Page:NCGLE v Minister of Justice.djvu/74



Rh invalid in one case and the statutory provision in another, but both in the same High Court. This Court would then have been faced with the additional problem, when presented on confirmation with only the statutory provision, that the common-law offence had been dealt with in another case.

An equally undesirable result could follow if there were conflicting decisions in different High Courts regarding the constitutional validity of the same common-law offence, or the extent of its invalidity, there being no express constitutional mechanism whereby such conflict could, as a matter of course, be finally determined for the entire country.

For these reasons, it seems to me that parties to proceedings in which declarations of unconstitutionality are made should, when considering whether an appeal is appropriate, pay particular attention to the terms of the order made as well as to questions of unconstitutionality. There may be circumstances where an appeal against the terms of the order is appropriate even where there is no dispute concerning the conclusion of unconstitutionality itself.

Rh