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MALAYSIAN
LEGAL SYSTEM ( LAA1032)
TITLE :
THE DOCTRINE
OF JUDICIAL PRECEDENT AND ITS IMPLEMENTATION IN MALAYSIA
SIR IDZUAFI HADI
BIN KAMILAN
BIL NAMA NO.
MATRIK
1 HISAN BIN ABDUL HALIM 1101220
2 BASRI AIMAN BIN BAKRI 1101215
3 FAIZAH BINTI ZAINUDIN 1101216
4 NORAMIRA BINTI ARSHAD 1101213
5 NURHUDA BINTI ABDULLAH 1101233
KUMPULAN BLC 3
SEMESTER 1
SESI 2010/2011
CONTENT
INTRODUCTION
The Sources of Malaysian Law
Malaysian law can classify into written and unwritten law. A reference
to the unwritten law does not mean that the law is literally unwritten. It is a
convenient reference to that portion of Malaysian law which is not enacted by
the legislature (Parliament and State Assemblies) and which is not found in the
constitution, both federal and state. This “un-enacted” law is found in cases
decided by the courts and local customs that have legal force, namely, the
whole of non-statutory laws. Written law, on the other hand, refers to the
embodied in the Federal and State Constitutions and in a code or a statute,
including subsidiary or delegated legislation.
Malaysian written law consists of the
following:
a) Federal Constitution
The Federal Constitution of Malaysia is the supreme law of Malaysia. The 1957 Constitution of the Federation of Malaya
is the basis of this document. It establishes Malaysia as a constitutional
monarchy having the Yang Di-Pertuan Agong as the Head of State whose roles are largely ceremonial.
It provides for the establishment and the organization of three main branches
of the government: the bicameral legislative branch called the Parliament,
which consists of the
House of Representatives and the Senate; the executive branch led by the Prime
Minister and consists of Cabinet Ministers; and the judicial branch headed by
the Federal Court.
b) State
Constitution
Malaysia has 14 states and each state
has its own state constitution. Johor was the first state to have a written
constitution granted by Sultan Abu Bakar in1895.All state constitutions must be
harmonious with the Federal Constitution. All state must include ‘Essential
Provisions’ in their respective
constitution.
c)
Legislation
Legislation or "statutory law" is law which has been enacted by a legislature or other governing body, or the process of making it.
(Another source of law is judge-made law or case law.) Before an item of legislation
becomes law it may be known as a bill, and may be broadly referred to
as "legislation" while it remains under consideration to distinguish
it from other business. Legislation can have many purposes: to regulate, to
authorize, to proscribe, to provide (funds), to sanction, to grant, to declare
or to restrict.
d)
Subsidiary
Legislation
Colloquially known as anak-anak
undang (children of the law).These are normally found in the Government Gazette,
but unfortunally, they are not easily accessible to the public and even if
available, it is difficult to keep abreast of changes. Computer technology may
eventually alleviate this problem but the process of putting them into a data
base is both expensive and time consuming but this is now almost complete in
relation to federal statutes.
e)
Ordinances
Known as extraordinary laws can be
made by the Yang Di-Pertuan Agong (King of the Federation) during a period of
emergency proclaimed in accordance with article 150 of the Federation Constitution.
During the operation of the emergency, if “the Yang Di-Pertuan Agong is
satisfied that certain circumstances exist which render it necessary for him to
take immediate action, he may promulgate such ordinances as circumstances
appear to him to require”.[1]
The
unwritten law of Malaysia comprises the following;
a)
English
Common Law
English law is the legal system of England, and is the basis of common law legal systems used in most Commonwealth countries. English Law was
introduced in Malay states, Sabah and Sarawak directly and indirectly. A
Malaysian court has a choice whether to apply the English Law or not. When the
English law is applied, it becomes the local law.
b) Judicial
Precedents
The doctrine of judicial
precedent is concerned with the importance of case law in Malaysian system. It
is really the lawyer’s term for legal experience. All tend to repeat things
have done before: law is essentially no different. If one case has decided a
point of law then it is logical that that solution will be looked at in the
future.
c)
Customs of
local inhabitants
There is no customary law of general application
in Malaysia. Custom rooted from the ancient custom of the people. It is the
customs which are accepted as binding and enforceable by the court. In Malay
Adat comprises of Adat Perpatih and Adat Temenggung. Adat Perpatih applies in
Negeri Sembilan and some part of Naning
in Melaka whereas Adat Temenggung applies to the rest of Malay Peninsular. The
Chinese Customary Law in the Straits Settlement and Malay States were the
creation of the courts. The development of Hindu Customary Law was the extension
and adaptation of the Hindu Customary Law in India.
d)
Islamic
Law
A major source of Malaysian law but
it is applicable only to Muslims, regardless of race. It is administered by a
separate system of state Syariah Courts except in the Federal
Territories of Kuala Lumpur, Putrajaya and Labuan which have their own.
PART 1 :
JUDICIAL PRECEDENT SYSTEM
1.1 Definition
Judicial is a power which enforced the laws made by first branch.[2] A
precedent is commonly defined as a judgment or decision of a court of law cited
as an authority for the legal principle embodied in its decision.[3]
Judicial precedent is a judgment of a court of law cited as an authority
for deciding a similar set of facts; a case which serves as authority for the
legal principle embodied in its decision. The common law has developed by
broadening down from precedent to precedent.
A judicial precedent is a decision of the court used as a source for future
decision making. This practice of following precedent is also known as stare
decisis [4]
and by which precedents are authoritative and binding and must be followed.
Judicial precedent is an important source of English law as an original
precedent is one which creates and applies a new rule. However, the later
decision, especially of the higher courts, can have number of effect upon
precedents. In particular, they may be:
·
Reversed: where on appeal in the same case
the decision is reversed, the initial decision will cease to have any effect.
·
Overruled: where in a later case a higher
court decides that the first case was wrongly decided.
·
A refused to follow: this arises where a
court, not bound by the decision, cannot overrule it but does not wish to
follow it so it simply refuses to follow the earlier decision.
·
Distinguished: where an earlier case is
rejected as authority, either because the material facts differ or because the
statement of law in previous case is too narrow to be properly applied to new
sets of facts.
·
Explained: a judge may seek to interpret an
earlier decision before applying it or distinguishing it, thus the effect of
earlier case is varied in circumstances of the present case.
Lord Gardiner LC, in a practice statement on behalf of himself and Lords
of Appeal in Ordinary, restated in 1966 the doctrine, which has equal
application in Malaysia.
