Malaysian Legal System

LAW 434

LECTURE 4

Judicial Decisions

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Doctrine of Stare Decisis
• In Malaysia, the law is to be found not only in legislation, but also
in cases decided by the courts.
• The courts referred to are the superior courts, i.e. Federal Court,
the Court of Appeal and the High Courts.
• What is binding to future courts in other cases with similar facts is
the ratio decidendi (the reason for the decision), i.e. the legal
principle underlying the decision.
• The ratio may or may not be explicitly stated by the court; more
usually , it has to be extracted from the obiter dictum (which
translates as a remark in passing).

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• Dicta (plural) are remarks not strictly necessary to decide the actual
issue, for example, hypothetical examples and remarks concerning
broader principles of law which may not be directly in issue in the
instant case.
• Dicta, unlike rationes (plural), are not binding, but persuasive and
even become ratio in subsequent cases.
• The law derived solely from decisions of the courts is known as the
'common law', i.e. the term used in contradiction to statute law.
• The term case law is wider. It indudes decisions by the courts in
interpreting statutes.

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• The strict application of precedents in the common law system is
known as the doctrine of binding precedents or Stare decisis
(literally, to stand by what has been decided). This doctrine
requires courts not only to follow precedents but courts are bound
to do so, whether or not the judge in the subsequent case agrees
with the precedent in question.

• The doctrine of stare decisis means that in 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 courts) its own prior
decisions and prior decisions of a court of the same level (i.e. equal
or co-ordinate jurisdiction) whether past or present, in the same
hierarchy.

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• The doctrine of stare decisis, therefore, has a two-way operation:
1. Vertical (a court is bound by the prior decisions of a higher
court); and
2. Horizontal (some courts are bound by their own prior
decisions and prior decisions of a court of the same level,
whether past or present).

• The basic rationale for the observance of precedent is that a court

higher in the same hierarchy has laid down that principle as the
applicable law. If a lower court chooses not to follow that
principle, on appeal the higher court can correct

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Operation of the Doctrine in Malaysia

• The doctrine of stare decisis applies in Malaysia. The Malaysian practice of

the doctrine is based on the English practice.
Cases- Public Prosecutor v Datuk Tan Cheng Swee & Anor [1980]2 MLJ
277
Kumpulan Perangsang Selangor Bhd v Zaid bin Hj Mohd Noh
[1977]1 MLJ 789

Vertical Operation
• A court is bound by the prior decisions of all courts higher than itself in the
same hierarchy.
• Decisions of Federal Court bind all courts.
• The Court of Appeal is bound by decisions of the Federal Court, and its
decisions bind the two High Courts and the subordinate courts.
• The High Courts are bound by the decisions of the Federal Court and the
Court of Appeal, and their decisions bind the subordinate courts.
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• The courts are bound to follow the higher court's decisions even if it is
wrong or made per incuriam (Iiterally 'through want of care; a decision is
made per incuriam when it is given in ignorance or forgetfulness of the
relevant legislative provision or binding precedent and that ignorance or
forgetfulness led to faulty reasoning).
Co-operative Central Bank Ltd v Feyen Development Sdn Bhd [1977] 2
MLJ 829
• In Harris Solid State v Bruno Gentil s/o Pereira (1996) 3MLJ 489. counsel
for the appellants tried to argue before the Court of Appeal that the
majority decision of the Federal Court in Rama Chandran v The Industrial
Court of Malaysia(1997) 1 MLJ 145 was wrong and ought not be followed.
The Court of Appeal disagreed. 'Indeed. this court is bound to follow and
apply the law as stated by the majority in Rama Chandran, even if it
suffers from any infirmity. It is a decision of the apex court and constitutes
binding precedent.
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• While a court may not refuse to follow a decision of a higher court, it
may choose between two conflicting decisions:

• In the case of two conflicting decisions of the Court of Appeal, courts

lower in hierarchy may choose to follow either decision irrespective of
Whether it is the earlier or later decision.

