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COURSE CODE: LAW 434

GROUP: LWB01B

FULL NAME: WAN AISYAH RAIHANA BINTI MEOR

AZMAN

MATRIC NO: 2020498896

SUBMISSION DATE: 19 DECEMBER 2020

1B, Wan Aisyah Raihana Binti Meor Azman

The doctrine of stare decisis is based on a Latin phrase which means to stand by what
has been decided. It means that when the material facts of the cases are similar, a court must
follow the prior decisions of a higher court and for some court, follow its own decision and the
decisions of the court of the same level whether past or present, in the same hierarchy. The
decision that is binding for other courts is the legal principles underlying the decisions which
is the ratio decidendi of the case. In common law countries, the decisions made by the superior
courts are the unwritten source of law of the country as it forms a binding precedent where
other courts is bound to follow its decision. This is to promote certainty of the law and to avoid
the waste of judicial effort in determining the same problems which have already been decided.
However, there are also circumstances where this doctrine is not strictly applied especially by
the superior courts as they may overrule their own previous decision. In applying the doctrine
of stare decisis, there are two ways of its operation which are the vertical operation and
horizontal operation.

The vertical operation is a straightforward application of stare decisis, where lower

courts is bound to follow the decisions made by higher courts. The Federal court’s decision is
binding by all courts and the court of appeal must follow the decisions of the Federal court and
its decision is binding by lower courts. Meanwhile, the High Court must follow the decisions
of both the Federal Court and the court of appeal and the subordinate courts which consist of
the magistrate courts and the session courts, must follow the decision made by the superior
courts and their decision does not form a binding precedent. Therefore, doctrine of stare decisis
requires each courts in the hierarchy to follow all the decisions made by higher courts to the
extent of even if the decision was wrongly decided or was made per incuriam1, it is not an
excuse for the lower court to not follow the decision. For example, in Harris Solid State (M)
Sdn Bhd & Ors v Bruno Gentil s/o Pereira2, the appellants claimed that the court of appeal in
this case should not follow the majority decision in the Federal Court of Rama Chandran v The
Industrial Court of Malaysia & Anor3 as the decision was wrongly made. The court rejected
the claim and held, the court is bound to follow and apply the law in Rama Chandran even if it
suffers from any infirmity as it is the decision of the apex court and constitutes a binding
precedent. When there are two conflicting decisions in the court of Appeal, lower court may
choose to follow either the earlier decisions or later decisions as dates does not matter. But if

1
Literally translated as "through lack of care", refers to a judgment of a court which has been decided without
reference to a statutory provision or earlier judgment which would have been relevant.
2
[1996] 3 MLJ 489
3
[1997] 1 MLJ 145

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1B, Wan Aisyah Raihana Binti Meor Azman

there is a two conflicting decisions in the Federal Court, the latest decisions will prevail and all
courts must follow its latest decisions. This was clearly provided in Dalip Bhagwan Sigh v
Public Prosecutor4, where the court held, if there is a two conflicting decisions in the higher
court, and the later decision does not overrule the earlier decision, a lower court may choose
which one to follow based on which is more convincing. This principle was also applied in the
High Court of Datuk Tan Leng Tek v Sarjana Sdn Bhd & Ors5 where the court followed the
latest decision between two conflicting Federal Court decisions and treated the earlier decision
as not binding as the principle was believed to be correct even without justification. Therefore,
it can be seen that vertical operation applies the strict application of stare decisis as the lower
courts especially the subordinate courts may lost their discretionary powers in making
decisions since they are bound to follow the decisions in higher court when the facts are similar,
even if it is made wrongfully or per incuriam.

However, in horizontal operation where some court is bound by their own decisions
and the decision made by the court in the same level whether in past or present, the application
of stare decisis is much more complicated compared to the previous operation. This is because
in Malaysia, the hierarchy of the court have experienced several reorganisation due to the
constitutional and political amendments. This can be proven through the first issue which is
whether the federal court is bound by the supreme court, the previous apex court of the country.
The decision of the Supreme Court is not consider as bound by the Federal Court when it relates
to civil matters. This can be illustrated through Malaysian National Insurance Sdn Bhd v Lim
Tiok6 concerning whether the supreme court’s decision was wrong and should be overruled by
the Federal Court. The Federal court of this case overruled the decision in the Supreme Court
and held that the supreme court’s decision was wrongfully decided and should not be followed.
This was based on the criteria provided in Food Corporation of India v Antclizo Shipping
Corporation7 where the house of lords stated that the court can depart from such decisions
under two conditions where the departure from previous decision was necessary to do so and
also by overruling the decision, it would be more reasonable to solve the rising dispute. Thus,
in civil matters the Federal court may overrule the decision of the Supreme court and therefore,
doctrine of stare decisis is not strictly applied. However, in criminal matters, the federal court
does consider themselves to be bound by the supreme court’s decision. This can be seen in Tan

4
[1998] 1 MLJ 1, 13, 14
5
[1997] 4 MLJ 329, 347
6
[1987] 1 MLJ 217
7
[1998] 2 All ER 513

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1B, Wan Aisyah Raihana Binti Meor Azman

Boon Kean v Public Prosecutor8 where the Federal court held itself unanimously bound by the
supreme court decision. this was also agreed by Edgar Joseph Jr FCJ, in Arulpragasan al/
Sandaraju v Public Prosecutor9, that the Federal Court is bound by the decision of the Supreme
court.

