DOCTRINE OF JUDICIAL PRECEDENT (STARE DECISIS)

Introduction Stare Per

decisis incurium
Binding /
persuasive
precedent
Obiter
dictum
Ratio
Res
decidendi
judicata

How does the

doctrine of
precedent
work?
 Legal
materials

cases
Statutes
Literary
sources
 Role of a judge in interpreting the statutes

Ascertain the meaning of

Accommodates the
a statutory provision in its
particular statute to the
application to a particular
existing body of law
circumstances
 Is a product of judicial
reasoning in deciding cases
in particular fact situations
 Judge is to apply the
general rule of principle to
the particular fact situation -
may at the first sight appear
to be a deductive process -
but the judge is also to “do
right” in that situation
 personalitie
s  Differ in
interpretation
Differences of
judges
 Differ in
Backgrounds
decision
Attitudes

 Decisions being remembered +

recorded
 System develops the reasonable
practice - treating like cases as alike
 Causes convenience + consistency
What is decision that binds?
Strictly speaking – the decision in a case, is the ct’s
actual determination of the dispute btwn the parties
(decision inter partes contained in the words eg
“judgment for the Plaintiff”).
That decision is important to the parties concerned
which binds them and only for them the determination
by the cts renders the matter res judicata (that decision
has settled the dispute once and for all).
What is a source of law which binds future cts in other
cases with similar facts is not the decision inter partes
but the ratio decidendi that binds the future cts.
PRECEDENT?
In arriving at a decision, judges do not decide
arbitrarily – bound to follow certain accepted
principles

Known as precedents
* A precedent is
commonly defined as “a
judgment / decision of a
court of law cited as an
authority for the legal
principle embodied in its
decision”.
Doctrine of Judicial Precedent works in two ways:

Horizontally : A court is bound by

* its own previous decisions
* the decisions of its predecessor
* the decision of courts of co-ordinate
jurisdiction.
Vertically: the superior courts bind all
courts subordinate to it,
 A binding precedent
means when determining a dispute before the courts, judges will follow what
their predecessors had decided earlier in a similar situation – stare decisis.

A persuasive precedent
refers to a situation in which a court has the option either to follow a case as
precedent / not.
Eg; obiter dicta, decisions of courts which are inferior, judgment of foreign
court.
 How does the doctrine of precedent work?

Case being brought to the court

Decided by presiding
Establish the fact
judge

At this stage, the doctrine of precedent will control the judge’s

decision
Origin of precedent Contents of precedent
 Origin of precedent
-if originate frm ct of appropriate rank Binding
Contents of the precedent
-ratio decidendi
in the same hierarchy
precedent
 Stare decisis
 It means to stand by decided matters/stand by
precedent and not to disturb the settled points

 In cases where the material facts are the same,

a court must follow the prior decisions of a
higher ct

 Once the facts are set – judges must follow

the principle and use it in future cases of
similar facts

 It is a common law doctrine under which

judges are obliged to follow the precedents
established in the prior decisions

 Why is it important to our system of law?

If not – judges decide based on own logic - no
certainty in legal system
Rules in the stare decisis
(1) decisions of the superior cts bind the lower cts;
(2) certain court is bound by its own decisions;
(3) the court is not bound by the foreign ct’s decisions.
 Also known as the essential ruling of law
 It is a ruling expressly or impliedly given by a
judge which is sufficient to settle a point of law
put in issue by the parties’ arguments in a case
 A point on which a ruling was necessary to his Ratio decidendi
or her justification of the decisions in the case
 The rest of the judgment is the obiter dicta
(incidental comments)
 Judge does not have to follow a precedent if
they can distinguish the facts of the earlier cases
from their own
 The ratio may / may not be explicitly stated by
the ct.
 Obiter dictum (s) /
dicta (p)
 Not part of the ratio Obiter dictum

 Theory: ratio is
distinct from
dictum
 Practice: very
difficult to
 In contrast with ratio decidendi:

 Obiter dictum is a mere saying ‘by the way’ which is not

binding upon future courts though it may be respected
according to the reputation of the judge, the eminence of the
court and the circumstances in which to be pronounced

 highly persuasive authority especially if it originates from a

higher ct

 Not binding because it was probably made without a full

consideration of the cases on the point and that if very broad
in its terms, it was probably made without a full
consideration of all consequences that may follow from it.
 Example

