LAW 434 H-A3-Siti Aishah Binti Masrur PDF

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LAW 434: MALAYSIAN LEGAL SYSTEMASSIGNMENT 3Group: LAWB01HLecturer: Professor Madya Dr Tunku Intan Mainura Bt Tunku MakmarQuestion: The application of the doctrine of stare decisis means that judges have lost their discretionary powers in making decisions. Discuss how far this statement is truePrepar...

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LAW 434: MALAYSIAN LEGAL SYSTEM

ASSIGNMENT 3

Group: LAWB01H

Lecturer: Professor Madya Dr Tunku Intan Mainura Bt Tunku Makmar

Question: The application of the doctrine of stare decisis means that judges have lost their discretionary powers in making decisions. Discuss how far this statement is true

Prepared by: No

Name

Matrics No.

Siti Aishah Binti Masrur

2020604786

. 1.

The doctrine of stare decisis is where the law is to be found both in legislation and in cases decided by the courts. The courts here regard to the superior courts such as the Federal Court, Court of Appeal and High Court. The decision made by the court is bound to the decision of the previous court in regards to the same facts to determine ratio decidendi. For instance, the legal principles underlying the case. The doctrine of stare decisis or also known as binding judicial precedent is the rigid application of precedents in the common law system. Stare decisis literally is defined as to remain by what has been decided where it requires the courts not only to follow precedents but courts are bound to do so regardless of the disagreement to follow it. The doctrine of stare decisis defines a court must follow the prior decisions of a higher court and in some cases, its own prior decisions including prior decisions of a court of the same level. Barwick CJ in Favelle Mort Ltd v Murray [1975] 8 ALR 649, 658 and Viro v R [1978] 18 ALR 257, 260 where it held the appeal on higher court can reverse the lower court’s decision if the lower court chooses to unfollow that principle.

Judicial precedent is interpreted as the judgement of the court which referred to an authority for the legal essence in decisions’ construction. The definition of the doctrine is interpreted in a case of Kerajaan Malaysia & Ors v Teh Cai Huat [2012] 3 MLJ 149 where the Federal Court interprets judicial precedent as judicial decision which provides a rule for future decision in similar cases. A judicial precedent of authority is a legal case where it lays out the concept or rule that a court or other judicial body acquires in making decisions in upcoming cases with similar facts. A judicial decision that must be applied or followed is known as binding precedent. The doctrine of judicial precedent is the foundational principle of common law where it is a structure of reasoning and decision-making which is established by case law. Judicial precedent not only has compelling authority but must also be followed when the same situations have occurred. Chang Min Tat FJ in PP v Datuk Tan Cheng Swee & Anor [1980] 2 MLJ 276, 277 where he affirmed that the doctrine of stare decisis which unreservedly accepted by Federal Court and supposedly the High Court and other inferior courts must be obliged coherently within the doctrine. Any principle announced by a higher court must be followed in the latter cases. The court is bound within the prescribed limit by prior decision of superior courts. The judges are required to conform with the institution of judicial precedent established by prior decision. The judicial precedent involves an application of principle of stare decisis. The inferior courts are bound by the principal placed by the superior court in earlier cases. Thus, the doctrine of judicial precedent is definitely depriving the discretionary of a judge in applying the doctrine of stare decisis regardless of

the disagreement as they are bound to follow although the decision is deemed to be unjustifiable. The doctrine of judicial precedent has two approaches of operation which are the vertical operation and horizontal operation. These two approaches clearly show the judges of the court are either to be bound by the prior decision of higher court or their own prior court of the same level in making and determining the decisions. This technically signifies how judges cannot carelessly construct a decision without applying the principle of judicial precedents

Firstly, in vertical operation of doctrine of judicial precedent, the court must follow and bound to follow the decision of higher court although the decision is deemed to be wrong or made per incuriam which means insufficient of law along with precedent provided by oblivion or ignorance of the applicable statutory provision would eventually result to flawed reasoning. In Jason Chan Huan Seng & Ors v Public Prosecutor [2014] 6 AMR 189 where the Court of Appeal in this case held that it is very crucial to hold in mind that the doctrine of stare decisis dictate in a matter of general rule of great important where the Court of Appeal is bound to follow a decision of the Federal Court and its own previous decision. It is also illustrated in Harris Solid State (M) Sdn Bhd & Ors v Bruno Gentil s/o Pereira [1996] 3 MLJ 489, the counsel for appellants contended that majority decision of the Federal Court in Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 154 should not be followed as it was wrong. The learned judge dismissed the appellants’ argument by alleging that the court is bound to follow and apply the law in the respective case although it is of infirmity as the decision of the apex court constitutes binding precedent to all the lower courts. Moreover, in Co-operative Central Bank Ltd v Feyen Development Sdn Bhd [1977] 2 MLJ 829, 835, where the learned judge acknowledged that the Court of Appeal is not open to disregard a judgement of the Federal Court if it is deemed to be per incuriam. The judge affirmed that the Court of Appeal ought to follow the decision of the House of Lords and it is highly undesirable to ignore the decision of the House of Lords.

