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with the examination of jurisdiction first, and then deal with admissibility
later, as the majority judgment does. It, however, needs to be mentioned
that there has never been unanimity in this Court that that should
necessarily always be the case; there has always been a view that it
would not necessarily be wrong, in a given case, to examine admissibility
first.
2.
The above debate cannot be resolved in favour of starting with
jurisdiction, by, as the majority judgment seeks to do, importing into Rule
39(1) a word which is not in there, namely, the word "first". Apparently,
the importation is made to strengthen the case for starting with
jurisdiction first as opposed to admissibility. The relevant paragraph of
the majority judgment, being paragraph 30, reads: "Rule 39(1) of the
Rules . . . provides that the Court must first conduct preliminary
examination of its jurisdiction" (own underlining). Yet, with respect, the
Rule does not say that; it reads: "The Court shall conduct preliminary
examination of its jurisdiction and the admissibility of the application ... ".
The word "first" appears nowhere in the Rule, let alone specifically
prescribing that one should start with jurisdiction first. Whatever reason
may be behind importing that word into the Rule, it remains factually
incorrect to say, as the majority judgment does, that the Rule contains
that particular word, when it does not; accordingly, we disagree with that
statement. It may well be that starting with jurisdiction may be justified on
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