“Their Lordship regard to use of
precedent as an indispensible foundation upon which to decide what is the law
and its application to individual cases. Its provides at least some degree of
certainty upon which individuals can rely in the conduct of their affairs as
well as a basis for orderly development of legal rules.”[5]
A reminder that the doctrine must also be strictly observed in Malaysia
was delivered by Federal Judge, Justice Chang Min Tat, when he said:
“It is …. necessary to reaffirm
the doctrine of stare decisis which the Federal Court accepts unreservedly and
which it expects the High Court and other inferior courts in common law system
such as ours to follows similarity.”[6]
1.2 History of The Concept
Precedent that is decision in previous similar cases, have for many
hundreds of years been important in the development in English Law, but until
the latter part of nineteenth century were only persuasive that is a judge
would be influenced by the decision I a previous case, but did not consider
himself bound by it.
The modern doctrine of precedent, under which a judge is bound by the
decision in a previous case, even if he considers it to be unjust or illogical,
is of comparatively modern origin.
In the early days of common law,
judges considered that their judgments was merely declaratory, common law was
based on general custom, and they were merely enunciating what that custom was.
This attitude left no room for the development of a doctrine of precedent. In
every event, there was no method of recording judgment fully and accurately.
The development of printing and the improvement in the standards of
reporting meant that from sixteen century it has been accepted that must be
regard must be paid to previous decisions and that it was not for the courts to
rejected them and abandon all analogy to them. Later in the nineteen century
two events occurred which laid the groundwork for the establishment of the
system of binding precedents such as in 1865, the Council of Law Reporting was
created, and this ensured that for the future there would be a consistent and
reliable system of reporting cases. There had been many earlier series the
reports, but their reliability varied considerably in the whole system of
courts was reorganized by the Judicature Acts 1873-1875 and the Appellate
Jurisdiction Acts 1876, and this made easier the task of recognizing the
hierarchy of court.
PART 2 :
ITS IMPLEMENTATION IN MALAYSIA
2.1 How does The Doctrine of Precedent Work
Several processes are necessary in forming
a judicial decision. When a case is brought before the court, the first thing
to be established is the facts of the case. These will be decided by the
presiding judge and in countries where a jury is empanelled, the facts will be
determined by the jury. Once the facts are established, the judge will apply
the law to determine which litigant should succeed. It is at this stage that
the doctrine of precedent will control his or her decision. Given the total
abolition of trial by jury in Malaysia, both questions of fact and law will be
decided by the judge.
In coming to a decision as to which precedent is binding, the judge is
influenced by two main factors, namely :
a) The origin of the precedent; to be binding, a precedent must originate
from court of appropriate rank in the same hierarchy.
b) The contents of the precedent that is the ratio decidendi which is the
legal reasoning of the precedent that is binding.
The concept of ratio decidendi is not an easy one to gasp. Suppose A
bought a bottle of ginger ale, drank it and suffered diarrhoea and other
illness as a result of the presence of a decomposed snail in the bottle. The
person successfully sued the manufacturer for negligence in the manufacture of
the product. In a subsequent case, X bought clothes from another shop, wore
them and suffered dermatitis and other related skin problems owing to the
presence of certain chemicals in the clothes. The court in the latter case
decided to apply the legal principle established in the different but
nevertheless, there is a common element justifying the application of the same
rule. That rule, which is the ratio of the earlier case, is constant. It may be
stated as follows:
A manufacture of product 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 manufacture, the latter is
liable. In fact, that principle was established in the celebrated case of Donoghue
v Stevenson [1932] AC 562 which is commonly referred to as the Snail in
the Bottle case.
Selection of the relevant or material fact is important as it determines
the breadth of a legal principle. For instance, could the case of the negligent
drink manufacturer be a precedent for a case in which careless advice was given
by a bank to a customer and which caused such person financial loss rather than
personal injury? In Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964]
AC 465, the court did extend the rule to the situation just described. It is
clear that subsequent applications of the rule established in Donoghue v
Stevenson have not limited the ratio to a manufacture of drinks or clothes.
It has come a long way from the snail in the bottle. The case is now seen as a
binding authority for a very broad general principle and the facts raise to a
high level of generality. “Negligently leaving a snail in a bottle of ginger
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”.
Ultimate, the width of a precedent will be determined by a later court
confronted with the task of applying a precedent to a new set of facts.
Precedent, once established, retain their authority no matter how old they are
unless they are overruled by a higher court in a subsequent case or overturned
by legislative action.
In the course of a judgment, a judge may express an opinion on a
question of law not directly relevant to the case before him. His opinion is an
obiter dictum or obiter dicta in the plural. It is commonly
abbreviated “obiter” or ” dicta”. This legal expression means
“things said by the way”. The obiter dictum is not part of the ratio.
Accordingly, it is strictly not binding on courts although it may have very
high persuasive authority, particularly if it originates from a higher court
such as the Federal Court.
The theoretical differences between the ratio and obiter
may appear to be simple. In practice, it is very difficult to distinguish
between them. One needs training and experience in the law to tell the
difference, and even then, the extent of its application is arguable. Judges
are not always helpful in this regard. They do not indicate which is the ratio
or dicta of a judgment. In an appellate court where three or more
judges decide, they may give different reasons for coming to the same decision.
Legal opinions often differ. Consequently, lawyers may venture an opinion based
on their training and knowledge of the law. This situation does result in
uncertainly and it is not satisfactory. It is an imperfect system. People ought
to be able to know what the law is, so they can go on with their activities and
organise their affairs accordingly. No
wander the American realists have taken up a statement made in jest by Lord
Asquith when asked to distinguish a ratio from a dictum. He said:
“ The rule is simple, if you agree with the
other bloke you say it is part of the ratio: if you don’t you say it is obiter
dictum, with the implication that he is a congenital idiot”
2.2 Hierarchy of Precedents
Two condition have to be satisfied before
the doctrine of Stare Decisis can be established in court. Firstly, there must
be also a settled judicial hierarchy for until then it cannot be known. The
structure of this hierarchy must be considered first.
Committee of the Privy Council
Long after the Union Jack had been lowered in the colonies and
possessions, the Privy Council continued to sit in England as the final court
of appeals of many Commonwealth countries including Malaysia. Judicial appeals
to this august body had been a part of the colonial judicial system. When the
British colonial empire was greatly expanded, it became necessary to make
adequate provisions for the determination of appeals from the colonies and
possessions. Consequently, in 1833, the Judicial Committee of the Privy Council
was reorganized to accommodate such appeals.
Its beginning was modest, but it quickly acquired a stature and respect
among common law lawyers for the quality of decisions. The first reported
decision to the Privy Council from Malaysia emanated from Straits Settlements
in the case of Yeap Cheah Neo v Ong Cheng Neo [1875] LR 6 PC 381.
