Precedent and Stare Decisis in Hong Kong: the Case of Transgenders

The doctrines of “precedent” and “stare decisis” have been pillars of Western Law that have withstood the test of time. They have been especially important in upholding the “Rule of Law” based on the tenets of predictability, expectations and stability, which are all important in a society based on norms and codes. Yet these legal concepts of precedent and “stare decisis” have been condemned for stifling the progress of law in society by disallowing much needed change where there is a genuine need for change.

This paper will examine this debate in detail within the context of the debate on the law concerning “transgenders” in Hong Kong, whose rights, as many observers point out have been unfairly limited by the concepts of precedent and “stare decisis”. The paper will first define the concepts, provide the justifications for precedence and “stare decisis” based on “Rule of Law”, and then discuss the case of “transgenders” in Hong Kong to make the case for re-evaluating the tenets of “Stare Decisis”.

Stare Decisis” is a Latin term that means to “to stand by decided cases, to uphold precedents; to maintain former adjudications” (Black 1910). According to the Bouvier’s Law Dictionary, Stare Decisis is defined as “to abide or adhere to decided cases; it is a general maxim that when a point has been settled by a decision, it forms a precedent which is not afterwards to be departed from; the doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided or contrary to the principle” (Bouvier 1856).

This means that unless there is an exceptional case, decisions taken by a higher court are binding upon the decisions of the lower courts. There are man justifications for the legitimacy of precedent and “stare decisis”. In modern law precedents are assumed to have the foundation of fair and unbiased legal opinion and decisions that are not politically guided, and also that they have the basic authority of constitutional enactments.

The broad justification for using precedent and stare decisis on the basis of rule of law, is that these concepts enable the courts to establish stability, establish respect for legal and societal institutions as well as for expectations arising out of them, establish decisional wisdom, establish norms of fairness, integrity and justice, and reduce the likelihood of judges of deviating from established paths and making decisions based on personal concepts of morality and justice instead of societal concepts of morality and justice (Monaghaun 1988).

The justification for precedent and stare decisis is established well in the case “US supreme Court Planned Parenthood” case (US supreme Court Case Planned Parenthood v Casey 1992) where the Court pointed out that “there is a point beyond which overruling would over tax the country’s beliefs in the Court’s good faith and the legitimacy will fade with the frequency of vascilation…like the character of the individual the legitimacy of the Court must be earned over time, and so must the character of the society that aspires to live according to the rule of the law. ”