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Introduction of Stare Decisis and Precedent
Introduction of Stare Decisis and Precedent
Introduction of Stare Decisis and Precedent
Department of Law
Fatima Jinnah Women University, Rawalpindi
1
Table of Content
Introduction of stare decisis and precedent……….. 3
Doctrine of Stare Decisis in Islamic State………. 3
Doctrine of Stare Decisis in Pakistan…………….3-4
Doctrine of Stare Decisis in Malaysia…………….4
Doctrine of Stare Decises in Nigeria…………………..4-5
Application in the Modern World…………………5-6
Conclusion………………………………………..6
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Introduction of Stare Decisis and Precedent
Stare decisis is a legal doctrine which when making a decision on a related case, obliges court
s to obey historical cases. Stare decisis means that cases are treated in the same fashion with i
dentical circumstances and evidence. Simply stated, it allows courts to obey legal precedents
established by prior decisions.1
In understanding and applying new laws when conducting justice, a precedent is the making
of law by a judge. A precedent can be binding, declaratory, original or persuasive. A binding
precedent is a precedent where a court must obey a declaratory precedent is simply the imple
mentation of an established legal norm, while on the other hand, an original precedent is one t
hat produces and imposes a new legal rule. A persuasive precedent is a precedent that is not b
inding on a court, but entitled to reverence and due consideration.The administration of justic
e includes the application of rules that are applicable to the evidence and questions in dispute.
In order to decide a case according to the interpretation of the relevant statute, each court also
has the latitude such that in circumstances where the court decides a case that effectively prov
ides a basis for deciding later cases concerning related evidence or difficulties, such a court is
presumed to have set a precedent.2
2
(Bello), https://drive.google.com/file/d/1OVD9Hb16ZSn6mzcatutlNKbuTkuZ1xIV/view
3
(munir, 2008), https://drive.google.com/file/d/1BEB6ioLe088nfc5qhN9F7I8bYK_S7u2E/view
3
Doctrine of Stare Decisis in Malaysia
In Malaysia, there are three sets of judges: the civil courts, the Shariah courts, and the tribal c
ourts of Sabah and Sarawak. The Federal Constitution of Malaysia requires civil courts in the
region, consisting of the Federal Court, the Court of Appeal and High Courts, to enforce civil
law. Under the Federal Constitution Ninth Schedule State List item and the Federal List item,
Shariah Courts of States and Federal Territories have been created. In Sabah and Sarawak, Na
tive Courts are composed under the Nine Schedule State List item of the Federal Constitution
. In the Sukma Darmawan scenario, it is remembered that these three sets of courts are clearly
parallel to Sasmittat Madja v Ketua Pengarah Penjara, Malaysia and Anor, and therefore one
court system does not overlap with other systems. Each state and federal territory has its own
different sets of Shariah courts.the Shariah Appeal Court, Shariah High Court and Shariah Su
bordinate Courts are the hierarchy of Shariah courts in Malaysia. Administratively speaking,
all states. However all Shariah Courts are independent in relation to judicial matters. In short,
in the Shariah Courts of Malaysia,the doctrine of judicial precedent is not applicable. Several
attempts were made in this respect to introduce the incorporation into the Islamic judicial syst
em of the doctrine of judicial precedent. A remarkable attempt was a proposal by Dr Syed Ali
Tawfiq Al-Attas, Director General of the institute of Islamic understanding Malaysia to have
a great mufti in the country4
4
(bulletin, 2013), https://drive.google.com/file/d/1TCOI6warVYrlOyn42x0hE4-ArQukAF-t/view
4
of Nigeria 1999, s 244, states that in all civil cases before the Shariah Court of Appeal, the ap
peal is based on judgments of the Shariah Court of Appeal before the Court of Appeal. The C
ourt of Appeal shall, in view of any issue of Islamic personal law which the Shariah Court of
Appeal has authority to determine, Do not dispute the authority of the Shariah Court of Appe
al of the State to hear criminal appeals. Only the validity of the statute, that is, the compliance
of the law with the rules of the Constitution, can be determined. Its final rulings in Nigeria ar
e binding on all the courts below it. It can also be seen that the provisions set a statutory prec
edent for the Shariah Court of Appeal of each State.5
6
(munir, 2008), https://drive.google.com/file/d/1BEB6ioLe088nfc5qhN9F7I8bYK_S7u2E/view
(Bello), https://drive.google.com/file/d/1OVD9Hb16ZSn6mzcatutlNKbuTkuZ1xIV/view
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Conclusion
It can be noted that in the Islamic judicial system, the doctrine of judicial precedence has no s
ubstantial meaning as it was discussed above from the agreement of the companions, the act o
f the second rightfully driven Caliph Umar (r.a) and the moral rule (the ijtihad cannot be reve
rsed by another ijtihad). With case must be determined by judges in Islam in compliance with
its own merits. Some would argue that there is a community interest in applying the judicial p
recedent doctrine, and to some degree it appears to be right. There are however, certain impor
tant negative consequences that can be triggered by the introduction of the judicial precedent
doctrine, i.e. the instability of legal judgments, the closure of the ijtihad gates, the feeling of i
nferiority of subordinate courts and the persistence of mistaken judgement that leads to injusti
ce.In the Islamic legal system, if the doctrine of judicial precedent is applied, the judges of th
e supreme courts will be treated as mujtahid, while the judges of the inferior courts will be re
garded as muqalid. This view opens the field for closing the door of ijtihad, which most conte
mporary Shariah scholars strongly discourage. It is also unacceptable that a qadi is an absolut
e muqalid who is forced to obey a mujtahid's decision, while a qadi himself must have the qu
alification to practise ijtihad in decisionmaking situations. Having agreed with the principle o
f stare decisis, the injustice would be maintained if the judgement of the supreme courts were
incorrect. In Islam, on the other hand, there is no constant recurrence of inequality or wrong. I
t is noteworthy that the Ijtihad statute can not be replaced by another. Applicable only if all pr
evious and latter judgments are based on ijtihad.
Bibliography
Bello, A. A. (n.d.). Binding Precedent and Shari'a/Islamic Law in Nigeria. new york law school.
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munir, m. (2008). precedent in islamic law with speacial references.