In respect of the Malay States, its establishment followed the creation of the
Residential system when the territories became British protectorates. In
negotiations towards independence for Malay, it was agreed that a Commonwealth
Constitutional Commission should be appointed to make recommendations for a
constitution for the new nation. Headed by Lord Reid, a Lord of Appeal in
Ordinary, the Commission recommended, inter alia, that the Judicial Committee
should continue to hear appeals from local court. However, it recognized that
existing procedure governing appeals was not appropriate for an independent
country with its own monarch, given that a decision of the Privy Council took
the form of advice to the British monarch. In the event, article 131(1) of the
Federal Constitution was included to empower the Yang Di-Pertuan Agong to make
arrangements with Her Majesty for the reference to the Privy Council of appeals
from the Federal Court. In that arrangement, appeals would be made to the Yang
Di-Pertuan Agong who referred them to the Privy Council. A decision of the
Privy Council took the form of advice to the Yang Di-Pertuan Agong who would give effect to it.
Appeals on criminal and constitutional matters were not permitted from 1
January, 1978 and civil matters from 1 January, 1985. These changes were
effected through the Courts of Judicature ( Amendment ) Act 1976 and the
Constitution ( Amendment ) Act 1983. The Privy Council is now a defunct court
in relation to Malaysia, and the weight to be given to its previous decisions
has become a matter for Malaysian courts to decide. The Federal Court, being
the ultimate appellate court of the land, possesses the authority to take an
approach different from that taken by lower courts. It may decide to depart
from the previous decision of the Privy Council in a particular case whereas
lower court may feel bound by past decisions until the Federal Court has spoken
otherwise. The ability to depart from previous binding decisions of the Privy
Council is consistent with the sovereign status of Malaysia and the Federal
Court as its highest court.
In practical application, the situation is the best explained by
dividing the status of the Privy Council decisions into two periods; pre-abolition
and post-abolition. Prior to its abolition, its decisions were binding on the
Malaysian court in the following circumstances:
(1) If the law decided was given on appeal from Malaysia; or
(2) If the decision was given on appeal from another Commonwealth country,
the law was pari material or similar to that of Malaysia.
In the past, decisions of the Privy Council given on appeal from
Malaysia prior to its abolition were absolutely binding on Malaysian courts.
In the area of conflict between a decision of the Privy Council and that
of the House of Lords, the view had always been that the decision of the former
would prevail. When the opposite view was canvassed by counsel in a caes before
Justice Abdoolcader in the High Court, it was quickly dismissed with the
following statement:
“ Mr Mohideen in his final reply submits
that the decision of the Privy Council in Colonial Bank of Australasia v
Willan [1874] LR 5 PC 417 now must be considered as qualified by Animinic
Ltd v Foreign Compensation Commision [1969] 2 AC 147. I am astounded, to
stay the least, at the proposition so flagrantly flung in the face of the
decision of the House Lord, let alone obiter dicta at that can be held
to qualify, undermine or indeed virtually purport to overrule a decision of the
Privy Council…..
The precedent laid down and established by
the Privy Council in Colonial Bank of Australasia v Willan [1874] LR 5
PC 417 can be but a spring of mature wisdom from which I am bound to and must
necessarily drink, but that apart, I respectfully agree with the ratio
decidendi in that decision in its
entirety.”
It may be appropriate at this juncture to state that the House of Lords
decisions, being a part of the common law, may still be a source of Malaysian
law by virtue of section 3(a), (b) and (c) of the Civil Law Act 1956
subject, of course, to the various conditions provided in the same section, for
instance suitability to local circumstance.
The situation is altered with the abolition of appeals to the Privy
Council from 1 January, 1985. As previously stated, the current Federal Court
(and before it, the Supreme Court) is free to depart from the previous
decisions of the Privy Council, regardless whether they were on appeal from
Malaysia or other countries where the law was pari material although it
is unlikely to do so lightly. Whether it will do so in a particular case is a
matter for the Federal Court to determine.
In respect of courts below the level of the Federal Court, they are
bound to follow previous decisions of the Privy Council unless they have become
inconsistent with a decision of the Federal Court (or the defunct Supreme
Court) or they have been modified by legislation. Past decisions of the Privy
Council that were binding have become part of Malaysian jurisprudence, and
remain so unless altered by a competent authority.
The situation in Malaysia in regard to Privy Council decisions is not
much different from the same in Australia where appeals to that body were also
progressively removed, the process, began in 1968 and fully accomplished in
1986. In Viro v R [1978] 141 CLR 88, the Australian High Court, which is
the highest court, held that it was no longer bound by Privy Council decisions,
regardless whether they were given before or after the abolition of appeals to
the Privy Council.
The federal court
The federal court is the final court of appeal. As the highest court in
Malaysia, it is unclear whether it will hold itself bounds by its and prior
decisions, but if it follows the practice of highest court in most other
Commonwealth jurisdictions, its expected that it will retain a right of depart
from its own prior decisions in appropriate cases.
In Arulpgasan
a/l Sandaraju v Public persecutor [1997] 1 MLJ 1, the Federal Court
departed from its previous decision on the issue of burden proof on the grounds
that it had misunderstood the ratio of previous case. However, any
departure will be sparing in appropriate circumstances given the need for
certainty. In Tunde Apatria v Public Prosecutor [2001] 1 MLJ 259, the Federal
Court rejected the prosecution’s submission to depart from an earlier decision.
Subject to the foregoing
paragraph, in respect of decisions of the defunct Supreme Court (established 1
January, 1985) which it replaced, in most cases it will continue to follow its
decisions, including that of it predecessor, the defunct of Federal Court of
Malaysia. The Federal Court of old replaced by the Supreme Court on 1 January,
1985, which was set up when appeals in civil cases to the Privy Council were
abolished.[7]
The highest court has been reconstituted several times, causing in its wake, a
degree of confusion as to the binding force of previous decisions.
In the application of the doctrine of the precedents, decisions of the
Federal Court, like the Supreme Court before it and the defunct Federal Court
before the letter, are binding on all lower courts. This is by virtue of the
fact that it is the highest court.
The question of horizontal stare decisis is less than clear. If
pronouncements of the defunct Supreme Court are to be taken as a guide, it
appears that decisions given in its appellate role when sitting as a
constitutional court will be binding.. In its other appellate roles, judicial
view differ. From the judicial pronouncements, the position appears to be that
it will depart from previous decision, if necessary.
The old Federal Court of Malaysia had
regarded itself as bound by its own decisions in civil cases, subject to
exceptions to be elaborated upon later in this part, is well settled
Three exceptions to the general principle were elaborated upon in Lord
Greene’s judgement in Young v Bristol
Aeroplane Co Ltd, summarised as follows. First, when there is a conflict of
decisions, the court is entitled to decide which of the two conflicting
decisions of its own it will follow. Secondly, the court is bound to refuse to
follow a decision of its own which, though not expressly overruled, cannot
stand up with a decision of the House of Lords.
