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Doctrine of Judicial Precedent: How It Works?

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noor fadhzana mohd noor

on 26 June 2015

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Transcript of Doctrine of Judicial Precedent: How It Works?

Definition of Judicial Precedent
Binding Effects
How Does It Work?
Stare Decisis: Malaysian Judicial System Context
Limitation of Binding Effect
It is well recognised that judges do not make law, not in the same way as the legislature. But, the whole process of judgement do require the judge to make law.

Judges make law in two ways:

Applying an established rule or principle to a new situation;
Interpreting statutes enacted by the Parliament, since statutes are rarely self-contained (Judges have to decide on validity of statutes and interpret them)
When a case been brought to a court, the first thing to be established are the facts of the case. Once the facts are established, the judge will apply the law to determine which litigant should succeed. This is where the doctrine of stare decisis will control the judge's decision.

In coming to a decision of which precedent is binding, the judge must concentrate on two main factors;
1) The origin of the precedent;
2) The contents of the precedent; the ratio decidendi.

Judicial Precedent or Binding Precedence or Doctrine of Stare Decisis

A precedent is defined as a judgment or decision of a court of law cited as an authority for the legal principle embodied in its decision. The practice of following precedent is known as stare decisis.

To follow a precedent of a superior court is binding on every lower court, and subject to certain circumstances, binding on its own.
Khalid Panjang & Ors v PP (1964) 30 MLJ 108

Held: The decision of their Lordships (Privy Council) in the case of Mirza Akbar v The King Emperor is binding on the Federal Court and is also binding on every High Court in Malaysia. No judge is at liberty, whatever his private opinion may be, to disregard it.

Apart from what has been outlined above, Malaysian court had experienced some departure from the stipulated binding effect.

In PP v Adnan bin Khamis (1965) 31 MLJ 103 stated,
"If the decision in Young v Bristol Aeroplane Co. Ltd. is applied, I would say, in applying the doctrine in Malaysia, that the decision of the Federal Court on questions of law must be followed by the court of the first instance and would be regarded by the Federal Court as binding on itself until reversed..."
Three exceptions to the general principle of stare decisis, which was elaborated by Lord Greene in Young v Bristol Aeroplane Co. Ltd;

1) When there is a conflict of decisions, the court is entitled to decide which of the two conflicting decisions of its own it would follow;
2) The court is bound to refuse to follow its own decision, though not expressly overruled, cannot stand up with the decision of the House of Lords (Federal Court, in the context of Malaysia currently;
3) The court is not bound to follow a decision given in per incuriam.
Definition of Judicial Precedent
Binding Effect of Judicial Decision
How Does It Works?
What are the Limitations of Its Application?

Doctrine of Judicial Precedent: How It Works?
Hierarchy of Precedents

Goes back to three different court structures i.e. the recent, prior to 1st January 1987 and 1st January 1987-23rd June 1994

The recent consists of Federal Court, Court of Appeal, High Court and Subordinate Courts
Prior to 1st January 1987
Privy Council (civil cases only)
Federal Court
High Court (Malaya)
High Court (Borneo)
Session Court
Magistrates' Court
Penghulu's Court
Session Court
Magistrates' Court
Penghulu's Court
Period of 1st January 1987- 23rd June 1994
Supreme Court
High Court (Malaya)
High Court (Borneo)
Shariah Court
Native Court
Session Court (Malaya)
Session Court (Borneo)
Magistrates' Court
Magistrates' Court
Small Claims Court
Small Claims Court
Penghulu's Court
In Hendry v Cruz (1949) 15 MLJ Supp 25, Lord Willan said;

The answer to the question whether we are bound by the previous decision of the Court of Appeal in the Butler-Madden v Krishnasamy case depends on whether the Court of Appeal in England is bound by its own decisions.. The question whether the Court of Appeal in England should be bound to follow its own decision remained in doubt until 1944 and was then settled by the case of Young v Bristol Aeroplane Company Limited [1944] 1 K.B. 718..

In Young v Bristol Aeroplane Co. Ltd [1944] KB 718, Lord Greene stated;

" We have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those courts of co-ordinate jurisdiction."
Per incuriam is,

where the court has failed to take into account relevant legal principle or statue.

Per incuriam literally means 'by mistake' or 'through inadvertence' or 'through want of care'
Refer PP v Ooi Khai Chin & Anor [1979] 1 MLJ 112, PP v Tai Chai Geok [1978] 1 MLJ 166
However, in the case of Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12, Abdul Hamid CJ said that the Supreme Court may depart from its previous decisions;

"...I would say that while the Supreme Court will not review its own decision, it may, however, where necessary, depart from a previous decision, though it will not, of course, lightly do so..."
Hashim Yeop Sani SCJ echoed the same seniment, in the same case, where he cited;

" In this country too, the appellate court has been known to reverse its previous decisions as shown ini PP v Ooi Khai Chin & Anor [1979] 1 MLJ 112 where the Federal Court reversed its previous decisions in PP v Tai Chai Geok [1978] 1 MLJ 166 on the question of interpretation of jurisdiction..."
The origin of the precedent refers back to the hierarchy of precedent.

It goes back to the current hierarchy of court in Malaysia as well as those prior to 1987 and 1994, as discussed before.

For example, decisions of the Federal Court, like the Supreme Court before it and the defunct Federal Court before the latter, are binding on all lower courts, and subject to what previously discussed the horizontal binding effect of precedent e.g. Federal Court bound by its own previous decisions.
The contents of the precedent, or the ratio decidendi refers to the legal reasoning;

In the case of Donoghue v Stevenson [1932] AC 562, which is commonly known as the " Snail in the Bottle" case. The ratio decidendi established is;
" A manufacturer of products owes a duty to the consumer to take reasonable care in the manufacture of products. If a consumer in injured as a result of the negligent act of the manufacturer, the latter is liable"

Although the case is a tort proceeding made by a consumer who consumed a bottle of ginger ale and suffered diarrhoea as a result of the presence of a decomposed snail in the bottle, still the ratio decidendi or the legal reasoning is inexhaustive, and relevant to other negligence cases between a manufacturer-consumer, even with different material facts, such as clothing, services etc (as analogous to the bottle of ginger ale), and physical injuries, financial loss etc (as analogous to the diarrhoe).

The width of the ratio decidendi is to be decided by the current court.
Ratio decidendi is therefore defined as 'the rationale of the decision that becomes a rule of law on which a judicial decision is based'

Obiter Dictum is on the other hand is an opinion of a judge on a question of law not directly relevant to the case before him. It is in fact a plural term for obita dicta.

Obiter Dictum is thus defined as an observation or opinion of uttered by a judge in a case, or written judgment, although form part of the case, it is not included as a basis of judgement and thus has no binding effect as a precedent.

Thank You.
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