Passing Remarks by Supreme Court Do Not Constitute Stare Decisis
Ex Parte Orders Not Binding- CA
In a recent decision the Court of Appeal held that passing remarks made in Supreme Court orders, particularly in ex parte proceedings, do not constitute binding precedent under the doctrine of stare decisis.
This clarification came in a series of connected writ applications (CA/WRT/356–368/2025 and others) where petitioners challenged the rejection of their nomination papers for the upcoming Local Government Elections scheduled for 06 May 2025. The rejections were based on the ground that the copies of birth certificates submitted with the nominations had been certified by a Justice of the Peace or a Notary Public.
The petitioners argued that such certifications were legally valid and compliant with Section 28(4A) of the Local Authorities Elections Ordinance No. 53 of 1946 (as amended). The key contention from the respondents, represented by the learned Deputy Solicitor General, was that in the recent Supreme Court Fundamental Rights case Vigneshwaran v. I. Saseelan (SC/FRA/59/2025, dated 04.04.2025), the apex court had observed that certifications by JPs or Notaries did not meet legal standards.
However, the Court of Appeal emphasized that the remarks made by the Supreme Court in Vigneshwaran were delivered during ex parte proceedings and were not part of a final adjudication on the core issue. There it was only decided whether the Petitioners’ fundamental rights have been violated. Since the respondents were not heard, and the application was dismissed without granting leave, the observations could not form a binding ratio decidendi.
In contrast, the Court pointed to its prior reasoned decisions in Kurusamy v. Piyumi Artigala (CA/WRT/241/2025, decided on 04.04.2025) and Sagara Kariyawasam v. Suranga Ambagahatanne (CA/WRT/309/2025, also dated 04.04.2025). In both cases, the Court of Appeal held after full arguments that birth certificate copies certified by a Justice of the Peace or a Notary Public were valid under the applicable election laws.
“…that the passing observations/ remarks made by the Supreme Court in the referenced Fundamental Rights applications carry no binding authority over these proceedings under the doctrine of stare decisis…” – Justice Mohammed Laffar
It further noted that while final judgments of the Supreme Court are binding, ex parte orders lack the comprehensive legal analysis necessary to establish precedent. Additionally, the Supreme Court itself in Jeevan Thondaman v. Returning Officer, Nuwara Eliya (SC/Writ/33/2025) had declined to rule on the same issue, affirming that such matters are best left to the Court of Appeal.
“…An ex parte order, issued without hearing the opposing party, serves urgent interim relief but carries no precedential weight. Such orders are provisional by nature, often grounded in incomplete arguments and exigent circumstances. They lack the rigorous legal analysis characteristic of a binding ratio decidendi. For example, a stay order granted ex parte to prevent imminent harm cannot establish a legal principle. Only after a full hearing, where both parties present arguments, can a court deliver a judgment capable of setting precedent. Thus, while ex parte rulings address immediate needs, they do not contribute to the jurisprudential corpus that binds future cases…” – Justice Mohammed Laffar
Case No: CA/WRT/356- 368/2025 [Decided 10.04.2025]
Before: M. T. MOHAMMED LAFFAR, J (President C/A)- Acting and K. P. FERNANDO, J.
