LEGISLATION AS A SOURCES OF NATIONAL/MUNICIPAL LAW

1 Law can be classified by the source from which it comes from. The following are the key sources of law : Statutory law ; Common law ;
Equity ; customary law ; international law

2. STATUTE LAW Legislation)’

(a) In both Malawi and England statute law or legislation is a major source of law , transcending both common law and equity in its

importance. The words Statute law or legislation are used interchangeably but they refer to the same thing which is law that is

written and passed by parliament . The role of legislation is unquestioned . Common law and equity are nowadays concerned

essentially with the application and development of existing principles, and whilst this does involve the making of law, courts

generally take the view that the development of entirely new principles should be left to parliament through the enactment of

legislation.. In Malawi the most important piece of legislation and is the Supreme Law of the country is the Constitution. See :

Saulos Klaus Chilima & Lazarus McCarthy Chakwera v Peter Mutharika and MEC Constitutional Reference No 1 2019

(b) Functions of legislation : The broad function of all legislation is to ‘create’ , ‘alter’, or ‘revoke law’ to give effect to the intention of the
legislative body. Legislation can also change or abolish existing common law principles , and amend or repeal earlier statute Subordinate
legislation fulfils various specific functions, scarcely capable of classification. Legislation may take one of these three forms : Acts and
Parliament ; delegated legislation
1 ‘STATUTE LAW Legislation)’

(a) In both Malawi and England statute law or legislation is a major source of law , transcending both
common law and equity in its importance. The words Statute law or legislation are used
interchangeably but they refer to the same thing which is law that is written and passed by
parliament . The role of legislation is unquestioned . Common law and equity are nowadays
concerned essentially with the application and development of existing principles, and whilst this
does involve the making of law, courts generally take the view that the development of entirely new
principles should be left to parliament through the enactment of legislation.. In Malawi the most
important piece of legislation and is the Supreme Law of the country is the Constitution . See : Saulos
Klaus Chilima & Lazarus McCarthy Chakwera v Peter Mutharika and MEC Constitutional Reference No 1
2019 ; Malone v Metropolitan Police Commissioner (No2) [1979]2 All ER ; McLoughlin v O’Brien [1982]
2 All ER 298. s.

(b) Functions of legislation : The broad function of all legislation is to ‘create’ , ‘alter’, or ‘revoke law’ to
give effect to the intention of the legislative body. Legislation can also change or abolish existing
common law principles , and amend or repeal earlier statute Subordinate
legislation fulfils various specific functions, scarcely capable of classification. Legislation
may take one of these three forms : Acts and Parliament ; delegated
legislation
(c) Acts of Parliament :
I. Most Acts of parliament are what are known as ‘Public General Act’ . Most of
these Acts come from the government. Some may be based on
specific manifesto pledges but many may originate within government
departments. They are drafted by the Parliamentary Drafting section
in the Ministry of Justice. Occasionally a public General Act may begin life as a Private
Members Bill. As the name indicates , such bills are introduced by
individual MPs rather than by ministers acting on behalf of government.
Examples of Acts are : The Constitution ; the Employment Act; the Bills of Exchange Act;
the Sale of Goods Act ; the Penal Code ; etc

II. An Act that is in draft form it is known as a ‘bill’. Before a bill is drafted, the government
may outline its intentions in a consultation paper , inviting feed back from interested
parties on a range of options that is being considered. This consultation period will
usually be followed by a white paper setting out the governments revised proposals in
detail. The draft bill will then be published in the government gazette providing an early
opportunity for scrutiny and revision by members of parliament.
III. After publication, the bill will be introduced into Parliament by the line Minister. The Title of the
bill will be read out by the Minister in what is known as First Reading’ , and a date will be set for
the Second Reading which is the first opportunity for a full debate on the Bills merits. At the end of
this debate , the Bill and any amendments that have been proposed will be put to the vote.

(d) Rights ; Duties under Statues:

I. Some Acts of parliament or statutes impose duties on citizens , and will detail the punishment
or penal sanction for any violation of such a duty. The most common example of such an Act
is the Penal Code which details various acts or conduct which are forbidden and the
penalty/sanction for violation. For instance under the Penal Code rape, murder, theft etc are
forbidden. Such acts are referred to as ‘crimes’ and prosecution of such crimes is the Director
of Public Prosecution (DPP) who is mandated by the Constitution . A crime is considered to be
a wrong against the people or state. i.e., such violation are deemed to be a wrongs against
the country’s citizens
II. Where an Act imposes duties on society in order to protect some persons , it does not
necessarily mean that when such a person has been wronged he can sue for damages. There is
need for an act to specifically indicate that the legislation creates such a remedy. See : R v
Deputy Governor of Parkhurst Prison Ex Parte Hague [1991] 3 All ER 733 (the House of Lords
held that the Prison Rules 1964) conferred no right to sue for damages upon a prisoner upon a
prisoner who had been restrained in a manner not permitted by those rules. The prisoners
remedies were to complain to the governor or board of visitors) ;
 See also Capital and Counties Plc v Hampshire Council and others. [ 1997]2 All ER 865 (duty to
ensure a water supply under Services Act 1947) ; Capital and Counties Plc v Hamphshire County
Council and others [1997]2 All ER 865