• In the case of two conflicting decisions of the Federal Court, all

courts below must choose to follow the later decision.
Dhalip Bhagwan Singh v Public Prosecutor [1998]1 MLJ 1

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Status of Decisions of the Privy Council

• The Judicial Committee of the Privy Council originated from the

ancient Curia Regis (King’s Council) and the political body which
advises the English sovereign (the Cabinet). Today, the Privy Council
serves mainly as the final court of appeal for several Commonwealth
countries.
• The Privy Council was the highest tribunal of appeal for Malaysia until
31 December 1984. It has never considered itself bound by its own
decisions {Read v. Bishop Lincoln (1892) AC 644}. However the Privy
Council rarely departs from its own precedents.
• In theory, the final right of appeal lay to the YDPA who referred the
appeal to the Privy Council whose advise would then be given effect
to by the YDPA (the repealed Art131(1))

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• When the Privy Council was at the apex of the Malaysian judicial
hierarchy, its decisions were binding on Malaysian courts in two
circumstances:
- Where the decision was in a case on appeal from Malaysia; and
- Where the decision was in a case on appeal from another common
law country and the law in point was the same as in Malaysia.

• When the Privy Council decided an appeal from Malaysia, it.was

deciding as a Malaysian court. Its decision bound all Malaysian courts-
Wong See Leng v Saraswathy Amal (1954) MLJ 141
• When the Privy Council decided an appeal from another common law
country, it was deciding as the apex court of that country. Its decision
was merely persuasive, not binding, on courts in Malaysia.
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• However in Khalid bin Panjang v Public Prosecutor (1964) MLJ
108, the Federal Court held that the Privy Council decision in an
awed from mother country was binding on courts in Malaysia,
where the statutory provision in point was in pari materia
(translated as word for word the same) with a statutory provision
in Malaysia.
• The same principle applies in cases where the law in point,
including the common law issues, was the same as in Malaysia.
(Fatuma Binti Mohamed bin Salim Bakhshuwen v Mohamed bin
Salim Bakhshuwen (1952) AC 1

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• Appeals to the Privy Council from Malaysia were abolished in two
stages:

1. In constitutional and criminal matters with effect from

1 January 1978;

2. In civil matters with effect from 1 January 1985.

• Privy Council decisions in appeals from other common law

countries made after Malaysia's breakaway from the Privy Council
are not binding on Malaysian courts. They are merely persuasive.

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Horizontal Operation

Federal Court.
• Is it bound by the practice and precedents of the Supreme Court?
• In civil matters, the Federal Court does not regard itself bound by
decisions of the Supreme Court.
• In Malaysia National Insurance v Lim Tiok (1997) 2 MLJ 165, the
Federal Court overruled the decision of the Supreme Court in the case
of Tan Chik bin Ibrahim v Safety Life and General Insurance (1987) 1
MLJ 217.

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• In criminal matters, the Federal Court holds itself bound by
decisions of the Supreme Court.

• In Tan Boon Kean v P.P. (1995) 3MLJ 514, the Federal Court
unanimously held itself bound by the Supreme Court decision in
Khoo Hi Chiang v P.P. (1994) 1MLJ 265.

• Edgar Joseph Jr. F.C.J. in Arulpragasan a/l Sandaraju v P.P.(1997)

1MLJ 1, support the view that the Federal Court is bound by the
decisions of the Supreme Court.

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• Is the Federal Court bound by its own precedents?

• The practice of the Federal Court in civil matters is the same as in

criminal matters, i.e. while treating previous decisions as normally
binding, the Federal Court will depart from a previous decision when
it appears right to do so (Koperasi Rakyat v Harta Empat (2000)
2AMR 2311).

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Court of Appeal

• The Court of Appeal was established by the Constitution

(Amendment) Act 1994.

• Is the Court of Appeal bound by its own precedents?

• In Kesultanan Pahang v Sathask Realty (1997) 2MLJ 701, Abdul

Malek Ahmad J.CA stated that 'we are bound by our own decision.
• In Kumpulan Perangsang Selangor v Zaid bin Haji Mohd Noh (1997)
1MLJ 789, Gopal Sri Ram J.C.A. in the Federal Court stated: `...the
court of Appeal is bound by its own decisions’.

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• However, in Young v Bristol Aeroplane Co., Ltd. the court also stated
three circumstances in which earlier decision of the Court of Appeal
would not be regarded as binding:
• Where there are two conflicting decisions, the court may choose
which it will follow, the decision not followed being deemed to be
overruled.
• The court is bound to refuse to follow a decision of its own which,
though not expressly overruled, cannot stand with a later decision of
the House of Lords.
• The court is not bound to follow its decision of its own if that
decision was given per incuriam.