Thirdly, it is not bound to follow a decision given per incuriam, that
is, were the court has failed to take into account relevant legal principle or
statute. Per incuriam is the Latin expression for “through want of care” or
“through inadvertence” or “by mistake”.
The High Courts
The High Court in Malaya and the High Court in Borneo have equal and
co-ordinate jurisdiction. The position of a judge of the High Court in England
with regard to the doctrine of stare decisis.
Until the mid sixties the court in this country seems to have been bound
by decisions of a co-ordinate court. In P.N. Mohammad Ibrahim v. Yap Chin Hock
& Anor, the judge was Foong & Ors. v. Chop Thong Cheong, being a decision of a court of co-ordinate
jurisdiction. Again in Sundralingam v. Ramanatham Chettiar, MacIntyre J.
relying on the authority of Muhammad Ibrahim’s case, held himself bound
by the decision of a court of co-ordinate jurisdiction. On further appeal to
the Federal Court, the decision of the trial magistrate which was upheld
by MacIntyre J. was reversed. In the
cause of his judgement Azmi C.J. said:
“In his judgement MacIntyre J, expressed
the view that he was bound to follow the decision of Storr J, . . being a
decision of a court of co-ordinate jurisdiction sitting on appeal.”
On this question my view is that, he may
properly follow the practice in England where a High Court Judge, though he
cannot over-rule one of his brethen, could disapproved his decision and decline
to follow him.
Ong F.J. has this to say:
“Each court, of course, is bound by the
decision of courts above it, but individual judges are not bound by each
other’s decision, although judicial coursety naturally requires that they do
not lightly dissent from the considered opinion of their brethren”.
On the authority of Sundralingam’s case, the practice of stare decisis
in Malaysia Courts can be summed up in the following propositions:
1- Each court is bound by the decision of courts above it.
2- Courts of co-ordinate jurisdiction are not bound by each other’s decisions.
3- Only decisions of the High Court and above are quotable as law.
4- The Malaysian practise is similar to that of England.
Subordinate Court
The Session Court and Magistrates’ Court are subordinate courts. They
are bound by precedents laid down by the superior courts but their own
decisions are not binding on any court, given their lack of capacity to
established binding precedent.
PART 3 :
EXAMPLES THE CASES AND METHOD WITH THE
JUDGEMENT
3.3 Australian Conservation Foundation Incorprated vs. The Commonwealth
of Australia &
Others
3.4 Donoghue vs. Stevenson
CONCLUSION : EFFECTS
Advantages of Binding
Precedents
1. Consistency This refers to the fact that ‘like cases will be treated alike and are not subjected to the whims and fancies of individual judges. 2. Certainty Lawyers and their clients are able to predict what the outcome of particular legal questions is likely to be in the light of previous judicial decisions. Once the legal rule has been established in one case, individuals can orientate their behaviour with regard to that rule, relatively secure in the knowledge that it will not be changed by some later or lower court. 3. Efficiency Cases to some extent are predictable and save time of the judiciary, lawyers and their clients for the reason that cases do not have to be reargued. At such would be much less costly for the parties to the dispute or for the prosecution and defendants. 4. Detailed rules Case laws respond to real situation. Case laws shows detailed application of law to various circumstances and are more informative than statutes which are basically theory and logics. 5. Flexibility Law need to be flexible to meet the needs of the ever changing society and case laws can make changes faster than parliament. There are various mechanisms by means of which judges can manipulate the Common Law provide with an opportunity to develop law in particular areas without waiting for Parliament to enact legislation. Example is the case of Airedale NHS Trust v Bland [1993] on the question of whether a life support machine should be switched off when a person was in a persistent vegetable state. Although it will contravene the Human Rights Act (the right to live), the House of Lords allowed the termination. In Re: A [2000], it dealt with the question whether a Siamese twin would be separated by an operation when the hospital recommended this, but where the parents had expressed clearly their objection. Here again, the House of Lords allowed the operation to proceed.
Disadvantages of Binding
Precedent
1. Complexities and voluminous Hundreds of thousands of decided cases comprise many thousands of pages of law reports and more added all the time. Judgments are very long, and not readable and the ratio decidendi are difficult to find. It is also difficult to pinpoint clearly the appropriate principles laid by judges for each of the decision of each case. 2. Distinguishing by judges Judges are allowed to distinguish a binding precedent on the case before them if they consider the principles of the binding precedent to be inappropriate. This leads to mass number of cases establishing different precedents in varying circumstances which further complicates the Common Law. 3. Unpredictability If too many kind of illogical distinctions are made, it is impossible to make out which precedent will be applied. 4. Rigidity and fixity Judges have to follow a binding precedent even though they think it is bad law or inappropriate. Bad judicial decisions may become ossified on the basis of an unjust precedent, with the consequences that previous injustices are perpetuated for a long time before another similar case gets to a court high enough to overrule them. 5. Unconstitutional Case laws are judicial decisions and the fundamental question refers to the fact that the judiciaries are overstepping their theoretical constitutional role by actually making law rather than applying it. Law reforms also give rise to the question as to how the law is to develop and change to cater for changed circumstances if cases are always to be decided according to precedent. 6. Dependence on chance Case law changes only in response to those who had brought them through the various court hierarchies, that is, from High Courts to the Court of Appeals and then to the House of Lords. Only when a case is pushed far enough to the highest hierarchy of Appeal Courts would a new precedent be created.
References
1.
Abdul Monir b. Yaakob. 1989. An Introduction to Malaysia law.
Cetakan Pertama. Bangi: Universiti Kebangsaan Malaysia.
2.
Wu Min Aun. 2005. The Malaysian
Legal System. Third Edition. Kuala Lumpur: Pearson Malaysia Sdn. Bhd
3.
________. 2010. Federal Constitution. Petaling Jaya: International
Law Book Servises
6.
http://nuweb.northumbria.ac.uk/bedemo/Sources_of_English_Law/page_10.htm
[1]
Federal Constitution, article 150(2B)
[2] Wu
Min Aun. 2005. The Malaysian Legal System. Third Edition. Kuala Lumpur:
Pearson Malaysia Sdn. Bhd. p. 67
[3] Wu
Min Aun. 2005. The Malaysian Legal System. Third Edition. Kuala Lumpur:
Pearson Malaysia Sdn. Bhd. p. 144
[4]
Stare decisis: To stand upon decisions
[5]
[1966] 2 MLJ xi.
[6] PP
v Datuk Tan Cheng Swee & Anor [1980] 2 MLJ 277
[7]
Appeals to Privy Council in criminal and constitutional cases were abolished as
from 1 January 1978.
