Of Laws Repeal and Stare Decisis


By Mahmood Ahmad Chaudhary, Advocate Supreme Court, Islamabad

Law in its generic sense is a body of rules of action or conduct prescribed by Controlling Authority, and having binding legal force.

Law of a State is to be found in its statutory and constitutional enactments, as interpreted by its Courts and in absence of statute law, in ruling of its Courts. As to its origin "Law" is derived from legislation or from custom.

The above rudimentary definition of the word law is by no means an exhaustive one and has been given only with the object of introducing the subject.

It is oft quoted metaphor that laws are organic beings, living things which vegetate and grow like plants. So that, of necessity, they need as much to be pruned, trimmed, spruced up and kept in shape as plants. Plants need a particular environment conducive to their growth and optimum usefulness. Just as the environment changes so does their tending; parts having out-lived their utility are done away with allowing the rest to be healthy and robust for greater utility and purpose. Laws' repeal, a fortiori, is as much necessary.

++Repeal++ is commonly understood as the abrogation or annulment of a previously existing law by the enactment of a subsequent statute which declares that the former law shall be revoked and abrogated (express repeal) or which contains provisions so contrary to or irreconcilable with those of the earlier law that only one of the two statutes can stand in force (i.e. implied repeal). It is distinguished from dispensation which only sets it aside in a particular instance. (Black's Law Dictionary).

I am tempted, here, to cite a historical, albeit, despotic instance of repeal and dispensation of an existing law. It is Henry VIII's marriage and his suit for divorce. The Royal family had desired Henry VIII to marry Catherine the widow of his deceased brother for State reasons. Unfortunately, this plan ran counter to an ancient Ordinance of the Church, which forbade a man to marry his deceased brother's wife. In this dilemma the Pope when appealed to, had recourse to his dispensing powers. He set aside the Ordinance enabling the marriage to take place. This exercise of dispensing powers was understood as a usurpation, the law remained inalterably the law. Later on when Henry wanted divorce from Catherine, the Church refused to grant, marriage being a sacrament. The King pleaded that the dispensation was legally defective. He wanted the Pope to annual the marriage. Wolsey, Lord Chancellor, was used by his King to urge upon the Pope to comply but the pontiff hesitated. On this the King went furious. He stripped Wolsey of all his honours and ordered his execution. Before dying Wolsey cast a regretful look upon his life using to his attendants words which Shakespeare employed almost literally in his play Henry VIII: "Had I but served my God with half the zeal I served my King He would not in mine age have left me naked to mine enemies." It is a matter of history that Henry wrested a decree from the English clergy, declaring him to be head of the English Church. He made the Parliament bow to his will in repleaing the laws by which Rome possessed a foothold in England. The Parliament renewed a statute of the 14th Century giving the English ecclesiastical Courts to pronounce finally upon the King's suit. Cranmer, Arch Bishop of Canterbury and primate of England pronounced the desired divorce in his own Court, thus, enabling Henry to marry Anne Boleyn, young and charming maid of honour to Catherine. (A History of Europe by Ferdinand Schevill)

++Authority to Repeal++ . It is common knowledge that the authority or power to legislate lies with the legislature which makes laws within the frame work of the constitution of the State. The same body has plenary power to provide for the repeal of the enacted laws.

++The Concept of Repeal of Laws++ is not only basic to legislation, it inheres in it. It is, as it were, its necessary concomitant. Just as a road becoming rutted, corrugated and bumpy by use and age needs must be pealed off, scraped, widened and reconstructed to allow easy and smooth flow of ever growing traffic, so is a law getting out of step with time repealed and replaced by a new one to meet the pressing needs of the society catering to the exigencies not hitherto visualized. Provision of repeal is, therefore, incorporated in every statute.