Secondly, vertical operation of doctrine of judicial precedent disallows the court depart from the decision of higher court unless there are two conflicting decisions which allows the court to make an option between those. The lower courts must follow the later decision when two confiding decisions exist in Federal Court since it reflects the current state of law and it overrules the earlier decisions. This principle is derived from the case of Dalip

Baghwan Singh v Public Prosecutor [1998] 1 MLJ 1, 13. Moreover, the principle can also be seen in Datuk Tan Leng Teck v Sarjana Sdn Bhd & Ors [1997] 4 MLJ 329, 347 where the Federal Court approved an earlier decision in that case where it chose to follow the later decision instead of earlier decision when two confiding decisions of higher courts have existed. The court regarded that the earlier was not binding as the legal principles of the law were assumed to be correct without argument.

Thirdly, horizontal rule of doctrine of judicial precedent where some courts are bound by their own prior decisions and prior decisions of a court of the same level regardless in past or present time. This is illustrated in Dato Tan Heng Chew v Tan Kim Hor [2006] 2 MLJ 239 where the Federal court held that judicial hierarchy must be remarked in the scrutiny of conclusiveness and certitude in the law along with the well-ordered development of legal rule together with the regulation of the court and lawyers in regards of their affairs. Consequently, failure to scrutinise judicial precedent would cause mayhem and misinterpretation of the judicial system. In Malaysia National Insurance v Lim Tiok [1997] 2 MLJ 165 where the Federal Court overturned the Supreme Court’s decision in Tan Chik bin Ibrahim v Safety Life and General Insurance [1987] 1 MLJ 217. The case above signifies how the Federal Court is not bound by the decisions of the Supreme Court in civil matters. However, the Federal Court regards itself to be bound by decisions of the Supreme Court in criminal matters as illustrated in Tan Boon Keat v PP [1995] 3 MLJ 514, [1995] 3 MLJ 514 where the Federal Court without exception regarded itself to be binding by the Supreme Court decision. Furthermore, Edgar Joseph Jr. F.C.J in Arulpragasan a/l Sandaraju v PP [1997] 1 MLJ 1 where he upheld that the decision of the Supreme Court binds the Federal Court. The Federal Court views itself to normally be bound by its own decision in either civil or criminal matters as illustrated in case of Koperasi Rakyat v Harta Empat [2000] 2 AMR 2311 where the application of Federal Court in civil jurisdiction is similar to criminal jurisdiction where it is bound to the prior decision unless it is ought for the Federal have the right to depart from the previous decision. As well in a case of Tunde Apatria v Public Prosecutor [2001] 1 MLJ 259, where the submission of prosecution to disregard from an earlier decision is declined by the Federal Court. In Court of Appeal, as illustrated in Kesultanan Pahang v Sath ask Realty [1997] 2 MLJ 701 where the learned judge held that the Court of Appeal is bound by their own decision.

However, there are a few situations where the Judicial Precedent may not be applicable. First situation is where the court is not bound to follow the judicial decision when its own previous decisions were conflicted. The Court of Appeal must decide which to follow and which to decline regardless of whether the confiding decision is in earlier or the latter case. The Court of Appeal may determine by looking which decision of the case is more convincing Second situation is where the Court of Appeal is allowed to unfollow a decision of its own if it is contradicted with Federal Court’s decision despite whether it has been expressly overruled by Federal Court or not. Third situation is where the Court of Appeal is not required to follow the decision of its own if it is given per incuriam. The meaning of per incuriam is a Latin legal maxim which means through insufficient of care. The decision with insufficient care shall not be followed as precedent. This situation usually arises due to the action of the court which is based on ignorance and forgetfulness on previous decisions of its own. In Young v Bristol Aeroplane Company Ltd [1945] 1 KB where these exceptions to Judicial Precedent were derived. The court in this case held that the Court of Appeal may depart from its own previous decision if it affirmed that the principle of law has been misapplied in the previous decision. Other than that, in High Court where it is stipulated in Sundralingam v Ramanathan Chettiar [1967] 2 MLJ 211 that one High Court judge does not bind to another Court judge. Moreover, in Joginder Singh v PP [1984] 214 J 133 where 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. In conclusion, the doctrine of stare decisis or binding judicial precedent is known as the strict and rigid application as it holds the court to be bound to follow the precedents although the judge disagrees with the precedent. In accordance with Hill v Aldershot Corpn [1993] CA, the learned judge noted that the judge was bound to determine concurrently with the precedent which has been established in the law even though the result would be in absurdity. However, the judicial precedent may not be applied in regards to the established exceptions where it allows the courts to depart from the application of judicial precedent.

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