LEGAL PRINCIPLE: CONSTITUTIONAL LAW – Interpretation of Constitution – Reference to Court of Appeal – Meaning of “Shall Give Its Decision”
PRINCIPLE STATEMENT
It is wrong to construe the expression, 'shall give its decision upon the question' under section 295(2) to mean shall answer the question. What the express words of section 295(2) requires the Court to do is to give its decision on the question. It did not require the Court to which a question is referred to answer the question.
RATIO DECIDENDI (SOURCE)
"It is wrong to construe the expression, 'shall give its decision upon the question' under section 295(2) to mean shall answer the question. What the express words of section 295(2) requires the Court to do is to give its decision on the question. It did not require the Court to which a question is referred to answer the question."
EXPLANATION / SCOPE
Under Section 295(2), the Court of Appeal must “give its decision” on a referred constitutional question—not necessarily “answer” it. The distinction is subtle but significant: giving a decision may include declining to answer if the question is inappropriate or not properly raised. The provision does not compel the Court of Appeal to answer every referred question. The Court of Appeal has discretion to determine how to give its decision. The principle prevents the High Court from forcing the Court of Appeal to answer questions that are not genuine or necessary. The Court of Appeal may rephrase the question, decline to answer, or give a decision that the question does not arise. The reference procedure is not a mechanism for advisory opinions. The Court of Appeal’s decision is binding on the referring court.
