised
as the duty of the law officers of the Crown to intervene for the purpose of protecting charities and affording advice and assistance
to the Court in the administration of charitable trusts.'
(See Wallis v. Solicitor General for New Zealand (1903) AC 173 at 181-182 per Lord Macnaghten.)
In the circumstances it is not surprising that the law requires a number of conditions to be fulfilled before trusts can be accepted
as being charitable. The general rule is that in order to achieve charitable status a trust, however, philanthropic, must satisfy
each of the following three requirements: (1) it must be of a charitable nature, within the spirit and intendment of the preamble
to the Statute of Elizabeth I (the Charitable Uses Act 1601, 43 Eliz I c 4), as interpreted by the courts and extended by statute;
(2) it must promote a public benefit of a nature recognised by the courts as a public benefit; (3) the purposes of the trust
must be wholly and exclusively charitable: see generally Snell's Principles of Equity (27th Edn, 1973, pp 143ff)."
A passage from Halsbury Laws of England, 4th Ednis also instructive. At page 287, paragraph 529, the learned author had this
to say:
"Public Trusts. Trusts for public purposes are either (1) charitable, in which case they are governed by the law relating to charitable trusts,
or (2) for public objects which are not of a charitable character.
With certain exceptions, trusts for public objects which are not of a public character are invalid
if they infringe the law which restricts the creation of perpetuities; and it seems that, even if they do not infringe the
law against perpetuities, such trusts will not in general be recognised by the court except in so far as they are for the benefit
of ascertained or ascertainable beneficiaries."
It is clear from the passage just quoted that charitable trusts are public trusts, but that not all public trusts are charitable
trusts.
Referring to the present case, and on the facts available before us, we would agree with Mr Msisha, Counsel for the respondents,
that the Press Trust is not a charitable trust, in that it fails to satisfy the third condition laid down in the McGovern case which
requires that to be a charitable trust, the purposes of the trust must be wholly and exclusively
charitable. As we have seen earlier on, the Press Trust, in Clause I, paragraph 5, includes purposes which are not wholly and
exclusively charitable, thereby offending the third condition. On the other hand, the Press Trust, on the same authorities
cited above, is not a private trust but a public trust. It is to be noted that in Malawi, the rule against perpetuities was abolished by statute. It is also clear that the Press Trust is for the benefit of ascertained
and ascertainable beneficiaries.
Another point raised by the Judge is ownership of the trust. He concluded in his judgment that, "in law, the trustees
were the owners of
the trust." It was submitted by Mr Elias, Counsel for the Attorney General that the assertion by the respondents that
by taking away the property from the original trustees and vesting the same in the new trustees appointed under the Act, the original
trustees were deprived of their right to manage the affairs of the trust cannot be sustained. He said that the trustees do
not own any property and that the right of management does not arise out of their ownership. He argued that they do not have
property, even in the wide sense of the term found in s.2(1) of the General Interpretation Act, which reads:
"'property' includes money, and every description of property, whether movable or immovable, animate or inanimate, obligations
and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incidental to property."
It was his argument that this definition embraces within the term 'property' interests which arise out of or are incidental to property,
but that the management of another's interests does not fall into that category. He cited to us the case of Tilkayat Shri Govindlalji
Maharaj v. The State of Rajasthan and Others(1963) 1 SCR 561, where at pp.608-609 Gajendragadkar J had this to say:
"There can be no doubt that the right to have custody of the property such as the Custodian has, or the right to manage property
such as the Manager possesses, or the right to administer the trust property for the benefit of the beneficiary which the trustee
can do, cannot be regarded as a right to property under Art. 19(1)(f) and for the same reason, it does not constitute property under
Art. 31(2). If it is held that the Tilkayat was no more than a
Custodian, manager and Trustee properly so called, there can be no doubt that he is not entitled to rely either on Art. 19(1)(f)
or on Art. 31(2). Therefore, on this construction of clause 1 of the Firman, the short answer to the pleas raised by the Tilkayat
under Arts. 19(1)(f) and 31(2) is that the rights such as he possesses under the said clause cannot attract Art. 19(1)(f) or Art.
31(2)."
