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Tutorial 4: DOCTRINE OF JUDICIAL PRECEDENTQUESTION 1“In Malaysia, the Federal Court and its forerunner. i. the Supreme Court, after all appeals to the Privy Council were abolished has never refused to depart from its own decision when it appeared right to do so: ... ... It is right that we in the Fe...

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Tutorial 4: DOCTRINE OF JUDICIAL PRECEDENT ! QUESTION 1 “In Malaysia, the Federal Court and its forerunner. i.e. the Supreme Court, after all appeals to the Privy Council were abolished has never refused to depart from its own decision when it appeared right to do so: ... ! ... It is right that we in the Federal Court should have this power to do so but it is suggested that it should be used very sparingly ... On the other hand, the power to so depart is indicated (subject to a concurrent consideration of the question of the consequence), when a former decision which is sought to be overruled is wrong, uncertain, unjust or outmoded or obsolete in the modern conditions.” ! - Peh Swee Chin F.C.J (as he then was) in Dalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1. ! With reference to the above statement, discuss the application of the doctrine of judicial precedent in Malaysia. (20 marks) ! QUESTION 4 “It is necessary to reaffirm the doctrine of stare decisis which Federal Court accepts unreservedly and which it expects the High Court and other inferior courts in a common law system such as ours to follow similarly...” - Chang Min Tat J in Public Prosecutor v. Datuk Tan Cheng Swee & Anor (1980) 2 MLJ 277. ! In light of the above, with reference to decided cases, explain the application of the doctrine of stare decisis in Malaysia. (20 marks)! # Judicial precedent also refers to the doctrine of stare decisis which means “to stand by things (previously) decided,”. The doctrine of stare decisis means that in cases where the material facts are the same, a court is bound to 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 whether the past or present, in the same hierarchy. Judicial precedent form part of the source of unwritten law in Malaysia. There is two-way operation of the doctrine which is vertical and horizontal.! # Firstly, the vertical way is which the inferior courts is bound by the decisions pf the higher court in the sam hierarchy. This means federal court decision bind all courts. In the case of Dalip Bagwan Singh v PP, the federal court judge stated that the doctrine of stare decisis dictates that, a court other than the highest court is obliged to follow the decisions of the courts at a higher or same level. The courts are bound to follow the higher court's

decisions even if it is wrong or made per incuriam. 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’. ! # However, there are exceptions that was made by the court of appeal where the decision need not to be followed if the decision made was per incuriam. when 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 unlike in the case of two confiding decisions of the Federal Court, all courts below must choose to follow the later decision. ! # For horizontal operation, the federal court is not bound to follow the decision in civil matters of the Supreme Court. Following the creation of a Federal court which replaced Supreme Court, Section 17 of the court of judicature acts 1995, in Malaysia, provided that any proceeding pending before the Supreme Court 1994, shall continue in the Federal court and the Federal court shall exercise all powers of the defunct Supreme Court. In the case of Malaysia National Insurance v Lim Tiok, which was to determine the extent of liability of insurers against their third party under compulsory insurance policy was a direct action brought by a third party. The Federal Court decided that the decision was wrongly decided and should not be followed. In effect, the Federal court of Malaysia over ruled a decision of the supreme court of Malaysia. However in criminal matters, it is bound by the decision of the Supreme Court. As in the case of Arulpragasan a/l Sandaraju v PP where the judge Edgar Joseph Jr. FCJ supports the view that the FC is bound by the decisions of the SC.! For COA, in the case of Kesultanan Pahang v Sathask Realty, the court states that ‘we are bound by our own decision’. Gopal Sri Ram JCA in the case of Kumpulan Peransang Selangor v Zaid bin Haji Mohd Noh where his lordship stated:”…the court of Appeal is bound by its own decision.”!

QUESTION 2 With reference to relevant authorities, discuss the application of the doctrine of judicial precedent in Malaysia. Consider also the circumstances when a court may depart from a previous decision. (20 marks) ! Court of Appeal! Young v Bristol Aeroplance Co. Ltd! - 3 circumstances! - 1. If the decision given was per incuriam! - 2. Faced with conflict in respect of its own previous decisions, may choose which it will follow (the decision not followed being deemed to be overruled)! - 3. Overruled by the FC! Below Federal Court! - become inconsistent with the decision of the FC! Federal Court! - retain right to depart from its own decision! - If it follows the practice of the other commonwealth jurisdictions!

QUESTION 3 (a) Define ratio decidendi and illustrate ratio decidendi with reference to one decided case. (6 marks) ! Ratio decidendi: - The reasons for the decision! - Binding part of a previous decision! - Must be followed by judges in later cases! - Where there is no existing precedent, the court will declare the law and the case will become an original precedent.! - PP v Dato Tan Cheng Swee & Anor (1980)! - Reaffirms the application of the doctrine of judicial binding precedent that expects the lower courts to be bound by the decision of the higher courts.! !

(b) State and explain THREE (3) advantages and disadvantages of the doctrine of judicial precedent. (6 marks)! Advantages: 1. It leads to element of certainty in the law! - if there is earlier case, outcome of the case will be certain. Lawyers can advise clients safely.! 2. The law is able to grow according to the needs of society! - as society changes, law must changes! 3. The law is flexible in that new rules arise out of concrete facts or situations! - overruled by higher court, law can change! - Possible for courts to get around an outdated decision! Disadvantages: 1. The law becomes rigid due to the hierarchy of binding precedents being established! 2. Time factor! - development of laws through new precedents too slow, and irregular! 3. The bulk of reported cases# ! - more cases heard, more voluminous....