TOPIC 7 - 8 Judicial Precedent
TOPIC 7 - 8 Judicial Precedent
cases
Statutes
Literary
sources
Role of a judge in interpreting the statutes
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:
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?
Theory: ratio is
distinct from
dictum
Practice: very
difficult to
In contrast with ratio decidendi:
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.
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Relevant only to the
case decided by the
ct and no binding effect
for any future case
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