By: wish4m zahir
You ask a law student on the first step in legal research and they will tell you that it’s finding the law which governs the dispute. This “law” will not only be simplified by the pieces of paper which we call legislation, but usually consist of both statute and case law. These cases form as the explanation to the letter of the law, providing instances, more than once, where Courts have tried different applications of the statute and the ubiquitous interpretations. The researcher will look for cases “on point”. Having found cases which cover an issue, he is to then consider the present status of the case authorities. This will involve the history of the case – whether it has been appealed, affirmed, reversed, distinguished or overruled. It is also important to find out if the case has been followed and cited with approval or criticized. Such information is of critical importance in evaluating the current status or authority of a case. The weight of a precedent will be affected by the reception given to it by other courts and the position of the courts in the hierarchy which followed it or criticized it. The sad part which needs to be said here is the in our nation of laws, there is no place for any such sort of precedence, as far as case law is concerned.
It has to be remembered here that the legal system and culture in our nation of laws is still in its infancy. It was not long ago that the first law graduates first started their practice in the country, and in fact, the reality that almost none of those names have the prefixed ‘late’ before them tells you how young this “infancy” really is.
Courts have existed in the history of our nation, from the Sultan’s Courts to our modern day civil Court tier system, it has existed. Although this is true, the actual sense of litigation came about very late. This is not a negative point though. We have to remember that the birth place of common law i.e. England, also had an infancy stage where the system crawled before it was firmly established. In those days around the seventeenth century, lawyers (or Barristers) had no proper education and learned the application of the law by experience from the Courts. That is why they were called “lawyers-in-situ” or lawyers-in-sitting. It was as late as the 1800s that law began to be taught as a legal subject in any university in England.
Our culture or history stems from the Islamic practice where the Judge usually takes form of an inquisitorial role without the use of lawyers. Although, it would be incorrect to say that they did not exist altogether. For us, legal representation comes from the principle of “wakalah” or agency where the person acts as the party’s agent in representing him in Court.
Anyhow, there were slight instances where the Maldivian legal system cited cases from the higher tiers in Courts or where the High Court (as it then was the highest tier) reviewed matters and ordered a retrial or overruled the judgment of the lower Courts. However, this was never established as a formal practice. One of the main reason is that there is no case reports to begin with, coupled with the fact that a published case report seemed a too infeasible an entity to embark upon.
So it must be said here, that there is a great need for case reports in our nation of laws. If a published report seems to ‘infeasible’, then resort to e-reports, which are almost cost-less. On any scale, it should be the responsibility of the government to ponder upon it and the necessary costs which are incurred seems to low, when the country’s development in law is considered. The justification for using the authority of cases as precedents is the benefit of stability and continuity derived. People need to know the consequences of their acts with a reasonable degree of certainty so that they may conduct themselves within the law. However, stability must be reconciled with the changing needs of society for the sake of progress. This is where the principles of reasonable presumption of the operation of law come in.
A judgment in the civil courts serves a two-fold function. Its primary function is to settle the dispute between the parties: they are not permitted to relitigate the issues that have been decided. Its second function is to serve as a guiding precedent for any similar case to be decided in the future. n our small country, it does help the fact that the recent Supreme Court decision on the former President's eligibility to run for President's judgement was heard orally by the Chief Justice alone while the whole five-justice panel of the Supreme Court tried the matter, and it certainly does not help that the HIgh Court's recent judgment on the invalidity of the second round of election being after the stipulated 10th October bieng decided as "no available grounds to try the matter". There is a need for the Judges as well as practices to mature and own up to the situation. Written judgements and those with justification to thier ruligns need to be seen. only then can we proceed.