It was also submitted that the significance of that case is that the Indian written Constitution spells out the right to property
as a fundamental right. He citedM P Jain, the author of the treatise, Indian Constitutional Law, 4th Edn,at p.664 which postulates that:
"A trustee administering trust property for the benefit of a beneficiary has no right to property, but the beneficiary has such
a right and he could therefore invoke Art. 19(1)(f). Interference by the government with the bare right of management of an
institution did not infringe property rights under Art. 19(1)(f). Accordingly, a law dissolving the existing board of management
of a registered society, and appointing another board instead, did not infringe Art. 19(1)(f), for the board had no interest in the
society's property."
It is to be noted that Article 19(1)(f) of the Indian Constitution, which was later amended in 1978, was worded in similar terms
to s.28 of the Malawi Constitution. Similarly, Article 31(2) of the Indian Constitution, is worded in identical terms as s.44(4)
of the Malawi Constitution.
It is clear from both the Tilkayat case and the passage cited from M P Jain that a trustee administering trust property has no property rights of his own in the trust property. With respect, we think
that these statements represent a correct exposition of the law on this aspect. Our opinion is further buttressed by the following
passage from Gardener's An Introduction to the Law of Trusts, 1990 Edn, at p.9, where the author concludes that:
"In the end, then, we arrive at an idea of a trust as a situation in which property is vested in a trustee who is under an obligation
to handle it in some particular way, with the riders that this obligation is equitable and that the trustee has no interest of his
own in the property." (Emphasis supplied).
Another point raised before us by the respondents was that the Press Trust (Reconstruction) Act deprived the original trustees of
the right to manage the Press Trust. The respondents cited the case of St Kitts and Nevis, AG v. Lawrence(supra) where Peterkin CJ delivered the judgment of the Court and observed, inter alia, as follows at p.929:
"This appeal is primarily concerned with two aspects of the matter before the Court. They have been described by learned
counsel for the appellant as two hurdles to be overcome by the respondent Lawrence. The first is related to section 16 of the Constitution and deals with the question of locus standi. The second is related to section 6 and deals with the question of "property" in the light of that section.
I propose to deal with these two aspects in reverse order as in my opinion it is first necessary to find whether Lawrence can allege an infringement in relation to him. In other words, whether his application is well-founded in relation to himself.
This he must first show.
First of all, we know that he was a director and a shareholder. Further to this we know that he was not just a paid employee
of the Bank, but that he drew a percentage of the profits annually. At one stage this was as high as 50%. We know that
this was subsequently varied, but it is not my understanding that it is being alleged that he ever became a mere paid employee of
the Bank, and it is reasonable to infer that his original status continued, perhaps at something less than 50%.
We have been urged by learned counsel for the appellant to follow the decision in the case of Chiranjit Lal Chowdhuri v Union of
India, AIR 1951 SC 41. While these Indian cases may not be binding, certainly they may be regarded as being persuasive.
In that case, which was the earliest Supreme Court case on the question of "property", the right of voting enjoyed by the
shareholders of a company, or their right to select the directors, or their right to pass resolutions, or institute winding up proceedings,
were held as not property. The facts show that owing to mismanagement, Sholapur Mills had closed down.
It was one of
the largest cotton textile mills employing a large labour force. Parliament passed the Sholapur Spinning and Weaving Co. (Emergency
Provisions) Act empowering the Indian Government to take over the control and management of the Company and its properties by appointing
their own directors.
This Act was challenged by a shareholder. By a majority, however, the Court upheld the validity of the Act. In commenting
on this decision, the learned author of IndianConstitutional Law (M. P. Jain) records at p.368, "it will appear that the Chiranjit
Lal case be justified only on the exceptional circumstances and the social interest involved therein."
And again at page 408:
"The view expounded above was very restrictive. It strikes at the root of the protection of incorporated rights.
Further, the right of management of the Company, ordinarily vested in the shareholders, was affected by the law in question and so
the right to hold property was affected."
The judgment raises two interesting points. The first is that of locus standi which shall be examined in greater detail later in this judgment. The second point is the movement away from the restrictive
interpretations of the word "property". Be that as it may, the Lawrence case can be distinguished
from the one under consideration, on the grounds that Mr Lawrence was a director and shareholder, whereas
there is no evidence on record that the original Press Trust trustees were shareholders. If what is stated at paragraph 19
of the Hon. Aleke Banda's affidavit is accepted as the correct position (since it was not challenged at all), the ultimate shareholder
of Press Corporation Ltd is, the Press Trust, namely, the body corporate as opposed to and distinct from the individual trustees.
