Stare Decisis is a Latin term that means “let the decision stand” or “to stand by things decided”. It is one of foundational concepts in the Pakistani legal system. Stare Decisis holds that courts and judges should honor “precedent” or the decisions, rulings, and opinions from prior cases. Respect for precedents gives the law consistency and makes interpretations of the law more predictable.
Stare decisis may be simple at its core, but there are nuances and limits in the way it is applied. For example, vertical stare decisis provides that the decisions of higher courts are binding over the decisions of lower courts. This principle is deeply entrenched in our legal system. This is what makes Supreme Court “supreme.” By contrast, horizontal stare decisis holds that prior decisions made by courts at a particular appellate level should provide some precedent for cases heard by courts of the same appellate level. Horizontal stare decisis is generally seen to be less “control” when compared to vertical stare decisis.
The principle of stare decisis is actually a maxim of law that is derived after a series of cases not from a single case. This is stated as stare decisis et non quieta movere which means “to stand by precedents and not to disturb settled points”. This principle leads to the Doctrine of Precedent which signify when a point of law is settled by a judicial decision it forms a precedent that is not
be departed afterwards. The doctrine of precedent is not simply a mechanical process of matching
similarities and differences. It is not merely a science of comparison for it embodies the art of
interpretation, the art of propounding the principle to be derived from each case.
The use of precedent is an indispensable foundation upon which it is decided what the law is and how it is applicable in individual cases. It brought certainty and consistency in the law. It eliminates the element of ambiguity and enables the lower courts to follow the decision of the higher court unanimously and without question. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs as well as provides a basis for development of legal rules.
Ratio Decidendi:-
The ratio under the principle of Stare decisis alone has binding value, Ratio decidendi of a judgment may be defined as the principles of law formulated by the Judge for the purpose of deciding and resolving the issue which is the subject of the case. This Ratio Decidendi is not the facts of the case, the law applied to the case, or the order of the case. Instead, it’s the “necessary reasoning regarding legal aspect” of the case that the judge needed to resolve issue in the case.
Professor Goodhart enunciated the following rules for the determination of Ratio decidendi.
(a) By distinguishing material facts from unimportant facts,
(b) By discovering the precedents applied to identify the court’s approach,
(c) By restricting analysis to the majority opinions and
(d) By reading out subsequent decisions and considering it at several levels i.e. Reversal Test2.
Obiter dicta:-
Dictum is an observation as to the law made by the judge in the course of the case. Obiter dicta of a judgment may be defined as opinion or unnecessary remark or observations made by the Judge, but are not essential for the decision reached. The meaning of obiter is “by the way” and dicta are the plural for dictum which literally means sayings. An Obiter dictum is a statement made by a judge in course of his judgment which may not be relevant to the issue before him. It has no such binding authority as is a byproduct of the original judgment. They are only remarks and opinions of the judge which was neither expressly nor impliedly treated by judge as a necessary step in reaching his conclusion. In the course of arguments and decision of the case many incidental consideration arises which are all parts of the logical process but which necessarily have different degrees of relevance to the central issue. Judicial opinions upon such matters, whether they are merely casual or wholly gratuitous are known as Obiter dicta. Although it is the duty of the court of justice to decide the questions on principle if they can, they must take care in the formulation of principles to limit themselves to the requirements of the case in their hands. All others at the best, are of persuasive efficacy. They are not true, has not the binding weight of the decision of the case and the reasons for the decision.
Stare Decisis and Constitution of Pakistan:-
The Constitution of Pakistan recognizes the “Doctrine of Precedent” according to the hierarchy of Courts prevailing in Pakistan. Article 189 of Constitution of Islamic Republic of Pakistan provides that the precedents laid down by Supreme Court of Pakistan is binding on all other courts in Pakistan that is the Shariat Court, the High Courts and all other Courts subordinates to the High Court. The article states that
“189. Any decision of the Supreme Court shall, to the extent that it decides a question of law
or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.”
