Exception to Stare Decisis
1) Distinguished Precedents
2) Per Incuriam Precedents
3) Persuasive or Non-Binding precedent
4) Overruled Precedents
Distinguished Precedents – A judge may refuse to be bound by a precedent, when he is manages to distinguish the precedent after finding material differences between the previous cases than his present case and the previous case that laid down the precedent which is about another area of law and the judge denies an analogy.
This is where the judge satisfies himself that even if he had decided the precedent case and had decided similarly to the actual precedent decision. He has to go together with the logic and not forced to make another decision as he likes to do now. For example, because it turns out that the facts of the cases are significantly different. In addition, a judgment which had been decided Per Incuriam does not have to be followed as precedent because Per Incuriam literally translated as ‘through want of care’, Per Incuriam refers to a judgment of a court which has been decided without reference to a statutory provision or earlier decision which would have been relevant and binding. The significance of a judgment having been decided Per Incuriam is that it does not then have to be followed as precedent. Despite of it judgement is a rare exception. The lower courts are free to depart from an earlier judgment of a superior court where that earlier judgment was decided Per Incuriam.
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Per Incuriam Precedents – this refer to decisions made where some relevant statutory provision or precedent had been brought to the court’s attention. Among the reason to use judicial precedent is to ensure consistency of decisions, certainty and uniformity. Sometimes, legislation or statutes does not contain all the information needed to be clarified or interpret. This is when the judicial decision is made and it became authoritative.
Persuasive Precedents – Decision of superior courts which have been regarded as non-binding by its successor or court of higher position or at the same level of the superior courts. Obiter dictum and decisions are only persuasive when it is made by courts outside the Malaysian judicial hierarchy.
Overruled Precedents – Courts are not bound to follow precedents which have been overruled by a subsequent decision of higher court