The appellant argued that since Dr Banda executed a grant to the trustees on 16th December 1993, and not in 1982, when the Press
Trust was created, the shares vested in the trust and not the trustees because section 49 of the Companies Act (Cap 46:03) provides
that a transfer of shares is incomplete until the shares are actually
transferred. The
appellant further argued that on these facts, the gift did not take effect in 1982, so that the trustees never had legal title to
the shares.
We observe from the evidence before us that it is not clear whether Dr Ntaba or Mr Chimango were trustees at the time these proceedings
were commenced in the High Court. Again, there is no evidence that Dr Banda made a vesting declaration vesting the shares in
Dr Ntaba and Mr Chimango. In our view, these matters would have been properly and adequately dealt with if the proceedings
in this case had been commenced by writ of summons or at least if the deponents of the affidavits used in this case had been cross-examined.
In that way, questions of fact which were in dispute would have been ironed out.
A further point which emerged in argument was the deprivation of directors allowances. The respondents asserted that by removing
the original board of directors of the Press Corporation Ltd, the directors "were deprived of their right to allowances which
right is property." The answer to this point is that there is no evidence before the Court that any allowances were in
fact payable to the directors.
At pages 52-9 of the High Court judgment, the trial Judge goes on to great lengths to demonstrate how the Press Trust (Reconstruction)
Act allegedly arbitrarily deprived the original trustees of their property rights. Surely, s.28(2) of the Constitution (which
states that no person shall be arbitrarily deprived of property) was not breached, since the purposes and effects of the 1995 Press
Trust (Reconstruction) Act were solely to serve and protect the interests of the people of Malawi in accordance with s.12(i) of the
Constitution which stipulates that all legal and political authority of the State derives from the people of Malawi and shall be
exercised in accordance with this Constitution solely to serve and protect their interests. Besides, to promote the welfare
and development of the people of Malawi, in accordance with the provisions of sections 13 and 14 of the Constitution and lastly to
serve purposes of "public utility" in accordance with the provisions of s.44(4) of the Constitution, is not inconsistent
with what is prescribed for by the 1995 Press Trust (Reconstruction) Act.
To act arbitrarily is to act "without any reasonable cause": see Quinion v. Horne (1906) 1 Ch. 597, at p.605. At one point, the trial Judge held that:
"It is arbitrary to require that the individual will be notified through the legislative process for he may not actually notice
the Parliamentary proceedings."
This statement was not borne out by the facts of this case, because both Dr Ntaba and Mr Chimango
attended the National Assembly proceedings on the material date and later voluntarily staged a walk-out.
Principles of natural justice are secured in the Constitution by s.43, and this is the source of procedural protections. What
is important to note is that s.43 of the Constitution applies only to administrative and not legislative acts and is accordingly
inapplicable in the case at hand.
One other pertinent question which arises from the High Court judgment is, assuming that there was arbitrary deprivation, is the
1995 Press Trust (Reconstruction) Act rendered lawful by the provisions of s.44(2) and (3) of the Constitution? The answer
appears to be negative, since the trial Judge failed to consider whether, even if s.28 of the constitution had been infringed, the
1995 Press Trust (Reconstruction) Act would be rendered valid by s.44(2) and (3) of the Constitution. These provisions justify
a restriction or limitation on property rights where these
are provided by law recognised by human rights standards, and necessary in an open or democratic society. Furthermore, the
restriction or limitation on property must be of general application and not so as to negate the rights altogether. The 1995
Press Trust (Reconstruction) Act
falls squarely into the exception prescribed by s.44(2) and (3) of the Constitution. This section provides that:
"44. (2) Without prejudice to subsection (1), no restrictions or limitations may be placed on the exercise of any
rights and freedoms provided for in this Constitution other than those prescribed by law, which are reasonable, recognized by international
human rights standards and necessary in an open and democratic society.
(3) Laws prescribing restrictions or limitations shall not negate the essential content of the right or freedom
in question, (sic) shall be of general application."
