STARE DECISIS

3956
J/O/C
T.M Lamahewa
STARE DECISIS

Since the common law is emphasized the need to achieve certainty in law, so as to avoid
arbitrary approaches to similar problems that surface in courts. There developed very early, a
practice by which decisions of higher authority bound judges in lower courts. This concept
of the binding effect of an earlier decision by a court of higher authority is referred to as the
doctrine of Stare decisis literally – let the earlier decision stands the doctrine was developed
in the English common law and receive by legal system with a common law foundation.

The operation of the principal necessarily limits the law making or creative role of the
judiciary., that we referred to a case earlier. In other words the creativity of judges in a
common law system will depend on whether there is a strict adherence to, or a liberal
approach to the doctrine of Stare Decisis.

Since Roman-Dutch law is derived from the Civil law, legal traditional, it is not surprising
that he concept of stare decisis was unknown in this system. This indigenous legal tradition
emphasized the importance of the situational aspect of a case that came up for decision in the
courts of law. Though even these courts considered that decisions arrived at the past disputes
could guide the judges deciding later cases. However the common law concepts of stare
decisis entered the Sri Lankan legal system because of the English legal values used in the
administration of justice in the British period of colonial rule. Thus the concept of stare
decisis was followed by our courts even when they were invariably called upon to apply the
Roman –Dutch law or the indigenous. Important Sri Lankan decisions laws emphasized the
importance of the doctrine .Even in a context where the structure of the judicial system in this
country has changed over the years. As an example it can be mention the case of Bandahamy
V Senanayaka 1960 62 NLR . 313 and Mosajees V Karolis Silva 1967 70 NLR .217 They are
two unreported decisions that show the same concern in the Costa V. Jayathilaka S.C 265/74
M.C Mt. Lavinia 46741/A and Walker Sons and Co. ltd V Gunathilaka C.A (S.C)
Application no 365/76.

In the Walkers case it was argued that the doctrine of stare decisis was swept by the
Republican constitution of 1972 , and could not be considered as applicable today as an
unwritten law preserved by articles in the 1972 and 1978 constitutions. That is the article
12(1) 1972 constitution and Art. 168 and 1978 constitution. The majority decided that as he
constitutional changes had been effected in legitimate manner even according to general
principles , earlier laws continued in force, so that the specific constitional provisions mearly
declared the existing legal position. They concluded that decisions of the superior
pronounced according to the doctrine of stare Decisis were part of the unwritten laws of the
land that continued despite the constitutional changes. Wanasundara J how ever dissented and
accepted the argument that in Sri Lanka, The doctrine of Stare Decisis was a rule of practice
in the courts, rather than unwritten laws, and that it did not survives the constitutional
changes that were introduced in 1972 and 1978. He thought that the Supreme Court should
exercise its rule making power to determine the rules that would decide how the doctrine
should apply in Sri Lanka Today.

Wanasundara J went on to say that it was unsatisfactory for the supreme court to determine
these rules is an ad ho/ manner in litigated cases that came up for decision in the courts.

The divergent views expressed in the Wolkers case focus our attention on several important
questions . these questions themselves suggest that wanasundara J’s distending judgment
should reresuve special attention as an important contribution to the development of the law
in this area.

When consigering about the recent cases the case of Natali Abesundare V. Christopher
Abeysundere and another is very important. This was happened on October 1997 in High
court in Galle. This case is under the Penal Code, S. 362 B - Bigamy - Muslim Marriage
contracted during the subsistence of a monogamous marriage - Validity of the second
marriage -Marriage Registration Ordinance, Sections 18, 19 (1), 35 (1) , 35 (2) and section
64. In this case The accused-respondent and his first wife the appellant both Roman Catholics
were married under the Marriage Registration Ordinance. During the subsistence of the first
marriage, the accused registered a marriage with one Miss Edirisinghe under the Muslim
Marriage and Divorce Act. The accused was convicted of the offence of bigamy. His defense
was that prior to his second marriage, both he and Miss Edirisinghe had embraced Islam; and
as such, the second marriage was valid.