We believe that God has been sending down from time to time holy Books on His Apostles, the later repealing and replacing the earlier. The last of the holy books being the Quran. It is an article of faith with the Muslims that the Quran is the last and the final Word of Allah revealed on the Holy Prophet Muhammad (Peace Be Upon Him) - the last and greatest, the Seal of the whole long succession of Holy Prophets. The Quran not only repeals and replaces all the earlier Scriptures but also verifies, confirms, consolidates and saves them, where necessary. The Quran lays down religious principles that are the basis of Islamic Law or Shari'a. The concept of repeal is not only clearly and explicitly stated in the Holy Quran, it is deeply enshrined there. Reference here is to Sura Baqra Verse; 106 of which following is the English rendering by Abdullah Yousaf Ali:

"None of our revelations

Do we abrogate

Or cause to be forgotten

But we substitute

Something better or similar

Knowest thou not that

Allah Hath power over all things."

God's message from age to age is always the same, but that its form may differ according to the needs and exigencies of the times. That form was different as given to Moses and then to Jesus and then to the Holy Prophet Mohammad (P.B.U.H). Some commentators apply it (repeal) also to the Ayat of the Quran. There is nothing derogatory in this if we believe in progressive revelation. In Sura Al-e-Imran, Verse: 7, we are told distinctly that some of its verses are basic or fundamental and others are allegorical and it is mischievous to treat the allegorical verses and follow them (literally). On the other hand it is absurd to treat such a verse as (Sura Al-Baqra Ayat: 115 as if it were abrogated by Ayat: 144 of Sura Al-Baqra about the Qibla. We turn to the Qibla but we do not believe that God is only in one place. He is everywhere. (The Holy Quran: Translation by Abdullah Yousaf Ali)

So far, the attempt has been to present a sketchy and bald outline of the doctrine of repeal of laws by legislature. I now intend to take up the repeal of case law by the judicature which in legal parlance is called overruling of a precedent. However, purpose behind both is the same; that is, "salus populi suprema lex." Ensuing discourse is on Stare decisis and the exercise of judicial discretion in overruling a precedent.

++Stare decisis++ : It is a Latin term which means to abide by or adhere to decided cases. It is the policy of Courts to standby precedent and not to disturb settled point. When Court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same, regardless of whether the parties and property are the same. A deliberate or solemn decision of Court made after argument on question of law fairly arising in the case and necessary to its determination is an authority or binding precedent in the same Court or in other Courts of equal or lower rank in subsequent cases where the very point is again in controversy. The doctrine is one of policy grounded on the theory that security and certainty require that accepted and established legal principle, under which rights accrue, be recognized and followed, though later on found to be not legally sound but whether previous holding of Court shall be adhered to, modified or overruled is within the Court's discretion under circumstances of case before it. Under doctrine, when point of law has been settled by decision, it forms precedent which is not afterwards to be departed from, and while it should ordinarily be strictly adhered to, there are occasions where departure is rendered necessary to vindicate plain obvious principles of law and remedy continued injustice. The doctrine is not ordinarily departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it. The doctrine is limited to actual determination in respect to litigated and necessarily decided questions and is not applicable to dicta or obiter dicta.

Stare decisis is distinguishable from 'Res-judicata' which bars re-litigation of the same cause of action between the same parties where there is a prior judgment; rule that a final judgment rendered by a Court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. And to be applicable, requires identity in things sued for as well as identity of cause of action, of persons and parties to action and of quality in persons for or against whom claim is made. The sum and substance of the whole rule is that a matter once judicially decided is finally decided.

Writing on precedent and its overruling, Lord Denning in his book, "The Discipline of Law" says" "my theme is that the principle of law laid down by the Judges in the 19th Century however suited to social conditions of that time are not suited to the social necessities of the 20th Century. They should be moulded and shaped to meet the needs and opinion of today ...Restless under authority, irked by it when I feel it to be wrong nevertheless it is my duty to abide by it unless I can persuade my brethren that it is working injustice. Then when authority is shown to be wrong, the time will come when it will be over thrown: or at any rate it should be. If not by the Judges then by Parliament at the instance of the Law Commission, ---- Nor will I be easily led by an undiscerning zeal for some abstract kind of justice to ignore our first duty, which is to administer justice according to law which is established for us by act of Parliament, or the binding authority of precedent. The law is developed by the application of old principles to new circumstances. Therein lies its genius. Its reform by the abrogation of those principles is the task not of the Courts of Law but of Parliament----"the doctrine of stare decisis which according to their interpretation, means: "Standby your decisions and the decision of your predecessors, however wrong they are and whatever injustice they inflict----, If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them. They will be lost in---"That codeless myriad of precedent, The wilderness of Single instances."