The Government of Malawi has clearly taken the view that the regulation and control of such an important economic giant is necessary
in an open and democratic society, especially since the other constitutional conditions were satisfied. In this regard, R N Sharma in his book entitled Fundamental Rights, Liberty and Social Order, at pp.101-102, states as follows:
"The Supreme Court has laid down the following principles which should be kept in mind by
the judges while deciding the constitutional validity of laws in reference to Article 14 of the Constitution:
(1) that a law may be constitutional even though it relates to a single individual or institution if on account
of some special circumstances or reasons applicable to him only;
(2) that there is always a presumption in favour of the constitutionality of an enactment;
(3) that it must be presumed that the legislature understands and correctly appreciates the needs of its
own people and that its discriminations are based on adequate grounds; and
(4) that while good faith and knowledge of the existing conditions on the part of the legislature are to
be presumed, it cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting
certain individuals or corporations to hostile or discriminating legislation.
The above principles have constantly been followed by the Supreme Court whenever it is called upon to adjudge the constitutionality
of any particular law as discriminatory and violative of Article 14 of the Indian Constitution."
We would adopt the above stated principles as a correct statement of the law according to our Constitution. To illustrate their
relevance to our Constitution, we would give as an example what the Government of Malawi has recently done by exempting girls in
Government secondary schools from paying school fees. On the face of it, this decision would appear to be discriminatory in
terms of section 20(1), in that boys in Government secondary schools are still required to pay school fees. But we do not believe
that such a decision by the Government would be in breach of the section herein.
The concept of equal protection of laws is a positive concept. It postulates for the application of the same law alike and
without discrimination to all persons similarly situated. It denotes equality of treatment in equal circumstances. It
implies that among equals the law should be equal and equally administered, that the like should be treated alike without distinction
of race, religion, wealth, social status or political influence. In our view, the Press Trust is not like any other known trust
in Malawi, because its tentacles spread throughout the whole of the Malawian economy. The Press Trust (Reconstruction) Act is, therefore,
not discriminatory because of its unique character, and further because it did not alter the original nature of the Press Trust.
We now turn to the issue of locus standi. The trial Judge made no reference whatsoever to the issue of the locus standi of Dr Ntaba, Mr Chimango and the Malawi Congress Party to these proceedings. The erstwhile Attorney General, Mr Chizumila,
raised the subject of locus standi in the Court below with regard to Dr Ntaba's affidavit, by arguing that:
"CHIZUMILA: It says: '"I Dr Hetherwick Moses Ntaba, MP of Private Bag 388 Lilongwe Malawi,
make oath and say as follows:-
1. I am the Publicity Secretary of the Malawi Congress Party. A duly registered Political Party with a representation in the National Assembly of Malawi.
2. I am duly authorised to make this affidavit on behalf of the Malawi Congress Party,"'
This affidavit my Lord is made by Honourable Dr Hetherwick Ntaba on behalf of Malawi Congress Party. In short there is no affidavit
of Dr Hetherwick Ntaba as third plaintiff. He was doing this affidavit on behalf of Malawi Congress Party. If my Lord,
if I may be allowed to use an example. If I am the Managing Director of Chizumila Enterprises Limited, which does not exist
but it does exist and then I say I am swearing this on behalf of Chizumila Enterprises Limited. The party to the action is
Chizumila Enterprises Limited. Not Collins Chizumila who is swearing on behalf. So the point I am making is that Dr Hetherwick
Ntaba is not a party to this action. And he cannot be a party to this action because he swore on behalf of Malawi Congress
Party, and he should be struck out and pay the costs of the Defendant. He is not a party at all."
Honourable Chizumila went on to say:
"My Lord, if you are given a case you must state your case as a party. Why you think you serve as a party your rights
have been infringed or whatever and you do that by stating what your rights are and where you have been infringed, he has not.
He has done for Malawi Congress Party. So in so far as his only rights are concerned and so far as the only claims are concerned.
Your Lordship may be able to understand it but the defendant is not able to know what they did wrong against Ntaba, the Honourable
Ntaba. We have read his affidavit we don't see anything in this file relating to him. So we are unable to defend ourselves
in relation to this act. Defend it, we are not able to."
But the trial Judge made no determination on the point in his judgment.
Mr L J Chimango did not swear any affidavit so that we assume that he stands in no better position than Dr H M Ntaba regarding locus standi.
Now, by these proceedings, the respondents purported to assert in this Court that the 1995 Press Trust (Reconstruction) Act is in
substantive
breach of certain specified provisions contained in Chapter IV of the Constitution.
The pertinent sections are 20(1) and 28(2), which relate to equal protection under the law and protection of property, respectively.
