Malawi’s legal community is braced for a major court battle between the Malawi Law Society (MLS) – it bills itself as ‘the voice of the legal profession in Malawi’ – and two other professional legal bodies, the Corporate Lawyers Association (CLA) and the Commercial Bar Association (CBA). This follows an attempt by the MLS to have the court prevent MLS members from joining the ‘objects and business’ of the CLA and the CBA. The proposed ban, which would stop all Malawi’s registered lawyers from joining the two specialist legal bodies, must now be fully ventilated in court as a constitutional issue since it could affect the constitutionally guaranteed right to freedom of association.
The Malawi Law Society has tried to persuade the high court to declare that members of the society are not legally allowed to participate in the ‘objects and business’ of the CLA and the CBA.
It did so via an application for summary relief; in other words, it wanted the court to grant declarations based on sworn statements, and without holding a full trial on the matter. But the judge who heard the application, Michael Tembo, said the CLA and the CBA had an arguable case in opposition and that the matter should be fully ventilated, rather than being disposed of via summary relief.
Under the Legal Education and Legal Practitioners Act, every legal practitioner licensed to practice law in Malawi must belong to the MLS. Membership of the CLA and the CBA is voluntary. The CLA consists of members of the MLS who are employed by various corporations and financial institutions – effectively, in-house lawyers. The CBA involves members of the MLS with a post-graduate qualification in commercial law or who have 15 years of experience in legal practice.
The MLS isn’t happy with the situation, however. It has a strategic plan in terms of which it wants ‘100 % member involvement in its activities’. In March 2021 it decided to re-organise the society to ensure full member involvement. That aim, it says, is compromised by the CLA and CBA because some MLS members also belong to these organisations.
It claims this is a particular problem because the MLS has set up ‘some structures’ that ‘overlap’ with the areas of focus of the CLA and CBA. In the view of the MLS, there are specialist lawyers who would have ‘greatly contributed’ to the MLS focus but who now may not be available ‘as they would be drawn away to focus on activities’ of the CLA or CBA.
Because of the conflict or potential for conflict between the activities of the MLS and the other two bodies, it is necessary that MLS members’ freedom to associate must be restricted, says the society.
In his decision on the application, Judge Tembo said the MLS was entitled to bring the application so that the court ‘can declare the position of the law’ on the issue of the relationship between the disputing bodies. Further, the MLS had a right to protect its interests as a statutory legal entity, said the judge.
As part of their argument against summary relief, the two defendant bodies said that the MLS was acting in a discriminatory way against them. This is because the MLS has never taken any action to stop its members from joining the Women Lawyers’ Association, a body that has existed for longer than either of the two defendant bodies, and to which some members of the MLS also belong.
Judge Tembo said that if he were to make a summary declaration, the MLS would have had to convince the court that the two defendants ‘do not have any real prospect of defending the claim.’ At the same time, the MLS would also have to make out a clear case, warranting a summary declaration.
In this application, however, the court agreed with the two defendants that a summary declaration would be unwarranted ‘because the defendants have shown that there is a defence that is worth investigation at trial. There is a real prospect of the defendants defending this matter.’
‘The defence essentially centres around whether the [MLS] can curtail the freedom of association of its members [who are also members of the defendants]. That is a matter that ought to be thoroughly investigated. That has to also involve investigating whether there indeed exists a conflict or potential conflict’ over MLS members’ involvement within the MLS structures and their involvement under the CLA and the CBA.’
He agreed with the defendants that the right to freedom of association held by members of the MLS is recognised under the constitution as well as being an internationally recognised right. ‘According to the United Nations’ basic principles on the role of lawyers,' lawyers had ‘freedom of association and freedom to form independent professional associations to represent their interests and to promote their continuing education, among others.’
An online search showed that while many jurisdictions had mandatory law societies such as the MLS, there were also ‘other bar associations’ formed by lawyers that were the equivalent of the CLA and the CBA, aimed at ‘promoting specialties within the practice of the law.’
‘Consequently, limiting the association of lawyers under any association is not something that should be dealt with summarily except in the clearest of cases, which is not the case in the present matter.’
Judge Tembo also referred to the fact that the MLS was only trying to curtail the rights of its members in relation to the CLA and the CBA. It was not trying to do the same in relation to the Women Lawyers’ Association. Nor was any action being taken about MLS members who were involved in regional and international bar associations. ‘This is a scenario in which the issue of discrimination by the [MLS] as raised by the defendants in their defence calls for examination at a full trial.’
There were other matters that would need ‘close scrutiny at trial’, for example whether there is a breach of the Competition and Fair Trading Act because the defendants might eventually ‘create monopolies due to specialty of their membership’, something denied by the defendants, and whether restricted legal work can be carried out by in-house lawyers who are members of the CLA and are employed by corporations. ‘These are also matters that require close scrutiny at trial and which cannot be determined summarily on sworn statements.’
Because of the view he took of the dispute – that it involved the application of the constitution, particularly since it was proposed to curtail the rights of MLS members to associate under the CLA and the CBA – he said he would refer the matter to the chief justice to certify the case as one that should be heard by a panel of no fewer than three judges.