The doctrine of binding precedent (staré descisis) has led to the development of a consistent and coherent body of law. Take for instance in England where a completely new system of law i.e. common law has stemmed from the very basis of precedence. It has maintained continuity and provided equality of treatment for litigants faced with similar problems, while filling in the lacuna left by statute. It has also saved judicial time because later judges do not have to review the laws with every case that comes before them. Precedent has produced a degree of predictability. I
You ask a law student on the first step in legal research and they will tell you that it’s finding the law which governs the dispute. This “law” will not only be simplified by the pieces of paper which we call legislation, but usually consist of both statute and case law. These cases form as the explanation to the letter of the law, providing instances, more than once, where Courts have tried different applications of the statute and the ubiquitous interpretations. The researcher will look for cases “on point”. Having found cases which cover an issue, he is to then consider the present status of the case authorities. This will involve the history of the case – whether it has been appealed, affirmed, reversed, distinguished or overruled. It is also important to find out if the case has been followed and cited with approval or criticized. Such information is of critical importance in evaluating the current status or authority of a case. The weight of a precedent will be affected by the reception given to it by other courts and the position of the courts in the hierarchy which followed it or criticized it. The sad part which needs to be said here is the in our nation of laws, there is no place for any such sort of precedence, as far as case law is concerned.
It has to be remembered here that the legal system and culture in our nation of laws is still in its infancy. It was not long ago that the first law graduates first started their practice in the country, and in fact, the reality that almost none of those names have the prefixed ‘late’ before them tells you how young this “infancy” really is.
Courts have existed in the history of our nation, from the Sultan’s Courts to our modern day civil Court tier system, it has existed. Although this is true, the actual sense of litigation came about very late. This is not a negative point though. We have to remember that the birth place of common law i.e. England, also had an infancy stage where the system crawled before it was firmly established. In those days around the seventeenth century, lawyers (or Barristers) had no proper education and learned the application of the law by experience from the Courts. That is why they were called “lawyers-in-situ” or lawyers-in-sitting. It was as late as the 1800s that law began to be taught as a legal subject in any university in England.
Our culture or history stems from the Islamic practice where the Judge usually takes form of an inquisitorial role without the use of lawyers. Although, it would be incorrect to say that they did not exist altogether. For us, legal representation comes from the principle of “wakalah” or agency where the person acts as the party’s agent in representing him in Court.
Anyhow, there were slight instances where the Maldivian legal system cited cases from the higher tiers in Courts or where the High Court (as it then was the highest tier) reviewed matters and ordered a retrial or overruled the judgment of the lower Courts. However, this was never established as a formal practice. One of the main reason is that there is no case reports to begin with, coupled with the fact that a published case report seemed a too infeasible an entity to embark upon.
So it must be said here, that there is a great need for case reports in our nation of laws. If a published report seems to ‘infeasible’, then resort to e-reports, which are almost cost-less. On any scale, it should be the responsibility of the government to ponder upon it and the necessary costs which are incurred seems to low, when the country’s development in law is considered. The justification for using the authority of cases as precedents is the benefit of stability and continuity derived. People need to know the consequences of their acts with a reasonable degree of certainty so that they may conduct themselves within the law. However, stability must be reconciled with the changing needs of society for the sake of progress. This is where the principles of reasonable presumption of the operation of law come in.
A judgment in the civil courts serves a two-fold function. Its primary function is to settle the dispute between the parties: they are not permitted to relitigate the issues that have been decided. Its second function is to serve as a guiding precedent for any similar case to be decided in the future. n our small country, it does help the fact that the recent Supreme Court decision on the former President's eligibility to run for President's judgement was heard orally by the Chief Justice alone while the whole five-justice panel of the Supreme Court tried the matter, and it certainly does not help that the HIgh Court's recent judgment on the invalidity of the second round of election being after the stipulated 10th October bieng decided as "no available grounds to try the matter". There is a need for the Judges as well as practices to mature and own up to the situation. Written judgements and those with justification to thier ruligns need to be seen. only then can we proceed.
The doctrine of binding precedent (staré descisis) has led to the development of a consistent and coherent body of law. Take for instance in England where a completely new system of law i.e. common law has stemmed from the very basis of precedence. It has maintained continuity and provided equality of treatment for litigants faced with similar problems, while filling in the lacuna left by statute. It has also saved judicial time because later judges do not have to review the laws with every case that comes before them. Precedent has produced a degree of predictability. I
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