In both instances, the asserted breaches of the relevant sections of the Constitution are in respect of impacts upon the alleged
rights of the original trustees of the Press Trust or the Press Trust itself or of Press Holdings Ltd, or on the rights of the directors
of Press Holdings Ltd and
Press Corporation Ltd. There is no evidence that any of the Respondents were trustees of the Press Trust at the commencement
of these proceedings, and in any event, they were not before the Court in this capacity. They were in this Court as Members
of Parliament and representatives of the Malawi Congress Party. The Press Trust itself is not a party. Nor are the respondents
representing Press Holdings Ltd or Press Corporation Ltd, nor is there evidence that they are directors of these companies.
The fact that the Malawi Congress Party had a significant role historically in the creation of the Press Group gives them no "sufficient
interest".
The Constitution expressly provides tests of locus standi so as to identify those persons who can, and who cannot, institute proceedings for breaches of the Constitution. The relevant
sections are ss.15(2), 41(3) and 46(2). Locus standi is a jurisdictional issue. It is a rule of equity that a person cannot maintain a suit or action unless he
has an interest in the subject of it, that is to say, unless he stands in a sufficient close relation to it so as to give him a right
which requires protection or infringement of which he brings the action.
In St Kitts and Nevis, AG v. Lawrence(supra), Peterkin CJ, commented on the subject of locus standi in the following style:
"I now turn to the second aspect, namely, did Lawrence have a locus standi in the constitutionality of the impugned Act. It is submitted not. To make out a case as alleged, it is incumbent upon
the respondent Lawrence to establish not merely that the law complained of affects or invades his fundamental rights guaranteed
by the Constitution, but also that it is beyond the competency of the legislature.
No one but whose rights are directly affected by a law can raise the question of the constitutionality of that law. A corporation
has a legal entity separate from that of its shareholders. Hence, in the case of a corporation, whether the corporation itself
or the shareholders would be entitled to impeach the validity of the statute will depend upon the question whether the rights of
the corporation or of the shareholders have been affected by the impugned statute....But it may happen that while a statute infringes
the company, it also affects the interests of its shareholders; in such a case, the shareholders also can impugn the constitutionality
of the statute: (vide, Cooper v. Union of India, (1970) 1 SCC 248. In the instant matter, as I see it, if Lawrence can allege and show an infringement in relation to him, then he gains locus standi and he becomes entitled thereby to raise the constitutionality of the entire law in relation to the property of the company.
Having concluded that his application was well-founded in relation to himself, the learned trial Judge was quite right, in my opinion,
to consider the law in its general application and to declare as he did on the question of its validity."
Put briefly, the Court held that Lawrence had locus standi in that case, in his capacity as a shareholder. Under s.15(2) of the Malawi Constitution, this would satisfy the "sufficient
interest" test.
The respondents' identity is described by the trial Judge in his judgment at pages 1-2. The 1st respondent is the main opposition
party in Parliament and the 2nd and 3rd respondents are Members of Parliament belonging to the said main opposition party.
As such, the respondents do not have locus standi under ss.15(2), 41(3) and 46(2) of the Constitution to bring these proceedings in respect of the alleged substantive breaches of
the Constitution relying only upon the alleged impacts on the Press Trust or its original trustees. Dr Ntaba and Mr Chimango
cannot rely on s.15(2) of the Constitution, as they have no sufficient or any interest in the alleged violation of human rights of
which complaint is made. Nor can the Respondents place reliance on s.46(2) of the Constitution. Although
it is true that this provision refers to a
person complaining that "a" fundamental right or freedom has been infringed, this cannot mean that
any person can complain about an infringement affecting other persons, otherwise it would conflict with the provisions
of s.15(2) of the Constitution.
In Valley Forge College v. Americans United, a Supreme Court decision, Rehnquist J delivered the majority decision which reads, in part, as follows:
"A recent line of decisions, however, has resolved that ambiguity, at least to the following extent: at an irreducible
minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual
or threatened injury as a result of the putatively illegal conduct of the defendant," Gladstone, Realtors v. Village of Bellwood,
441 U. S. 91, 99 (1979), and that the injury "fairly can be traced to the challenged action" and "is likely to be
redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26, 38, 41 (1976)."
The learned Judge went on to say:
"The requirement of "actual injury redressable by the court," Simon, supra, at 39, serves several of the "implicit policies embodied in Article III," Flast, supra, at 96. It tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere
of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.