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High Courts
• Under Art. 121(1) of the Federal Constitution, there are two High
Courts of equal jurisdction and status, i.e. High Court (Malaya) and
High Court (Sabah and Sarawak).
• The Federal Court in Sundralingam v Ramanathan Chettiar (1967)
2MLJ 211 held that one High Court judge does not bind another High
Court judge.
• In practice, Malaysian High Court judges have acted on the
assumption that one High Court judge is not bound by a decision
made by another. In Ng Hoi Cheu v P.P.(1968) 1 MLJ 53. Chang Ming
Tat J. did not follow the decision of Smith J. in Wong Hang Fatt v
P.P.(1959) MLJ 20.
• In Joginder Singh v P.P.(1984) 214.J 133, the High Court held that it
was not bound to follow a decision of the High Court in Hassan bin
Isahak v PP. (1948-9) MLJ Supp.179
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Decisions from other Common Law Countries

• Decisions of courts outside the Malaysian judicial hierarchy are not

binding. They are only persuasive.
• Lord Scarman in the Privy Council case of Jamil bin Harun v Yang
Kamsiah (1984) 1MLJ 217 stated: 'Their Lordships do not doubt that
it is for the courts of Malaysia to decide, subject always to the statute
law of the Federation, whether to follow English case law. Modern
English authorities may be persuasive, but are not binding."

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• Malaysia has enacted legislation modelled on those of other common
law countries. For example, the Contracts Act 1950, the Penal Code,
the Criminal Procedure Code are based on those of India, while
National Land Code 1965 is based on that of South Australia.

• The status of decisions of courts of these and other common law

countries on points of law in pari materia with Malaysian law is
summarized in the words of Chang Min Tat F.C.J. in Director-General
of Inland Revenue v Kulim Rubber Plantations (1981) 1MLJ 214
wherein he referred to decisions ci courts in Australia, England, and
New Zealand Insofar as the decisions cf other courts in these and
other countries are concerned, we have always treated these
judgments as of only persuasive authority, but we have never lightly
treated them or refused to follow them, unless we can successfully
distinguish them or hold them as per incuriam. Other than for these
reasons, we should as a matter of judicial comify and for the orderly
development of law, pay due and proper attention to them.'
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Advantages of the Doctrine

The advantages of the doctrine of binding precedent:

• The law evolved in this manner is more practical, being the result of actual
disputes rather than hypothetical situations. It has evolved through actual
experience and not abstract theory. The law is also able to grow as the
needs of society alter.
• There is a degree of certainty and predictability in the law so that people
can plan their actions with a degree of confidence. Men of business will be
in a position to organize their affairs in such a fashion that they keep well
within the framework of the law. And members of the legal. profession will
be able to advise their clients with some degree of certainty as to what the
law is upon a particular subject mater. Certainty does not necessarily mean
rigidity to the extent that it completely stifles judicial discretion because
the actual working of the system provides avenues for courts to adapt the
law to ever changing societal circumstances.
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• It is possible for courts to get around an outdated decision through
the technique of distinguishing precedent and in the case of the
highest appellate court, declining to follow an earlier precedent on
the ground that it is no longer relevant to change circumstances.

• Of course, limit do exist as to the discretion exercisable. Judges

cannot altogether ignore some rule they do not like or they fell
outdated. They must justify their reasons for refusing to follow a
precedent and if they turned out to be wrong, their decisions may be
overturned on appeal. The system of review through appeals is a
necessary cheek on unrestrained exercise of discretion.

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Disadvantages of the System

• Once a hierarchy of binding precedent has been established a

certain amount of rigidity is introduced into the law. The judge was
bound to decide in accordance with the precedent even if the result
would be ridiculous - Scrutton LJ in Hill v Aldershot Corpn (1933)
CA
• In order to avoid rigidly applying a principle the courts are
sometimes keen to distinguish between a previous case and the
one before them. This leads to endless hair-splitting.
• It is sometimes said that the development of the law through new
precedents is too slow and too irregular. Legislator can think over a
whole field of law and provide in advance for new legal principles
and further provide for exceptions and definitions. Case law cannot
so readily do this.

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THE END…..

……THANK YOU
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