Section 18 of the Marriage Registration Ordinance prohibits polygamy and sections 18, 19
(1), 35 (1) and 35 (2) read together show beyond doubt that the Ordinance contemplates only
a monogamous marriage; and the respondent could not, by a unilateral conversion to Islam,
cast aside his antecedent statutory liabilities and obligations incurred by reason of the prior
marriage. The rights of the respondent are qualified and restricted by the legal rights of his
wife whom he married in terms of the Marriage Registration Ordinance.
The second purported marriage of the respondent during the subsistence of the prior
marriage contracted under the Marriage Registration Ordinance is void, notwithstanding the
respondent's conversion to Islam. Attorney-General v. Reid (1966) 67 NLR 25 P.C. and Reid
v. Attorney-General (1964) 65 NLR 97 SC overruled.

In this case these cases were referd by the Judges as stare Decisis

1. Attorney-General v. Reid (1966) 67 NLR 25 P.C.

2. Weatherley v. Weatherley (1879) Kotze 71.

3. Niboyet v. Niboyet 4 PD 1 (Court of Appeal).

4. King v. Perumal (1912) 14 NLR 496 (Full Bench).

5. Pasmore and others v. Oswaldwistle Urban District Council (1898) A.C 387, 393.

6. Reid v. Attorney-General (1964) 65 NLR 97 SC.

7. Smt Sarla Mudgal, President, Kalyani and Others (Petitioners) v. Union of India and others
(Respondents) AIR 1995 SC 1531.

The material facts in the present case are almost the same as the facts in Reid's case. Reid
married Edna Margaret de Witt at St. Mary's Church, Badulla, on 18th September, 1933.
Both parties were Christians at the time of the marriage and they lived together until 1957. In
1957 Reid's wife left him and obtained an order for maintenance against him in the
Magistrate's Court of Colombo. On 13th June 1959, Reid and a divorced lady named Fatima
Pansy were converted to Islam. On 16th July 1959, they got married in Colombo and the
marriage was solemnized by the Registrar of Muslim Marriages under the provisions of the
Muslim Marriage and Divorce Act, not-withstanding the fact that Reid's earlier marriage was
subsisting. Reid was indicted before the District Court of Colombo and was convicted of the
offence of bigamy under section 362 (B) of the Penal Code. He appealed against the
conviction to the Supreme Court and his conviction was quashed. The Attorney-General
appealed against the judgment of the Supreme Court to the Privy Council. The Attorney-
General's appeal, however, was dismissed by the Privy Council. As in the instant case, the
only question that arose for consideration is whether the third ingredient of the offence of
bigamy was established. Their Lordships of the Privy Council concluded that "whatever may
be the situation in a purely Christian country (as to which their Lordships express no opinion)
they cannot agree that in a country such as Ceylon a Christian monogamous marriage
prohibits for all time during the subsistence of that marriage a change of faith and of personal
law on the part of a husband resident and domiciled there. They agree with the observations
of Innes, J. almost 100 years ago. In their Lordships view in such countries there must be an
inherent right in the inhabitants domiciled there to change their religion and personal law and
so to contract a valid polygamous marriage if recognized by the laws of the country
notwithstanding an earlier marriage. If such inherent right is to be abrogated it must be done
by statute. Admittedly, there is none ... It follows that as the Attorney-General of Ceylon
cannot establish that this second marriage was void by the law of Ceylon by reason of the
earlier Christian monogamous marriage the appeal must fail."

By considering all these facts judges gave the judgement as fallows.

For the reasons I have endeavored to set out above, I hold that Reid's case [supra] was
wrongly decided and must be overruled. As stated earlier, the material facts in Reid's case
and in the present appeal before us are almost identical and the legal issues are the same. I
accordingly hold that the second purported marriage of the respondent to Miss Edirisinghe
during the subsistence of the prior valid marriage contracted under the Marriage Registration
Ordinance is void, notwithstanding the respondent's conversion to Islam. It follows that the
charge of bigamy (section 362 (B) of the Penal Code) preferred against the respondent is
proved.

The appeal against the acquittal of the respondent by the Judge of the High Court is
accordingly allowed and the judgment of the High Court is set aside. I affirm the conviction
and the sentence imposed by the learned Magistrate.

Referances-

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