Furthermore, in answering the second issue of whether the Federal court is bound by
its own decision, the answer is clearly provided in Dalip Bhagwan Sigh v Public Prosecutor10
where Peh Swee Chin FCJ stated that the Federal Court may cautiously depart from its own
decision when the earlier decision was wrongfully made, or was made unclear or unfair or
unsuitable with modern conditions. An example to illustrate this is through Arulpragasan al/
Sandaju where the Federal Court refused to follow its own decision in Tan Boon Kean as there
was a misunderstanding between the obiter and the ratio of the supreme court decision in Khoo
Hi Chiang v Public Prosecutor11. However, Peh Swee Chin FCJ had also also suggested that
the Federal Court should not overrule its own previous decision when it is deemed to be right,
considering that a lot of cases have put reliance on the previous decision. This was also applied
in Tunde Apatira & Ors v Public Prosecutor12 where the Federal Court rejected the
prosecution’s submission, that a newly decided case of the Federal court was wrongly decided
and should not be followed, since it would put the law in state of uncertainty if they depart
from the court’s recent decision. Besides that, in Koperasi Rakyat Sdn Bhd v Harta Empat Sdn
Bhd13, the court also held that the Federal Court may depart from its own previous decision
when it appears right to do so while treating the previous decision as normally binding for both
criminal and civil matters. Therefore, it clearly shows that the Federal Court have not lost their
discretionary power in making decisions as they may overrule their previous decision when it
appears right to do so. Therefore, the doctrine of stare decisis is not strictly applied.

Moreover, in The Court of Appeal, the vertical operation of doctrine of stare decisis is
applied as the court is bound by its own decision. This can be illustrated in Kesultanan Pahang
v Sathask Realty Sdn Bhd14 where the council’s appellant urged the court to reject its earlier
decision in Syarikat Kenderaan Sdn Bhd v Transport Workers Union 15 which was claimed to

8
[1995] 3 MLJ 514
9
[1997] 1 MLJ 1
10
[1998] 1 MLJ 1, 14
11
[1994] 1 MLJ 265
12
[2001] 1 MLJ 259
13
[2000] 2 AMR 2311
14
[1997 2 MLJ 701
15
[1995] 2 MLJ 317

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1B, Wan Aisyah Raihana Binti Meor Azman

be wrong as it fails to follow the Privy C ouncils decision in South East Asia Fire Bricks Sdn
Bhd v Non-Metallic Mineral Products Manufacterur Employees Union & Ors16. In this case,
Abdul Malek Ahmad CJA rejected the claim by stating the court is bound by its own decision.
In fact, this statement was also based on the dictum made in the Federal Court of Kumpulan
Perangsang Selangor Bhd v Zaid bin Haji Mohd Noh, by Gopal Sri Ram JCA where it stated
that the Federal Court is bound by its own decision and added that similarly, the court of appeal
is also bound by its own decision. However, there are exceptions to the general application of
the doctrine of stare decisis in the court of appeal which have been clearly provided in Young
v Bristol Aeroplane Co Ltd17. The court held that in general, the Court of Appeal is bound by
its own decision but may depart from its own previous decision under three exceptions. Firstly,
where there are two conflicting decision, the court is bound to decide which one to follow and
the other decision is deemed to be overruled. Secondly, although not expressly, the court is
required to overrule its own decision when it is believed that the previous decision is
inconsistent with the House of Lords. Thirdly, when the previous decision was believed to have
been made per incuriam, the court is not bound to follow. Therefore, this clearly shows that the
Court of Appeal also did not entirely apply the doctrine of stare decisis as there are several
circumstances which allows them to depart from their own previous decision.

Besides that, the vertical operation in the High Court of Malaya and also the High Court
of Sabah and Sarawak, also shows the application of the doctrine of stare decisis as it is bound
to follow the decision of the Federal Court and the Court of Appeal. However, the court is not
bound by the decisions made by other High Courts judges. Based on Sundralingam v
Ramanathan Chettiar18, the court held that one High Court judge is not bound to follow the
decision made by another High Court judge. Azmi CJ also commented in the appeal of this
case that the High court may choose to not follow the decision of other high court judges
although, they may not overrule them. This was also agreed by Ong Hock Thye FJ by adding
that judges in Malaysia have respectfully agreed to differ from other High Court decision on
several occasions. For example, in Ng Hoi Cheu & Anor v Public Prosecutor, the judge in this
case which is Chang Min Tat J did not follow the decision made by Smith J in Wong Heng Fatt

16
[1981] AC 363
17
[1944] 1 KB 718
18
[1967] 2 MLJ 211

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1B, Wan Aisyah Raihana Binti Meor Azman

v Public Prosecutor19. Thus, the High Court also applies the doctrine of stare decisis but may
also depart from the decisions made by other High Court Judges.

In conclusion, while the doctrine of stare decisis is commonly applied in the common
law countries until today, it does not mean that the judges have lost all of their discretionary
powers in making judicial decisions. This is because the court, specifically the superior courts,
may still cautiously depart from their own judicial precedent and decide a newly underlying
principle when the previous decision is perceived to be wrong, unworkable or in order to adapt
with new societal changes. Thus, it is true that the doctrine of stare decisis limits the power of
the judiciary in making decisions. However, some courts may still depart from their own
decisions and make new decisions when it is necessary to do so. By allowing the judges to
overrule their previous decision in certain circumstances, it can also reduce the rigidity of the
law instead of continuing to follow incorrect precedents.

References
English Law and Doctrine Called Binding Precedent. (2019, August 12). Retrieved from Law
Teacher: https://www.lawteacher.net/free-law-essays/constitutional-law/english-law-
and-doctrine-called-binding-precedent-constitutional-law-essay.php

Hamzah, W. A. (2009). A First Look At The Malaysian Legal System. Selangor: Oxford Fajar
Sdn Bhd.

Thapliyal, A. (2016, August 5). India: The Doctrine of Per Incuriam. Retrieved from Sigh &
Associates: https://www.mondaq.com/india/civil-law/516732/the-doctrine-of-per-
incuriam

19
(1959) 25 MLJ 20