MALAYSIAN
LEGAL SYSTEM ( LAA1032)
TITLE :
THE DOCTRINE
OF JUDICIAL PRECEDENT AND ITS IMPLEMENTATION IN MALAYSIA
SIR IDZUAFI HADI
BIN KAMILAN
BIL NAMA NO.
MATRIK
1 HISAN BIN ABDUL HALIM 1101220
2 BASRI AIMAN BIN BAKRI 1101215
3 FAIZAH BINTI ZAINUDIN 1101216
4 NORAMIRA BINTI ARSHAD 1101213
5 NURHUDA BINTI ABDULLAH 1101233
KUMPULAN BLC 3
SEMESTER 1
SESI 2010/2011
CONTENT
INTRODUCTION
The Sources of Malaysian Law
Malaysian law can classify into written and unwritten law. A reference
to the unwritten law does not mean that the law is literally unwritten. It is a
convenient reference to that portion of Malaysian law which is not enacted by
the legislature (Parliament and State Assemblies) and which is not found in the
constitution, both federal and state. This “un-enacted” law is found in cases
decided by the courts and local customs that have legal force, namely, the
whole of non-statutory laws. Written law, on the other hand, refers to the
embodied in the Federal and State Constitutions and in a code or a statute,
including subsidiary or delegated legislation.
Malaysian written law consists of the
following:
a) Federal Constitution
The Federal Constitution of Malaysia is the supreme law of Malaysia. The 1957 Constitution of the Federation of Malaya
is the basis of this document. It establishes Malaysia as a constitutional
monarchy having the Yang Di-Pertuan Agong as the Head of State whose roles are largely ceremonial.
It provides for the establishment and the organization of three main branches
of the government: the bicameral legislative branch called the Parliament,
which consists of the
House of Representatives and the Senate; the executive branch led by the Prime
Minister and consists of Cabinet Ministers; and the judicial branch headed by
the Federal Court.
b) State
Constitution
Malaysia has 14 states and each state
has its own state constitution. Johor was the first state to have a written
constitution granted by Sultan Abu Bakar in1895.All state constitutions must be
harmonious with the Federal Constitution. All state must include ‘Essential
Provisions’ in their respective
constitution.
c)
Legislation
Legislation or "statutory law" is law which has been enacted by a legislature or other governing body, or the process of making it.
(Another source of law is judge-made law or case law.) Before an item of legislation
becomes law it may be known as a bill, and may be broadly referred to
as "legislation" while it remains under consideration to distinguish
it from other business. Legislation can have many purposes: to regulate, to
authorize, to proscribe, to provide (funds), to sanction, to grant, to declare
or to restrict.
d)
Subsidiary
Legislation
Colloquially known as anak-anak
undang (children of the law).These are normally found in the Government Gazette,
but unfortunally, they are not easily accessible to the public and even if
available, it is difficult to keep abreast of changes. Computer technology may
eventually alleviate this problem but the process of putting them into a data
base is both expensive and time consuming but this is now almost complete in
relation to federal statutes.
e)
Ordinances
Known as extraordinary laws can be
made by the Yang Di-Pertuan Agong (King of the Federation) during a period of
emergency proclaimed in accordance with article 150 of the Federation Constitution.
During the operation of the emergency, if “the Yang Di-Pertuan Agong is
satisfied that certain circumstances exist which render it necessary for him to
take immediate action, he may promulgate such ordinances as circumstances
appear to him to require”.[1]
The
unwritten law of Malaysia comprises the following;
a)
English
Common Law
English law is the legal system of England, and is the basis of common law legal systems used in most Commonwealth countries. English Law was
introduced in Malay states, Sabah and Sarawak directly and indirectly. A
Malaysian court has a choice whether to apply the English Law or not. When the
English law is applied, it becomes the local law.
b) Judicial
Precedents
The doctrine of judicial
precedent is concerned with the importance of case law in Malaysian system. It
is really the lawyer’s term for legal experience. All tend to repeat things
have done before: law is essentially no different. If one case has decided a
point of law then it is logical that that solution will be looked at in the
future.
c)
Customs of
local inhabitants
There is no customary law of general application
in Malaysia. Custom rooted from the ancient custom of the people. It is the
customs which are accepted as binding and enforceable by the court. In Malay
Adat comprises of Adat Perpatih and Adat Temenggung. Adat Perpatih applies in
Negeri Sembilan and some part of Naning
in Melaka whereas Adat Temenggung applies to the rest of Malay Peninsular. The
Chinese Customary Law in the Straits Settlement and Malay States were the
creation of the courts. The development of Hindu Customary Law was the extension
and adaptation of the Hindu Customary Law in India.
d)
Islamic
Law
A major source of Malaysian law but
it is applicable only to Muslims, regardless of race. It is administered by a
separate system of state Syariah Courts except in the Federal
Territories of Kuala Lumpur, Putrajaya and Labuan which have their own.
PART 1 :
JUDICIAL PRECEDENT SYSTEM
1.1 Definition
Judicial is a power which enforced the laws made by first branch.[2] A
precedent is commonly defined as a judgment or decision of a court of law cited
as an authority for the legal principle embodied in its decision.[3]
Judicial precedent is a judgment of a court of law cited as an authority
for deciding a similar set of facts; a case which serves as authority for the
legal principle embodied in its decision. The common law has developed by
broadening down from precedent to precedent.
A judicial precedent is a decision of the court used as a source for future
decision making. This practice of following precedent is also known as stare
decisis [4]
and by which precedents are authoritative and binding and must be followed.
Judicial precedent is an important source of English law as an original
precedent is one which creates and applies a new rule. However, the later
decision, especially of the higher courts, can have number of effect upon
precedents. In particular, they may be:
·
Reversed: where on appeal in the same case
the decision is reversed, the initial decision will cease to have any effect.
·
Overruled: where in a later case a higher
court decides that the first case was wrongly decided.
·
A refused to follow: this arises where a
court, not bound by the decision, cannot overrule it but does not wish to
follow it so it simply refuses to follow the earlier decision.
·
Distinguished: where an earlier case is
rejected as authority, either because the material facts differ or because the
statement of law in previous case is too narrow to be properly applied to new
sets of facts.
·
Explained: a judge may seek to interpret an
earlier decision before applying it or distinguishing it, thus the effect of
earlier case is varied in circumstances of the present case.
Lord Gardiner LC, in a practice statement on behalf of himself and Lords
of Appeal in Ordinary, restated in 1966 the doctrine, which has equal
application in Malaysia.