III. Some Acts of parliament create rights for citizens at large or for some sections of the society. The
most notable piece of legislation is the Constitution which has enshrined employment
rights in sections 21 and 31. Thus under the Constitution an employee has the right fair and safe
labour practices and to fair remuneration. Other example of Acts which create rights
are : the Employment Act; Labour Relations Act; etc. Where an Act
creates an Act the protected person has the right to sue for damages. E.g., the Employment
Act .

(e) Delegated legislation

I. ‘Delegated legislation’ is the term used to describe the vast body of rules , orders, regulations ,
and bye laws, created by subordinate bodies under powers delegated through Acts of
parliament. Parliament has neither the time nor the expertise to enact all the legislation
needed in a modern complex society , and the use of delegated legislation enables
legal rules to be made and altered quickly without taking up valuable parliamentary time. Local
Authority bye laws are one form of delegation legislation. Thus under the Local
 II. Delegated legislation is valid only if it is within the legislative powers conferred by Parliament
(intra vires). Thus delegated legislation can be declared invalid if it is ultra vires (out side power). In R v
Secretary of State for the Home Department , ex parte Javed [2002]QB 129 the Court of Appeal held that
delegated legislation could be judicially reviewed could be reviewed on the grounds of illegality,
procedural impropriety , and unreasonableness.

(f) Operation of a Statute

I. An Act of parliament is operative through out Malawi but not elsewhere. An act comes into operation
once the bill has been assented by the President and gazetted unless the Act specified some other date
itself. Increasingly the Act may provide that it is to come into force on a day to be appointed. There are
instances where the Act does not come into force even after the president has assented to the Bill. A good
example is the Access to Information Act which was recently gazetted but has not come into force and yet
the Act was assented to some time back. The Act does provide that ‘it shall come into force on a day to
be appointed. Sometimes the failure to bring a statutory provision into force may give rise to problems as
was vividly demonstrated in R v Secretary of State for Home Department ex parte Fire Brigades Union
[1995]2 All ER 244 where the Criminal Justice Act 1988 of UK had not been brought into force in 1988. In
1994 the failure to bring the Act into force was challenged as being unlawful. The House of Lords agreed
with the petitioners and held that the Home secretary acted unlawfully by not keeping the
operationalization of the Act under review.ie as to when the Act was to be brought into force.
II. An Act of parliament acts retrospectively and not retroactively. However, there is an argument that if
parliament so wishes it could enact a law which acts retroactively although this is rare. This issue was
discussed in Secretary of State for Social Security v Tunnicliffe [1991]2 All ER 712 where Staughton LJ stated
that : “ The true principle is that Parliament is presumed not to have intended to alter the law applicable to
past events and transactions in a manner which is unfair to those concerned in them, unless a contrary
intention appears. It is not simply a question of classifying an enactment as retrospective or non
retrospective. Rather it may well be a matter of degree – the greater the unfairness, the more it is expected
that parliament will make it clear if that is intended.” This statement was approved by the House of Lords
in L’Office Cherifien des Phosphates v Yamashita Co Ltd [1994]1 All ER 20 ; Wilson v First County Trust ( No
2) [2003 4 All ER 97

III. The presumption that an Act acts retrospectively is strong where a statute creates a criminal penalty or
would operate to deprive a person of a vested right in property. See : Yew Bon Tew v Kenderaan Bas Mara
[1982]3 All ER 833. In R v Fisher [1969]1 All ER 100 the rule against retrospective operation operated against
the accused , as he was convicted of an offence which had been abolished at some point between the
commission of the offence and the date of his trial.

IV. When a statute ceases to be operative. : No statute becomes obsolete by the passing of time.It only ceases
to be operative when it has been repealed. Nevertheless there are many statutes that are more honoured in
breach than in observance. In Malawi there are a lot of old statutes which occasionaly are referred to. For
instance the Protected Flag , Emblems and Names Act,1967 which protects the name of a president from
being ridiculed. In England there are statutes dating back to 1677 such as the Statute of Frauds Ac,1677 , the