n Malawi Law Journal - Upholding the sanctity of rights : a principled approach to limitations and derogations under the Malawian Constitution
|Article Title||Upholding the sanctity of rights : a principled approach to limitations and derogations under the Malawian Constitution|
|© Publisher:||University of Cape Town|
|Journal||Malawi Law Journal|
|Publication Date||Jan 2007|
|Pages||3 - 32|
The 1994 Constitution of Malawi marks a break with its predecessors by placing the Bill of Rights at its fore. While the Bill of Rights is one of the most entrenched chapters in the Constitution, I argue that the view held by Malawian courts that some rights in the Constitution are not capable of being limited is misconceived and not supported by a proper construction of the Constitution. Instead, I demonstrate that all rights under the Malawian Constitution are limitable in terms of sections 44(2) and (3) of the Constitution while only a select few are derogable during public emergencies in terms of section 45 of the Constitution. Nevertheless, I argue for a principled approach to interpreting limitations to rights in order to protect the fundamental nature of the Bill of Rights. This approach demands that limitations to rights must be proved strictly and interpreted restrictively. I also analyse the doctrine of necessity, which the Supreme Court of Appeal of Malawi suggested in the Press Trust Case was a possible limitation to rights, and contend that it is of no relevance to and has no basis in Malawi?s new constitutional order.
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