The law must be certain. Yes, as certain as may be. But it must be just too." In England the doctrine of precedent has since been transformed by the statement of Lord Chancellor Gardiner in the House of Lords on 26th July 1966. The key paragraph was:

"Their Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. This announcement is not intended to affect the use of precedent elsewhere than in this House"----"Let it be not thought that I am against the doctrine of precedent. I am not. It is the foundation of system of case law. This had evolved by broadening down from precedent to precedent. By standing by previous decisions we have kept the common law on a good course. All that I am against is its too rigid application --- a rigidity which insists that a bad precedent must necessarily be followed. I would treat it as you would a path through the woods. You must follow it certainly so as to reach your end. But you must not let the path becomes too over grown. You must cut out the dead wood and trim off the side branches else you will find yourself lost in thickets and brambles. My plea is simply to keep the path to justice clear of obstructions which would impede it."

The fact is that the legal problem of overruling precedent is a critical one and is faced by most superior Courts. The authority to overrule exists in most countries. We know that the House of Lords in the United Kingdom is not bound anymore by its precedent. The Supreme Court of the United States was never bound by its own decisions, and neither are those of Canada, Australia and Israel. In all these countries the question is the same: when should the highest Court overrule its own decisions? Clearly, if prior ruling is acceptable to the Court the question does not arise. But when if the previous ruling is not acceptable? Here we must distinguish between two types of prior decisions. At times, the Court may view a prior decision as incorrect, unlawful, or premised upon a mistake (a wrong decision in any case). In such cases, the Court must deviate from the prior stand. It is both the moral and legal duty of the Court to rectify the error and establish the correct rule. But at other times, the prior decision is a possible one. It is lawful but not an alternative the present Court would have chosen had it sat in judgment. These are the hard cases which admit of more than one legal solution. In such circumstances, it may be said that the present Court has discretion to overrule. What considerations must guide the Court in making its decisions? How should the Judge exercise his discretion when he is faced with a legal problem that has more than one legal solution? As judicial discretion is not absolute and is rather limited, in the ultimate analysis the judge's judicial philosophy a product of his experience and worldview gained through knowledge, consummate skill, prudence, fortitude and temperance---determines his choice.

Aharon Barak in his book: "Judicial Discretion"----(English translation of the Hebrew text) has with adroitness and authority dealt with the proposition in hand. (I must here, express my deep gratitude to Mr. Justice Ch. Fazal Karim, formerly of the Supreme Court of Pakistan for sending me a copy of the same with compliments I hardly merit.)

Deliberating upon the subject Ahron Barak writes:

"____in making the choice that is to follow a precedent or to deviate from it, the Judge must act reasonably. What is the test of reasonableness? His answer is that he must select the view that gives rise to greater good than harm; he must act objectively being alive to the demands of his society. His thesis is that a Judge acts within a given normative frame work which he must endeavour to preserve in order to insure stability, certainty, consistency, continuity, and reliance thereby allowing the public and the government to plan their conduct. Overruling a precedent erodes consistency, a basic characteristic of every normative system and one founded upon justice, fairness and equality. Writing about deviation from a precedent, he maintains that the history of law is the history of the conforming the law to the changing needs of society. A normative system that does not allow for growth will ultimately stagnate. He further accounts for what he describes institutional and inter-institutional factors weighing on the mind of the Judge in honouring a precedent. He also concedes a role to intuition in making the decision. I do not intend to enlarge upon all these factors here, suffice it to record his final opinion. His conclusion in the end is that where the scales are balanced, it is best to uphold precedent.

"Between truth and truth _____stability is preferable.'

Writing on truth Lord Chancellor, Sir Francis Bacon says: "Truth is the sovereign good of human nature". The inquiry, knowledge and the belief of truth is the highest quality that a man's nature can have. Latin proverb is: "Great is truth and must prevail."