It is specified in the article that only those decision are binding that decide a question of law or enunciate a principle. The principle adopted in the said article of Constitution is more powerful and much wider. The application of said doctrine of precedent in relation to the article 189 of Supreme Court is further strengthen by Supreme Court also as it is held by the Court:
“The pronouncement of Supreme Court on a question of law is a law declared unless it is altered or overruled by the Supreme Court, the High Court has no option but to follow it”
This view of Supreme Court is further enhanced by the Supreme Court as it was held:
“From the day the decision is pronounced all courts subordinate to the Supreme Court and all executive and quasi-judicial authorities are obliged by virtue of the Constitution to apply the rules as laid down by the Supreme Court”
In Pakistan, the precedents which are binding on all courts are not only the ratio of the Supreme Court where the reasoning is binding but the obiter of the Supreme Court is also binding. This principle is also reflected in the decisions of Supreme Court where it is held that:
“Any observation of the Supreme Court even the obiter is binding on High Court”
It is further held by Supreme Court that:
“Even a decision of the Supreme Court for which no reason is given in order is also binding on all courts in the country”
The Supreme Court is not bound by its own decisions, because article 188 of the Constitution of Pakistan 1973 provides the power to the Supreme Court to review any of its judgments pronounced earlier. The practical application of article 188 of Constitution of Pakistan is observed in case of Miss Asma Jilani vs Govt. of Punjab & other where Supreme Court review its own decision made in Dosso case and it is held by Justice Hamoodur Rehman:
“ The rule of stare decisis does not applied with the same strictness in a criminal, fiscal and constitutional matters”.
The article 203-GG of the Constitution of Islamic Republic of Pakistan 1973 provides that the decision laid down by the Federal Shariat Court in exercise of its powers is binding on the High Courts and all subordinate courts to them. The article 203-GG stated as under:
“203-GG. Any decision of the court in exercise of its jurisdiction under this chapter, shall be binding on a High Court and all courts subordinate to the High Court”
With respect to High Court the article 201 of Constitution provides that the decision made by any High Court which decides any question of law or formulate any principle of law, must be binding upon all courts sub-ordinate to it. The article 201 of 1973is mentioned as under:
“201. Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all courts subordinate to it.”
There are several rules that are formulated by the courts under the array of the article 201 of
The constitution and these rules are mentioned as under:
- All subordinate courts are bound by the rulings of High court which only yield to the rulings of Supreme Court.
- A Single judge is bound by a Division Bench ruling and a division bench is bound by a ruling of Full Bench.
- The decision of a Division Bench of the court can be dissented from by another Division Bench or even by the same bench or may be overruled by a Full Bench.
- The decision of the Single Bench may be dissented from another or by same Single Bench and be overruled by a Division Bench or a Full Bench.
When judges in the highest court provide different reasons for reaching the same conclusion, it becomes difficult to determine the ratio decidendi which shall bind the subsequent and subordinate judiciary. In this aspect of the matter, nothing remains except the actual judgment and a number of weighty opinions. These opinions carry weight and can influence future judgments made by court. If judges in a court have different reasoning to reach the same decision, the debate surrounding the legislative intent or purpose may lose its significance. In such circumstances, the number of judges supporting a particular view becomes more important in shaping the interpretation of the law. This means that the weight given to individual judges’ opinions increases, and the focus shifts from examining the underlying legislative intent to considering the stance supported by a majority of judges.
Conclusion:-
To conclude, it can be stated that stare decisis under the Doctrine of Precedent is of great importance as it is enshrined in the article 189, 201, and 203 of Constitution of Pakistan 1973. Moreover, this principle of stare decisis also elaborates and designed the hierarchy of courts in Pakistan. In addition to this, precedent is also considered as a source of law as its significance is also recognized in Islamic teachings. Thus, this principle plays a vital role to enhance the efficiency of the judicial system of Pakistan and its application must be extended in accordance with the true spirit of the Constitution of Pakistan 1973
Written by:
Hassan Akhter
The Lex Writer