“Their Lordship regard to use of
precedent as an indispensible foundation upon which to decide what is the law
and its application to individual cases. Its provides at least some degree of
certainty upon which individuals can rely in the conduct of their affairs as
well as a basis for orderly development of legal rules.”[5]
A reminder that the doctrine must also be strictly observed in Malaysia
was delivered by Federal Judge, Justice Chang Min Tat, when he said:
“It is …. necessary to reaffirm
the doctrine of stare decisis which the Federal Court accepts unreservedly and
which it expects the High Court and other inferior courts in common law system
such as ours to follows similarity.”[6]
1.2 History of The Concept
Precedent that is decision in previous similar cases, have for many
hundreds of years been important in the development in English Law, but until
the latter part of nineteenth century were only persuasive that is a judge
would be influenced by the decision I a previous case, but did not consider
himself bound by it.
The modern doctrine of precedent, under which a judge is bound by the
decision in a previous case, even if he considers it to be unjust or illogical,
is of comparatively modern origin.
In the early days of common law,
judges considered that their judgments was merely declaratory, common law was
based on general custom, and they were merely enunciating what that custom was.
This attitude left no room for the development of a doctrine of precedent. In
every event, there was no method of recording judgment fully and accurately.
The development of printing and the improvement in the standards of
reporting meant that from sixteen century it has been accepted that must be
regard must be paid to previous decisions and that it was not for the courts to
rejected them and abandon all analogy to them. Later in the nineteen century
two events occurred which laid the groundwork for the establishment of the
system of binding precedents such as in 1865, the Council of Law Reporting was
created, and this ensured that for the future there would be a consistent and
reliable system of reporting cases. There had been many earlier series the
reports, but their reliability varied considerably in the whole system of
courts was reorganized by the Judicature Acts 1873-1875 and the Appellate
Jurisdiction Acts 1876, and this made easier the task of recognizing the
hierarchy of court.
PART 2 :
ITS IMPLEMENTATION IN MALAYSIA
2.1 How does The Doctrine of Precedent Work
Several processes are necessary in forming
a judicial decision. When a case is brought before the court, the first thing
to be established is the facts of the case. These will be decided by the
presiding judge and in countries where a jury is empanelled, the facts will be
determined by the jury. Once the facts are established, the judge will apply
the law to determine which litigant should succeed. It is at this stage that
the doctrine of precedent will control his or her decision. Given the total
abolition of trial by jury in Malaysia, both questions of fact and law will be
decided by the judge.
In coming to a decision as to which precedent is binding, the judge is
influenced by two main factors, namely :
a) The origin of the precedent; to be binding, a precedent must originate
from court of appropriate rank in the same hierarchy.
b) The contents of the precedent that is the ratio decidendi which is the
legal reasoning of the precedent that is binding.
The concept of ratio decidendi is not an easy one to gasp. Suppose A
bought a bottle of ginger ale, drank it and suffered diarrhoea and other
illness as a result of the presence of a decomposed snail in the bottle. The
person successfully sued the manufacturer for negligence in the manufacture of
the product. In a subsequent case, X bought clothes from another shop, wore
them and suffered dermatitis and other related skin problems owing to the
presence of certain chemicals in the clothes. The court in the latter case
decided to apply the legal principle established in the different but
nevertheless, there is a common element justifying the application of the same
rule. That rule, which is the ratio of the earlier case, is constant. It may be
stated as follows:
A manufacture of product 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 manufacture, the latter is
liable. In fact, that principle was established in the celebrated case of Donoghue
v Stevenson [1932] AC 562 which is commonly referred to as the Snail in
the Bottle case.
Selection of the relevant or material fact is important as it determines
the breadth of a legal principle. For instance, could the case of the negligent
drink manufacturer be a precedent for a case in which careless advice was given
by a bank to a customer and which caused such person financial loss rather than
personal injury? In Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964]
AC 465, the court did extend the rule to the situation just described. It is
clear that subsequent applications of the rule established in Donoghue v
Stevenson have not limited the ratio to a manufacture of drinks or clothes.
It has come a long way from the snail in the bottle. The case is now seen as a
binding authority for a very broad general principle and the facts raise to a
high level of generality. “Negligently leaving a snail in a bottle of ginger
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”.
Ultimate, the width of a precedent will be determined by a later court
confronted with the task of applying a precedent to a new set of facts.
Precedent, once established, retain their authority no matter how old they are
unless they are overruled by a higher court in a subsequent case or overturned
by legislative action.
In the course of a judgment, a judge may express an opinion on a
question of law not directly relevant to the case before him. His opinion is an
obiter dictum or obiter dicta in the plural. It is commonly
abbreviated “obiter” or ” dicta”. This legal expression means
“things said by the way”. The obiter dictum is not part of the ratio.
Accordingly, it is strictly not binding on courts although it may have very
high persuasive authority, particularly if it originates from a higher court
such as the Federal Court.
The theoretical differences between the ratio and obiter
may appear to be simple. In practice, it is very difficult to distinguish
between them. One needs training and experience in the law to tell the
difference, and even then, the extent of its application is arguable. Judges
are not always helpful in this regard. They do not indicate which is the ratio
or dicta of a judgment. In an appellate court where three or more
judges decide, they may give different reasons for coming to the same decision.
Legal opinions often differ. Consequently, lawyers may venture an opinion based
on their training and knowledge of the law. This situation does result in
uncertainly and it is not satisfactory. It is an imperfect system. People ought
to be able to know what the law is, so they can go on with their activities and
organise their affairs accordingly. No
wander the American realists have taken up a statement made in jest by Lord
Asquith when asked to distinguish a ratio from a dictum. He said:
“ The rule is simple, if you agree with the
other bloke you say it is part of the ratio: if you don’t you say it is obiter
dictum, with the implication that he is a congenital idiot”
2.2 Hierarchy of Precedents
Two condition have to be satisfied before
the doctrine of Stare Decisis can be established in court. Firstly, there must
be also a settled judicial hierarchy for until then it cannot be known. The
structure of this hierarchy must be considered first.
Committee of the Privy Council
Long after the Union Jack had been lowered in the colonies and
possessions, the Privy Council continued to sit in England as the final court
of appeals of many Commonwealth countries including Malaysia. Judicial appeals
to this august body had been a part of the colonial judicial system. When the
British colonial empire was greatly expanded, it became necessary to make
adequate provisions for the determination of appeals from the colonies and
possessions. Consequently, in 1833, the Judicial Committee of the Privy Council
was reorganized to accommodate such appeals.
Its beginning was modest, but it quickly acquired a stature and respect
among common law lawyers for the quality of decisions. The first reported
decision to the Privy Council from Malaysia emanated from Straits Settlements
in the case of Yeap Cheah Neo v Ong Cheng Neo [1875] LR 6 PC 381.