Stability is aimed at achieving what Aristotle calls the "Good of Man".To him, "Every act and every science and in like manner every action and every moral choice aims, it is thought at some good." That the good of Man is a "working of the Soul in the way of excellence, or if excellence admits of degrees, in the way of best and most perfect excellence. Virtue he says is the fruit of intellectual and moral excellence and defines it as a state on condition in which man exercises a deliberate choice using his reason to choose between extremes, "as a man of practical wisdom would determine". Aristotle concludes: "He who is to be good must have been brought up and habituated well and then live accordingly under good institutions, and never do what is low and mean. Now, these objects can be attained only by men living in accordance with some guiding intellect and right order, with power to back them." (Aristotle's Ethics). Dictum of Jeremy Benthem (1749-1632) is that all actions are right and good which promote the greatest happiness of the greatest number." While writing about stability in his master piece - the Leviathan, Thomas Hobbes (1588-1679) propounds that the authority of the sovereign (whether an assembly or a monarch) depends on the fact that Supreme Power is used to provide for the citizens that stability and physical security without which life would be "a war of every man against every man" and the conditions of humanity "nasty, brutish and short". (Reader will excuse me for these luxations).

Finally, let us with all reverence turn to the Holy Quran (the fountain of knowledge, wisdom and guidance) for having the most authoritative and infallible view of the proposition being canvassed.

Now, "Good" alluded to above, in the language of the Quran is called (Khair) whereas mischief is termed (Fasad); justice is parallel for (Adal) and righteousness is termed (Bir); (Taqwa) is the equal of piety - by no means these are the exact equals or parallels. What then is the standard by which we may judge "Good"? It is God's Will. Therefore, when we submit to God's Will, and real Islam illuminates us we see the Highest Good. There has been and is much controversy as to what is the Highest Good. To the Muslims, there is no difficulty; it is the will of God. He must ever strive to learn and understand that Will. But once in that fortress, he is secure. He is not troubled with the nature of Evil. Evil is the negative of God's Will. Good is conforming to God's Will. As to righteousness, it comes from sincere devotion to God, and unselfish service to man. Taqwa signifies; i). The fear of God which according to the writer of proverbs in the Old Testament is the beginning of wisdom; ii) restraint or guarding one's tongue, hand, and heart from evil; iii) righteousness, piety and good conduct.

God Almighty enjoins the believers; "--- Be Just; that is next to piety: and fear Allah, for Allah is well acquainted with all that Ye do." (Sura Maida V: 8 "And Allah encompass eth all. And He knoweth all things."

Allah loves the good and the just; abhors the spreading of mischief in the land. He Commands His people to establish on earth a society which is free of mischief: (Fasad) and abound in good (Khair), Happiness__ a society with apple-pie order. And this, it is ordained, will be achieved by justice (Adal).

The realization of this cherished goal is the paramount consideration which a judge must bear in mind while adjudicating. The maxim for the judge while exercising his discretion in overruling a precedent is: "Curb mischief, promote good". To distil good from mischief he must, apart from equipping himself wih cognitive processes, seek ardently, divine inspiration guidance and blessings which the righteous are promised. It is His grace that illumines the righteous. For, in the word of the Quran, (Al-Baqra, V: 157):

"They are those on whom

Descend blessings from Allah and Mercy

And they are the ones

That receive Guidance;" and

"He granteth wisdom

To whom he pleaseth;

And he to whom wisdom is granted receiveth

Indeed a benefit overflowing;

But none will grasp the message

But men of understanding (Al-Baqra: 269)

(The Holy Quran, Text, Translation and Commentary by Abdullah Yousaf Ali)

Before parting, I must not omit to mention that the above untutored lines, to use Doctor Johnson's phrase: "A loose sally of the mind, an irregular undigested piece, not a regular and orderly composition", have been attempted without meaning any diminution to the authority of great masters and without derogation to the sufficiency of astute and erudite scholars of law.

P.S. This is in continuation of my earlier article captioned:

"Let your Own Discretion Be Your Tutor", which appears at page 49 of the Journal Section of 1997 PLD."

© 2020 PakistanLaw.pk, All rights reserved.