Introduction to Law – Judicial Decision.

Student Handbook m/s 77

Quest. 1 – Why is referring to material facts important in judicial decision?

Judicial decision is a decision made by a judge in the matter that is before him. A
decision by the court is an outcome from a determination of the dispute between parties.
However, the law and that can be extended to another case is not the decision itself but the
ratio decidendi which is the legal principle derived from the decision. The doctrine of judicial
precedent is based on stare decisis i.e. to stand by what has been decided. Technically means
cases where the material facts are the same, a court must follow the prior decision of a higher
court, and its own prior decisions and prior decision of a court of the same level. Therefore,
to determine the law or legal principle for a later case, the judge need to first identify the
material facts and only then extract the ratio decidendi1 from the earlier case decision which
has the same or alike material facts and apply it to the latter case.

Quest. 2 – Both High Courts of Malaya and Sabah and Sarawak can refer to one and
another under the concept of stare decisis. Elaborate.

The doctrine of judicial precedent in Malaysia is based on stare decisis i.e. to stand by
what has been decided. Technically means cases where the material facts are the same, a
court must follow the prior decision of a higher court, and its own prior decisions and prior
decision of a court of the same level. The High Courts of Malaya and Sabah and Sarawak are
bound by the prior decision of the Court of Appeal and the Federal Court which are the
higher court in court hierarchy in Malaysia. In other words, the Federal Court and the Court
of Appeal bind High Court of Malaya and Sabah and Sarawak.

Besides that, based on stare decisis doctrine, in the cases of some courts, it may
bound by the prior decision of a court at the same level, whether past or present. The High
Courts of Malaya and Sabah and Sarawak are at the same level in Malaysians' courts
hierarchy. However, in convention, Malaysian High Courts judges have acted on assumption
that one High Court Judge is not bound by decision made by another High Court Judge. But
someway somehow, the decision of another High Court might be persuasive precedent for
another High Court. The judge is not obliged to follow, but if the judge finds the relevance in
reaching a judgement in a case, he can use that precedent. Those decision are not binding but
the council may persuade the judge to follow if he accepts the legal principle.

1
Ratio Decidendi is the reason for the decision.
Introduction to Law – Judicial Decision. Student Handbook m/s 77

Quest. 3 – Explain the operation of the doctrine of judicial precedent in Malaysia.

The doctrine of judicial precedent in Malaysia operates in two ways which vertical
operation and horizontal operation.

Vertical operation provides that a court is bound by the prior decisions of all courts
higher than itself in the same hierarchy. The higher courts bind the lower courts and the lower
courts are bound to follow the higher courts decisions. As in Malaysian context, the Federal
Court is the highest court in Malaysia, so the decisions made by the court will bind all courts
to follow its decision. The Court of Appeal bound to follow the decision by the Federal
Court, but the decisions made in the Court of Appeal bind all High Courts in Malaya and
Sabah and Sarawak. When there are conflict decisions by the higher courts in the Court of
Appeal, the lower courts may choose to follow either decision whether earlier or latter
decision. But if there are conflict decisions in the Federal Court, all courts in Malaysia must
follow the latter decision as it represents the current state of the law.

How about the decisions made by the Privy Council? Is it still valid? The Privy
Council was the highest tribunal for Commonwealth countries. It was the highest tribunal of
appeal for Malaysia until 31st December 1984 before it was abolished and has been replaced
by the Supreme Court as the highest appellate court in Malaysia. After 31st December 1984,
only decisions made by the Privy Council which was an appeal from Malaysia are binding on
Malaysian courts. Because at the time the Privy Council decided the case, it acted as the apex
court of Malaysia. However, the Privy Council decision on appeal from other Commonwealth
countries after the date may be persuasive precedent and Malaysian courts are not bound to
follow the decisions.

On the other hand, horizontal operation involved the issue whether the court bind
itself or not. As for the Federal Court, it not bound to follow its own previous decision. It can
be seen from the convention of the Federal Court where it generally treats its own previous
decision as normally binding. However, it is their right for them to depart from a previous
decision made by them.

As for the Court of Appeal, it is a must for them to follow their own previous
decisions. However, in the practice of Malaysian High Court judges they've acted on the
assumption that one High Court Judge is not bound by another High Court decision.
However, the decision made by another High Court might be persuasive precedent and not
binding.
Introduction to Law – Judicial Decision. Student Handbook m/s 77

Quest. 4 – Define the following:

Term/Phrase Meaning
Doctrine of Stare Decisis. Cases where the material facts are the same, a court must
follow the prior decisions of a higher court, and (in the case
of some court) its own prior decisions and prior decisions of a
court of the same level.
Ratio Decidendi Principle of law on which does not form part of the decision.
It is the reason behind the decision.
Obiter Dictum Things stated in the course of a judgement which are not
necessary for the decision. It is something said by the way.
Judicial Precedent Judicial decision. The decision made by judges.
Material Facts Facts which lead to the decision.
Distinguishing A device used by judges in order to avoid the consequences
of an earlier inconvenient decision.
Original Precedent A precedent that creates and applies a new legal rule. A point
of law in a case that has never been decided before.
Overruling Overrule a decision made in an earlier case because previous
court did not correctly apply the law or latter court finds that
the rule of law in the previous ratio decidendi is no longer
desirable.
Persuasive Precedent A precedent which a judge is not obliged to follow but is if of
importance and relevance in reaching a judgement in a case,
as opposed to a binding precedent.
Reversing Overturning on appeal by a higher court, of the decision of
the court below (in the same case).
Binding Precedent A precedent or an existing law that courts are bound to
follow.
Per Incuriam A judgement of a court which has been decided without
reference to a statutory provision or earlier judgement which
would have been relevant.