Diarrhea/illness caused by Dermatitis/skin problems Financial loss

decomposed snail caused by chemicals caused by careless advice

Applying the legal principle as in Whether the 1st case

Person successfully sued
the first case - similarities in the would be the precedent to
manufacturer for negligent in
material facts – negligence in the 3rd case?
manufacturing of product
manufacturing of product –
e/though the parties & goods are
different
 Continue….
There is a common element justifying the
application of the same rule that is the ratio
It may be stated as follows:
- A manufacturer of products owes a duty to the
consumer to take reasonable care in the
manufacture of products. If a consumer is injured
as a result of the negligent act of the manufacturer,
the latter is liable.

19
 Continue….
• Negligently leaving a snail in a bottle of beer and
causing injury to a woman has now developed into
‘negligently performing any act on which some
person relies and suffers loss or damages as a
result.’
• Precedents, once established, retain their authority
no matter how old they are unless they are
overruled by a higher court in a subsequent case.

20
 Relevant only to the
case decided by the
ct and no binding effect
for any future case

Being the order of the ct,

Known as the ratio is binding only on the concerned
decidendi + parties +
has a binding effect for no general binding authority
future case
Advantages and disadvantages of judicial
precedent
Advantages
System develops the reasonable
practice – convenience, consistency ,
certainty
Respect + preserve the court hierarchy
It is easy for the judge to decide based
on the existing rules and principles
rather to formulate a new rule /
principle – to avoid waste of judicial
effort and time rethinking solutions to
similar problems previously settled and
to avoid arbitrariness .
Disadvantages
Judges are tighten up by the doctrine +
not really free to decide for the case
except in very exceptional
circumstances
The law develops less as the old law
and principle prevail / rigidity of law
It is sometimes difficult to distinguish
whether a particular statement in a
judgment is ratio or dicta.
Per incuriam
Literally means: through want of care
A decision is made per incuriam when it is given in
ignorance / forgetfulness of a relevant legislative
provision / binding precedent and that ignorance /
forgetfulness led to faulty reasoning.
Res judicata
Literally "a matter judged", res judicata is the principle
that a matter may not, generally, be re-litigated once it
has been judged on the merits.
Res judicata encompasses limits on both the claims
and the issues that may be raised in subsequent
proceedings.
Acquitted / discharged not amounting to acquittal
(DNAA)?
Article 7 (2) FC – Protection against repeated trials
Operation of the doctrine of stare decisis in
Malaysia
At the time of independence in 1957 – there existed three-tier structure of the
superior cts:
 Privy Council (apex ct)
 Federal Ct
 High Ct

At the end of 1984 – final abolition of appeals to the Privy Council

In 1985, the three-tier structure was reduced to two-tier structure:

 Supreme Ct
 High Ct

In 1994 – the most recent reorganization – the three-tier structure was reinstated:
 Federal Ct
 Court of Appeal
 High Ct
Vertical operation
The Privy Council (PC) was the highest tribunal of
appeal for Malaysia until 31/12/1984
When the PC was at the apex of the Malaysian judicial
hierarchy, its decision were binding on Malaysian cts
in 2 circumstances:
(1) where the decision was in a case on appeal from
Malaysia; and
(2) 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 (pari materia)
Wong See Leng v Saraswathy Amal (1954)
20 MLJ 141
Respondent’s counsel argued that the COA of the
Federation of Malaya was bound by its own prior
decision in Yaacob B. Lebai Jusoh v Hamisah Bt Saad
(1950) 16 MLJ 255.
The COA rejected tht submission because that prior
decision was contrary to the Privy Council decision in
Haji Abdul Rahman & Anor v Mohamed Hassan
[1917] AC 209.
The judgment of the PC is binding
Khalid Panjang & Ors v PP (No 2) [1964]
30 MLJ 108
A PC decision in an appeal from another country was
binding on courts in Malaysia, where the statutory
provision in point was in pari materia with a statutory
provision in Malaysia.
The PC decisions are still continue to be binding on all
Malaysian cts below the apex court after the abolition
of appeals to it.
This is because when the PC delivered judgment in
those circumstances, it was declaring the law as it
applied in Malaysia.
Its decisions, having become part of law and remain so
until changed by the competent authority – the current
apex ct / Parliament in Malaysia – Art. 162 FC
Status of decisions of predecessor courts of
the present Federal ct
 The decisions of predecessor courts are binding and continue to
be binding until overruled by the present Fed Ct
 Anchorage Mall Sdn Bhd v Irama Team (M) Sdn Bhd & Anor
[2001] 2 MLJ 520
 In this case the Defendant’s counsel urged ct not to follow the
Supreme Ct decision of Alor Janggus Soon Seng Trading Sdn Bhd
& Ors v Sey Hoe Sdn Bhd & Ors [1995] 1 MLJ 241, on the
ground that what was said in that case was not the ratio.
 The ct rejected the Defendant’s counsel submission by saying that
even if what was said by the Supreme Ct in Alor Janggus’s case
was merely obiter, being a judicial pronouncement emanating
from the highest ct in this country, it deserves the utmost respect +
should be followed as a guide as faithfully as possible.
Horizontal operation
 Pre 1985
 (1) Privy Council
 The PC stood at the apex of the Malaysian judicial hierarchy
until 31/12/1984, has never considered itself bound by its
own decision. H/ever, the PC rarely departs from its own
precedents. (Read & Ors v the Bishop of Lincoln) [1892] AC
644
 (2) Federal Ct
 Fed Ct was established on 16 / 9/ 1963
 It was the end product of a series of reorganizations of the
judicial systems of three territories – Federation of Malaya,
Singapore + Borneo
Q: Was the Fed Ct bound by the precedents
of all these courts?
Judicial guidance exists shows that the Fed Ct
regarded itself bound
China Insurance Co Ltd v Loong Moh Co Ltd (1964)
30 MLJ 307
Involved decision of the Federal Court in an appeal
from Singapore when Singapore was part of Malaysia.
Court held that the court was bound by the decision of
the COA in the Strait Settlements.
1985-1994
Supreme Ct
1st January 1985 – Federal Ct was renamed the
Supreme Ct
Q: was the Supreme Ct the successor to, and as such
bound by the practice and precedents of, the Federal Ct
(1963 FCt), a ct it superseded?
Government of Malaysia & UEM v Lim Kit Siang
[1988] 2 MLJ 12
The Supreme Ct did not consider itself bound by
decisions of the Federal Ct.
Post 1994
Fed Ct
Is the Fed Ct (present apex ct), the successor to the
Supreme Ct, bound by the practice and precedents of the
Supreme Ct?
Civil matters: Fed Ct does not regard itself bound by
decisions of the Supreme Ct
Malaysian National Insurance Sdn Bhd v Lim Tiok
[1997] 2 MLJ 165
Criminal matters: Fed Ct holds itself bound by decisions
of the Supreme Ct
Tan Boon Kean v PP [1995] 3 MLJ 514
Is the Fed Ct bound by its own precedents?
 Criminal matters: The present Fed Ct is not bound by its own
previous decisions.
 Dalip Bhagwan Singh v PP [1998] 1 MLJ 1
 Arulpragasan a/l Sandaraju v PP [1997] 1 MLJ 1
 Civil matters: The Ct is not bound by its own previous
decisions
 Koperasi Rakyat Sdn Bhd v Harta Empat Sdn Bhd [2000] 2
AMR 2311
 *** the practice of the present Fed Ct in civil matters is the
same as in criminal matters (while treating previous
decisions as normally binding) the Fed Ct will depart from a
previous decision when it appears right to do so.
(2) COA
Q: Is the COA bound by its own precedents?
Kesultanan Pahang v Sathask Realty Sdn Bhd [1997] 2
MLJ 701
The COA is bound by its own decision
 (3) High Court
 Sundralingam v Ramanathan Chettiar [1967] 2 MLJ 211
 The Fed Ct held that one High Court judge does not bind another High
Court judge.
 In practice, Malaysian HCt judges have acted on assumption tt one HCt
judge (whether exercising original/appellate jurisdiction) is not bound
by a decision made by another (whether exercising original/appellate
jurisdiction).
 Joginder Singh v PP [1984] 2 MLJ 133,
 The HCt (exercising appellate jurisdiction) held tt it was not bound to
follow a decision of the HCt in an appeal presided over by three judges
in the case of Hassan B. Ishak v PP (1948-9) MLJ Supp 179

 ****This practice continues unchanged till today.