The "standing" requirement serves other purposes. Because it assures an actual factual setting in which the litigant
asserts a claim of injury in fact, a court may decide the case with some confidence that its decision will not pave the way for lawsuits
which
have some, but not all, of the facts of the case actually decided by the court."
In UDF v. Attorney General, Civil Cause No. 11 of 1994, at pp.4-6, the nature of the
remedy of declaration and the importanceof locus standi was exhaustively dealt with. In that case, Chatsika J, had this to say on the question of locus standi:
"It is further to be observed that the court will only enforce the performance of a statutory duty on the application of a person
who can show that he himself has a legal right to insist on the performance of that duty. For the plaintiff to succeed
in the instant case, it must be proved that the United Democratic Front, itself, has a legal right or a substantial interest to insist
that a commission of inquiry be appointed to inquire into the deaths of the four persons who are mentioned in this action."
Although we find that the Respondents had no locus standi regarding the trust property or the property of the affected companies, that is to say, Press Holdings Ltd and Press Corporation
Ltd, they nevertheless had locus standi in so far as the proceedings involving the quorum and notice in the National Assembly are concerned. The respondents had a
"sufficient interest" in that regard, because as Members of the National Assembly, they took an oath of allegiance to preserve,
protect and defend the Constitution.
An interesting development in the course of argument was the introduction of the "doctrine of necessity" by counsel for
the appellant. There are five major cases in which the doctrine of necessity has been invoked. The first such case is the American
case - Horn v. Lockhart, 84 U.S. 570 (1873). The second is a Pakistani case known as Special Reference No. 1 of 1955,
P.L.R. 1956 W.P. 598. The third is the Cypriot case, Attorney General of the Republic v. Mustafa Ibrahim (1964),
Cyprus Law Reports 195; next is Madzimbamuto v. Lardner-Burke (1969) 1 A.C. 645 (PC); and last, but of major significance,
is the Re Manitoba Language Rights, (1985) 1 S.C.R., a Canadian case.
We attach major attention to the Re Manitoba case because it analyses all previous cases on the subject and it lays down the principle
that the doctrine of necessity is not confined to governments affected by insurgency operations, as Mr Msisha argued. But even
in peacetime, the doctrine can be applied.
In a nutshell, these are the facts of the Manitoba case. the Court found in 1985 that all of the unilingual Acts of the Legislature of Manitoba
were invalid and of no force or effect because s.23 of the Manitoba Act, 1870 entrenched a mandatory requirement to enact,
print and publish all Acts of the Legislature in both French and English languages and, thus, established a constitutional duty on
the Manitoba Legislature with respect to the manner and form of enacting legislation. The Court held that although the unilingual
Acts were unconstitutional, it would at the request of the Attorney General of Canada, made within one hundred and twenty days
of the date of the judgment, establish the minimum period necessary for translation, re-enactment, printing and publishing of unilingual
Acts of the Legislature of Manitoba which would be currently in force were it not for their constitutional defect. The Court
would adopt similar treatment for the unilingual repealed and spent Acts of the Legislature of Manitoba between 1870 and 1985.
In so doing, the Court would validate all legislation (enacted between 1870 and 1985) which was otherwise unconstitutional by giving
the Manitoba Legislature a reasonable period of time within which to remedy the constitutional defects.
We now quote from the text of the judgment in the Re Manitobacase from page 758 to page 767:
"Analogous support for the measures proposed can be found in cases which have arisen under the doctrine of state necessity.
Necessity in the context of governmental action provides a justification for otherwise illegal conduct of a government during a public
emergency. In order to ensure rule of law, the Courts will recognize as valid the constitutionally invalid Acts of the Legislature.
According to Professor Stavsky, "The Doctrine of State Necessity in Pakistan" (1983), 16 Cornell Int. L.J. 341, at p. 344: "If narrowly and carefully applied, the doctrine constitutes an affirmation
of the rule of law." (Emphasis added).
