CONSTITUTIONAL LAW — Supreme Court — Constitution of Court — Interpretation of Section 234 of 1999 Constitution
Principle Statement
The word "shall" in the proviso to Section 234 of the 1999 Constitution, requiring the Supreme Court to sit in a panel of seven justices for certain constitutional appeals, is properly construed as "may" — conveying a directory or permissive connotation with room for judicial discretion.
Ratio Decidendi (Source)
Per Tabai, JSC, in Associated Discount House Ltd v. Amalgamated Trustees Ltd No 2 (2007) NLC-123-289-2002(SC) at p. 18; Paras A–C.
"I prefer a construction of the word 'Shall' in the proviso to Section 234 of the Constitution to be 'May', conveying a directory or permissive connotation and having room for some discretion as to when to constitute a panel of seven justices in appeals with respect to questions under Section 233(2)(b) and (c) of the Constitution."
Explanation / Scope
The interpretation of “shall” depends on the context. Here, a mandatory construction would be impracticable and would frustrate the court’s operations. The court retains discretion to determine which cases truly involve substantial constitutional questions warranting a seven-justice panel. The provision is designed to ensure that only the most significant constitutional issues are decided by a larger bench, not to impose an inflexible requirement. This discretionary approach aligns with the court’s role as the final arbiter of constitutional interpretation.
