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UNIVERSITI TEKNOLOGI MARA MALAYSIABACHELOR OF LEGAL STUDIES (HONOURS)2009/2010 SESSION
DO JUDGES MAKE LAW?ASSESSMENT II – ASSIGNMENT IOCTOBER 2009BY
KHAIRUL IDZWAN BIN KAMARUDZAMAN / 2006146311MOHD AKMAL BIN HAMSIDI / 2006146315
PREPARED FOR:BACHELOR OF LEGAL STUDIES (HONOURS)LAW 511 | JURISPRUDENCE II | GROUP DASSOCIATE PROFESSOR IBRAHIM LAMAT
1
 
Judges are main actors in judiciary as they are those who are going to determine thefreedom of the judiciary, the symbol of justice and they are also persons who are going toapply the law in the case before them. Nevertheless, there is an issue of whether judgesdo make law. To put it differently, are judges merely law finders or are they really law-makers.It is a fact to the legal fraternity that the primary role of judges is to apply the existinglaw into the case he is deciding. So, judges need to find any pre-existing law that theywish to apply and by virtue of that act, judges are law finders instead of lawmakers. Theyhave to find the law and not to enact the law. This is due to the fact that by the doctrine of separation of powers, judiciary shall not interfere with the role of the legislature. As such, judges shall not interfere with the Parliament, which is the lawmaker of the country. Nonetheless, it is also a fact that as the legal system develops, so does the role of judges.Instead of sticking to their job as law finders and the feeder of justice, they now leavetheir legal imprint on the legal system. What is meant by legal imprint is that they leave alegacy, which is a new principle of law, developed by them when they decide upon acase. As a common law country, this legacy will then be applied by many others throughthe doctrine of judicial precedent and indirectly, to some extent, judges do make law.This judges-made law basically derived from the fact that Malaysia is a common lawcountry and as a democracy with a common law system, the judicial role is creative andnot passive. This had been held by Richard Malanjum, CJ (Sabah and Sarawak) in thecase of 
 PP v Kok Wah Kuan
, where in his dissenting judgment, his lordship outlined theways in which judges contribute to legal growth and one of them is through their creativity.To tackle the issue as to whether judges do make law, the various possibilities as to howthat could be can be analyzed. If judges make law, how do they manage to do so without being part of the legislature? To answer the question, one has to look at the diversemanifestations of creativity that judges have.2
 
Firstly, judges can make law by virtue of the doctrine of binding precedent. Under thisdoctrine is another important aspect of it known as the doctrine of stare decisis. Thedoctrine of stare decisis refers to several rules. One of them is that the inferior courts are bound by the superior court decisions in like cases. Next is that superior courts aregenerally bound by their own decisions. Thirdly, superior courts may have the power tooverrule principles of law laid down by inferior courts.It is to be understood that to follow past decisions is a natural and a necessary procedurein everyday affair. This is due to the fact that by doing so, one has the advantage of theaccumulated experience of the past plus the effort of having to think out a problem onemore each time it arises. In exercising the doctrine of judicial precedent, judges mayformulate a new precedent, overrule an earlier precedent, or for a creative judge, he mayinterpret the precedent differently.Apart from that, by being creative, judges may distinguish the cases on fact by decidingthat the facts of a present case are divergent to the binding decision. They may also rulethat the principle which they cite upon is not ratio decidendi but obiter dicta. In addition,they may make law by inducing from the concurring judgment a principle of law whichwas founded by the judges themselves.The next point on the manifestation of creativity is the fact that judges may uphold thesupremacy of the constitution by analyzing the constitutionality of parliamentary Actsand state enactments. Under the doctrine of judicial review, any laws passed by thelegislature are subjected to the review by the judiciary where judges may review the lawson the ground of rules of law and constitution supremacy.To illustrate this point, the case of 
 Dato’ Yap Peng v PP 
can be referred to. In this case,under the doctrine of judicial review, the court held that section 418A of the CriminalProcedure Code is unconstitutional and therefore, the court invalidated the provision prospectively. In other words, the law particularly section 418A is null and void after thedate of the judgment.3
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