In respect of the Malay States, its establishment followed the creation of the
Residential system when the territories became British protectorates. In
negotiations towards independence for Malay, it was agreed that a Commonwealth
Constitutional Commission should be appointed to make recommendations for a
constitution for the new nation. Headed by Lord Reid, a Lord of Appeal in
Ordinary, the Commission recommended, inter alia, that the Judicial Committee
should continue to hear appeals from local court. However, it recognized that
existing procedure governing appeals was not appropriate for an independent
country with its own monarch, given that a decision of the Privy Council took
the form of advice to the British monarch. In the event, article 131(1) of the
Federal Constitution was included to empower the Yang Di-Pertuan Agong to make
arrangements with Her Majesty for the reference to the Privy Council of appeals
from the Federal Court. In that arrangement, appeals would be made to the Yang
Di-Pertuan Agong who referred them to the Privy Council. A decision of the
Privy Council took the form of advice to the Yang Di-Pertuan Agong who would give effect to it.
Appeals on criminal and constitutional matters were not permitted from 1
January, 1978 and civil matters from 1 January, 1985. These changes were
effected through the Courts of Judicature ( Amendment ) Act 1976 and the
Constitution ( Amendment ) Act 1983. The Privy Council is now a defunct court
in relation to Malaysia, and the weight to be given to its previous decisions
has become a matter for Malaysian courts to decide. The Federal Court, being
the ultimate appellate court of the land, possesses the authority to take an
approach different from that taken by lower courts. It may decide to depart
from the previous decision of the Privy Council in a particular case whereas
lower court may feel bound by past decisions until the Federal Court has spoken
otherwise. The ability to depart from previous binding decisions of the Privy
Council is consistent with the sovereign status of Malaysia and the Federal
Court as its highest court.
In practical application, the situation is the best explained by
dividing the status of the Privy Council decisions into two periods; pre-abolition
and post-abolition. Prior to its abolition, its decisions were binding on the
Malaysian court in the following circumstances:
(1) If the law decided was given on appeal from Malaysia; or
(2) If the decision was given on appeal from another Commonwealth country,
the law was pari material or similar to that of Malaysia.
In the past, decisions of the Privy Council given on appeal from
Malaysia prior to its abolition were absolutely binding on Malaysian courts.
In the area of conflict between a decision of the Privy Council and that
of the House of Lords, the view had always been that the decision of the former
would prevail. When the opposite view was canvassed by counsel in a caes before
Justice Abdoolcader in the High Court, it was quickly dismissed with the
following statement:
“ Mr Mohideen in his final reply submits
that the decision of the Privy Council in Colonial Bank of Australasia v
Willan [1874] LR 5 PC 417 now must be considered as qualified by Animinic
Ltd v Foreign Compensation Commision [1969] 2 AC 147. I am astounded, to
stay the least, at the proposition so flagrantly flung in the face of the
decision of the House Lord, let alone obiter dicta at that can be held
to qualify, undermine or indeed virtually purport to overrule a decision of the
Privy Council…..
The precedent laid down and established by
the Privy Council in Colonial Bank of Australasia v Willan [1874] LR 5
PC 417 can be but a spring of mature wisdom from which I am bound to and must
necessarily drink, but that apart, I respectfully agree with the ratio
decidendi in that decision in its
entirety.”
It may be appropriate at this juncture to state that the House of Lords
decisions, being a part of the common law, may still be a source of Malaysian
law by virtue of section 3(a), (b) and (c) of the Civil Law Act 1956
subject, of course, to the various conditions provided in the same section, for
instance suitability to local circumstance.
The situation is altered with the abolition of appeals to the Privy
Council from 1 January, 1985. As previously stated, the current Federal Court
(and before it, the Supreme Court) is free to depart from the previous
decisions of the Privy Council, regardless whether they were on appeal from
Malaysia or other countries where the law was pari material although it
is unlikely to do so lightly. Whether it will do so in a particular case is a
matter for the Federal Court to determine.
In respect of courts below the level of the Federal Court, they are
bound to follow previous decisions of the Privy Council unless they have become
inconsistent with a decision of the Federal Court (or the defunct Supreme
Court) or they have been modified by legislation. Past decisions of the Privy
Council that were binding have become part of Malaysian jurisprudence, and
remain so unless altered by a competent authority.
The situation in Malaysia in regard to Privy Council decisions is not
much different from the same in Australia where appeals to that body were also
progressively removed, the process, began in 1968 and fully accomplished in
1986. In Viro v R [1978] 141 CLR 88, the Australian High Court, which is
the highest court, held that it was no longer bound by Privy Council decisions,
regardless whether they were given before or after the abolition of appeals to
the Privy Council.
The federal court
The federal court is the final court of appeal. As the highest court in
Malaysia, it is unclear whether it will hold itself bounds by its and prior
decisions, but if it follows the practice of highest court in most other
Commonwealth jurisdictions, its expected that it will retain a right of depart
from its own prior decisions in appropriate cases.
In Arulpgasan
a/l Sandaraju v Public persecutor [1997] 1 MLJ 1, the Federal Court
departed from its previous decision on the issue of burden proof on the grounds
that it had misunderstood the ratio of previous case. However, any
departure will be sparing in appropriate circumstances given the need for
certainty. In Tunde Apatria v Public Prosecutor [2001] 1 MLJ 259, the Federal
Court rejected the prosecution’s submission to depart from an earlier decision.
Subject to the foregoing
paragraph, in respect of decisions of the defunct Supreme Court (established 1
January, 1985) which it replaced, in most cases it will continue to follow its
decisions, including that of it predecessor, the defunct of Federal Court of
Malaysia. The Federal Court of old replaced by the Supreme Court on 1 January,
1985, which was set up when appeals in civil cases to the Privy Council were
abolished.[7]
The highest court has been reconstituted several times, causing in its wake, a
degree of confusion as to the binding force of previous decisions.
In the application of the doctrine of the precedents, decisions of the
Federal Court, like the Supreme Court before it and the defunct Federal Court
before the letter, are binding on all lower courts. This is by virtue of the
fact that it is the highest court.
The question of horizontal stare decisis is less than clear. If
pronouncements of the defunct Supreme Court are to be taken as a guide, it
appears that decisions given in its appellate role when sitting as a
constitutional court will be binding.. In its other appellate roles, judicial
view differ. From the judicial pronouncements, the position appears to be that
it will depart from previous decision, if necessary.
The old Federal Court of Malaysia had
regarded itself as bound by its own decisions in civil cases, subject to
exceptions to be elaborated upon later in this part, is well settled
Three exceptions to the general principle were elaborated upon in Lord
Greene’s judgement in Young v Bristol
Aeroplane Co Ltd, summarised as follows. First, when there is a conflict of
decisions, the court is entitled to decide which of the two conflicting
decisions of its own it will follow. Secondly, the court is bound to refuse to
follow a decision of its own which, though not expressly overruled, cannot
stand up with a decision of the House of Lords.
