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Report No. 95

6.5. Criterion to be adopted for determining when constitutional issue involved.-

Of course, the creation of two divisions in the abstract does not end the matter. For practical implementation of the proposed scheme, it will be necessary to deal with at least two concrete matters, namely, (i) when can a constitutional issue be said to be "involved", and (ii) what will be the machinery for allocating cases as between the two divisions. As to the first matter, which relates to the criterion to be adopted, we should make it clear that a case should be regarded as "involving" a constitutional issue only when the decision of that issue is absolutely necessary for the disposal of the controversy. The mere fact that a party has raised a constitutional issue is not enough. Although it may not always be possible to determine, at the outset (at the time of allocation of the case), whether the case "involves" a constitutional issue in the above sense, it may still be useful to bear this aspect in mind.

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