The courts have applied the doctrine of necessity in a variety of circumstances. A number of cases have involved challenges
to the laws of an illegal and insurrectionary government. In the aftermath of the American Civil War, the question arose as
to the validity of laws passed by the Confederate States. The courts in addressing this question were primarily concerned with
ensuring that the rule of law be upheld. The principle which emerges from these cases can be summarized as follows: During
a period of insurrection, when territory is under the control of dominance of an
unlawful, hostile government and it is therefore impossible for the lawful authorities to legislate for the peace and good order
of the area, the laws passed by the usurping government which are necessary to the maintenance of organized society and which are
not in themselves unconstitutional will be given force and effect: see Texas v. White, 74 U.S. 700 (1868);
Horn v. Lockhart, 84 U.S. 570 (1873); United States v. Insurance Companies, 89 U.S. 99 (1874); Baldy v. Hunter, 171 U.S.
388 (1898)....
The doctrine of necessity was also applied with respect to an insurrectionary government in Madzimbamuto
v. Lardner-Burke, (1969) 1 A.C. 645 (P.C.). This case dealt with the efficacy of official acts of the Smith regime shortly after Southern Rhodesia's unilateral declaration of independence from Britain in 1965. Lord Reid, writing for the majority, canvassed the American authorities discussed above, but found them distinguishable
on the ground that in this case, Parliament had specifically provided that it would have legislative authority for the territory
of Southern Rhodesia (in the Southern Rhodesia Act and Order in Council in 1965), and it thereby followed that there was no "legal
vacuum" necessitating recognition by the courts of the laws purportedly enacted by the insurrectionary Smith government.
Lord Pearce dissented from the majority view. He saw no merit in the
distinction drawn by the majority, noting that while the lawful government had formally asserted its authority,
it was in no position, as a practical matter, to actually govern. In his view, the American cases presented "a helpful
analogy" and, in reliance on them, he formulated the "state necessity doctrine" as follows, at p. 732:
I accept the existence of the principle that acts done by those actually in control without lawful validity may be recognized as
valid or acted upon by the courts, with certain limitations namely (a) so far as they are directed to and reasonably required for
ordinary orderly running of the State, and (b) so far as they do not impair the rights of citizens under the lawful (1961) Constitution,
and (c) so far as they are not intended to and do not in fact directly help the
usurpation and do not run contrary to the policy of the lawful Sovereign. This last, i.e. (c), is tantamount to a test of public
policy.
Again, it is clear that the reasons for applying the state necessity doctrine pertain to a concern with the rule of law. At
page 740, Lord Pearce says:
If one disregards all illegal provisions for the needs of the country, there is a vacuum and chaos. (Emphasis added).
In my view, the principle of necessity or implied mandate applies to the present circumstances in Rhodesia.
It should be noted that neither the American cases on necessity, nor the comments of Lord Pearce in Madzimbamuto can be applied directly to the present case. All of these cases are concerned with insurrectionary governments,
the present case is not. But even more fundamental than this distinction is the fact that all of these cases require that the
laws saved by the application of the doctrine not impair the rights of the citizens guaranteed by the Constitution. In the
present case, the laws in question do impair these rights. Nonetheless, the necessity cases on insurrectionary governments
illustrate the more general proposition that temporary effect can be given to invalid laws where this is necessary to preserve the
rule of law.
The doctrine of state necessity has also been used to uphold laws enacted by a lawful government in contravention of express constitutional
provisions under extraordinary circumstances which render it impossible for the government to comply with the Constitution.
In Attorney General of the Republic v. Mustafa Ibrahim, (1964) Cyprus Law Reports 195, the Court of Appeal of Cyprus invoked
the doctrine of state necessity to hold valid a law passed in direct contravention of the express provisions of the Cypriot
Constitution.
Cyprus is a dyarchy, power being shared between Greek and Turkish Cypriots. The 1960 Cypriot Constitution contained several entrenched
provisions guaranteeing the equality of status of the two
Cypriot communities. In particular, the Constitution established a High Court of Justice and a Supreme Constitutional Court, each staffed by judges from both communities and governed by a neutral (non-Cypriot) President. A Turkish Cypriot charged
with an offence against a Greek Cypriot was given the right to be tried by such a "mixed" court. In addition,
all laws were required to be enacted in both the Turkish and the Greek languages. These constitutional provisions, termed "basic
articles", could not be amended.
In 1963, Turkish insurgents gained control over those parts of Cyprus inhabited by the Turkish community. This effectively prevented Turkish Cypriots from participating in the government of the
country, including the Parliament of Cyprus and all courts located outside the Turkish areas. As a
consequence, it became impossible to constitute "mixed" courts as required by the Constitution, to assemble the Supreme Constitutional Court, or to enact laws in Turkish, there being virtually no qualified translators available during the insurgency.