Thirdly, it is not bound to follow a decision given per incuriam, that
is, were the court has failed to take into account relevant legal principle or
statute. Per incuriam is the Latin expression for “through want of care” or
“through inadvertence” or “by mistake”.
The High Courts
The High Court in Malaya and the High Court in Borneo have equal and
co-ordinate jurisdiction. The position of a judge of the High Court in England
with regard to the doctrine of stare decisis.
Until the mid sixties the court in this country seems to have been bound
by decisions of a co-ordinate court. In P.N. Mohammad Ibrahim v. Yap Chin Hock
& Anor, the judge was Foong & Ors. v. Chop Thong Cheong, being a decision of a court of co-ordinate
jurisdiction. Again in Sundralingam v. Ramanatham Chettiar, MacIntyre J.
relying on the authority of Muhammad Ibrahim’s case, held himself bound
by the decision of a court of co-ordinate jurisdiction. On further appeal to
the Federal Court, the decision of the trial magistrate which was upheld
by MacIntyre J. was reversed. In the
cause of his judgement Azmi C.J. said:
“In his judgement MacIntyre J, expressed
the view that he was bound to follow the decision of Storr J, . . being a
decision of a court of co-ordinate jurisdiction sitting on appeal.”
On this question my view is that, he may
properly follow the practice in England where a High Court Judge, though he
cannot over-rule one of his brethen, could disapproved his decision and decline
to follow him.
Ong F.J. has this to say:
“Each court, of course, is bound by the
decision of courts above it, but individual judges are not bound by each
other’s decision, although judicial coursety naturally requires that they do
not lightly dissent from the considered opinion of their brethren”.
On the authority of Sundralingam’s case, the practice of stare decisis
in Malaysia Courts can be summed up in the following propositions:
1- Each court is bound by the decision of courts above it.
2- Courts of co-ordinate jurisdiction are not bound by each other’s decisions.
3- Only decisions of the High Court and above are quotable as law.
4- The Malaysian practise is similar to that of England.
Subordinate Court
The Session Court and Magistrates’ Court are subordinate courts. They
are bound by precedents laid down by the superior courts but their own
decisions are not binding on any court, given their lack of capacity to
established binding precedent.
PART 3 :
EXAMPLES THE CASES AND METHOD WITH THE
JUDGEMENT
3.3 Australian Conservation Foundation Incorprated vs. The Commonwealth
of Australia &
Others
3.4 Donoghue vs. Stevenson
CONCLUSION : EFFECTS
Advantages of Binding
Precedents
1. Consistency This refers to the fact that ‘like cases will be treated alike and are not subjected to the whims and fancies of individual judges. 2. Certainty Lawyers and their clients are able to predict what the outcome of particular legal questions is likely to be in the light of previous judicial decisions. Once the legal rule has been established in one case, individuals can orientate their behaviour with regard to that rule, relatively secure in the knowledge that it will not be changed by some later or lower court. 3. Efficiency Cases to some extent are predictable and save time of the judiciary, lawyers and their clients for the reason that cases do not have to be reargued. At such would be much less costly for the parties to the dispute or for the prosecution and defendants. 4. Detailed rules Case laws respond to real situation. Case laws shows detailed application of law to various circumstances and are more informative than statutes which are basically theory and logics. 5. Flexibility Law need to be flexible to meet the needs of the ever changing society and case laws can make changes faster than parliament. There are various mechanisms by means of which judges can manipulate the Common Law provide with an opportunity to develop law in particular areas without waiting for Parliament to enact legislation. Example is the case of Airedale NHS Trust v Bland [1993] on the question of whether a life support machine should be switched off when a person was in a persistent vegetable state. Although it will contravene the Human Rights Act (the right to live), the House of Lords allowed the termination. In Re: A [2000], it dealt with the question whether a Siamese twin would be separated by an operation when the hospital recommended this, but where the parents had expressed clearly their objection. Here again, the House of Lords allowed the operation to proceed.
Disadvantages of Binding
Precedent
1. Complexities and voluminous Hundreds of thousands of decided cases comprise many thousands of pages of law reports and more added all the time. Judgments are very long, and not readable and the ratio decidendi are difficult to find. It is also difficult to pinpoint clearly the appropriate principles laid by judges for each of the decision of each case. 2. Distinguishing by judges Judges are allowed to distinguish a binding precedent on the case before them if they consider the principles of the binding precedent to be inappropriate. This leads to mass number of cases establishing different precedents in varying circumstances which further complicates the Common Law. 3. Unpredictability If too many kind of illogical distinctions are made, it is impossible to make out which precedent will be applied. 4. Rigidity and fixity Judges have to follow a binding precedent even though they think it is bad law or inappropriate. Bad judicial decisions may become ossified on the basis of an unjust precedent, with the consequences that previous injustices are perpetuated for a long time before another similar case gets to a court high enough to overrule them. 5. Unconstitutional Case laws are judicial decisions and the fundamental question refers to the fact that the judiciaries are overstepping their theoretical constitutional role by actually making law rather than applying it. Law reforms also give rise to the question as to how the law is to develop and change to cater for changed circumstances if cases are always to be decided according to precedent. 6. Dependence on chance Case law changes only in response to those who had brought them through the various court hierarchies, that is, from High Courts to the Court of Appeals and then to the House of Lords. Only when a case is pushed far enough to the highest hierarchy of Appeal Courts would a new precedent be created.
References
1.
Abdul Monir b. Yaakob. 1989. An Introduction to Malaysia law.
Cetakan Pertama. Bangi: Universiti Kebangsaan Malaysia.
2.
Wu Min Aun. 2005. The Malaysian
Legal System. Third Edition. Kuala Luhuhhumpur: Pearson Malaysia Sdn. Bhd
3.
________. 2010. Federal Constitution. Petaling Jaya: International
Law Book Servises
6.
http://nuweb.northumbria.ac.uk/bedemo/Sources_of_English_Law/page_10.htm
[1]
Federal Constitution, article 150(2B)
[2] Wu
Min Aun. 2005. The Malaysian Legal System. Third Edition. Kuala Lumpur:
Pearson Malaysia Sdn. Bhd. p. 67
[3] Wu
Min Aun. 2005. The Malaysian Legal System. Third Edition. Kuala Lumpur:
Pearson Malaysia Sdn. Bhd. p. 144
[4]
Stare decisis: To stand upon decisions
[5]
[1966] 2 MLJ xi.
[6] PP
v Datuk Tan Cheng Swee & Anor [1980] 2 MLJ 277
[7]
Appeals to Privy Council in criminal and constitutional cases were abolished as
from 1 January 1978.
|
Tuesday, 25 February 2014
THE DOCTRINE OF JUDICIAL PRECEDENT AND ITS IMPLEMENTATION IN MALAYSIA
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