To deal with the emergency, the Parliament of Cyprus passed a temporary law abolishing the requirement of mixed courts for the duration
of the insurrection and conferring on a new Court of Appeal, composed solely of Greek Cypriot Judges, the jurisdiction then vested
by the Constitution in the Supreme Constitutional Court. This temporary measure, enacted in Greek only, was challenged as unconstitutional.
render it impossible for the government to comply with the Constitution. In Attorney General of the Republic v. Mustafa Ibrahim,
(1964) Cyprus Law Reports 195, the Court of Appeal of Cyprus invoked the doctrine of state necessity to hold
valid a law passed in direct contravention of the express provisions of the Cypriot Constitution.
Cyprus is a dyarchy, power being shared between Greek and Turkish Cypriots. The 1960 Cypriot Constitution contained several entrenched
provisions guaranteeing the equality of status of the two
Cypriot communities. In particular, the Constitution established a High Court of Justice and a Supreme Constitutional Court, each staffed by judges from both communities and governed by a neutral (non-Cypriot) President. A Turkish Cypriot charged
with an offence against a Greek Cypriot was given the right to be tried by such a "mixed" court. In addition,
all laws were required to be enacted in both the Turkish and the Greek languages. These constitutional provisions, termed "basic
articles", could not be amended.
In 1963, Turkish insurgents gained control over those parts of Cyprus inhabited by the Turkish community. This effectively prevented Turkish Cypriots from participating in the government of the
country, including the Parliament of Cyprus and all courts located outside the Turkish areas. As a
consequence, it became impossible to constitute "mixed" courts as required by the Constitution, to assemble the Supreme Constitutional Court, or to enact laws in Turkish, there being virtually no qualified translators available during the insurgency.
To deal with the emergency, the Parliament of Cyprus passed a temporary law abolishing the requirement of mixed courts for the duration
of the insurrection and conferring on a new Court of Appeal, composed solely of Greek Cypriot Judges, the jurisdiction then vested
by the Constitution in the Supreme Constitutional Court. This temporary measure, enacted in Greek only, was challenged as unconstitutional.
The Court of Appeal upheld the law on grounds of necessity. Josephides J. at p. 265 set forth four prerequisites which he said must be satisfied before the doctrine of state necessity could apply to validate
such an unconstitutional law:
(a) an imperative and inevitable necessity or exceptional circumstances;
(b) no other remedy to apply;
(c) the measure taken must be proportionate to the necessity; and
(d) it must be of a temporary character limited to the duration of the exceptional circumstances.
Josephides J added:
A law thus enacted is subject to the control of this court to decide whether the aforesaid prerequisites are satisfied,
i.e. whether there exists such a necessity and whether the measures taken were necessary to meet it.
All four conditions being satisfied, Josephides J concluded (at p. 268) that the impugned law, while unconstitutional, was nevertheless effectual "for the duration of the necessity
and no more...."
A third situation in which the doctrine of necessity has been applied is where the executive has taken emergency action to fill a
legislative void created by a court ruling. In the Pakistani case of Special Reference No. 1 of 1955, P.L.R. 1956 W.P. 598,
there was a challenge to emergency action taken by the Governor General of Pakistan
in the face of an apparent legal vacuum. The Indian Independence Act, 1947, was the original Constitution for the
newly created dominions of India and Pakistan. As a step towards complete independence, the Act provided for a Constituent Assembly in each country, with power to amend
the Act and enact new constitutional laws. Royal assent was required for the passage of all such constitutional legislation.
The Constituent Assembly of Pakistan set out immediately to forge its own Constitution. From 1947 to 1954 it enacted 44 constitutional
amendments. The members of the Assembly, however, felt that it was important that the new Constitution have roots as independent
of imperial authority as possible. They therefore deliberately failed to obtain royal assent to any of the amendments.
Indeed, in 1948, the Assembly passed an amendment purportedly abolishing the requirement of royal assent.
This amendment, like the other 43, was itself passed without royal assent.
In Federation of Pakistan v. Tamizuddin Khan, P.L.R. 1956 w.p. 306, the Federal Court of Pakistan held the constitutional amendments
void. It followed that a great many statutes and regulations enacted pursuant to the invalid amendments were
themselves nullities. The situation that obtained was in many respect
