What is “law”?
That is both a philosophical and practical question that law students and legal practitioners ask themselves.
Often people think it’s the written law: Acts of Parliament or Congress, Ordinances and Enactments of the State Legislative Assembly, and Emergency Ordinances. Sometimes you’d throw in subsidiary legislation and statutory instruments into the mix: regulations, rules, and orders.
Court cases matter too, especially in common law countries like the United States, the United Kingdom, Australia, New Zealand, Singapore, and Canada. Malaysia practices a plural system. A hybrid of secular law at the national level coupled with Shariah law and customary law unique to each State (especially in East Malaysia). We inherited common law and equity from the British; since the 1950s, we developed our own.
How does it work? How can one make sense of the relationship between cases?
Role of the Courts
In Malaysia, Parliament and the State Legislative Assemblies pass the laws. The Executive enforces these laws. But sometimes there are disputes. These disputes could arise from dissatisfaction with the enforcement of those laws.
This is where the Courts come in. The Malaysian Judiciary would hear and decide upon these disputes. Sometimes the Bench needs to interpret these statutes.
In other instances, there are areas where the law is quiet or silent. Think of torts as an area. There are laws regulating the conduct of members of the society with each other. Not all of these laws are statutory. Duty of care is one good example. A 1932 Scottish case made us responsible for our actions and omission (Donoghue v Stevenson  AC 562). As brilliant as the learned judges were, they did not solve every conceivable problem once and for all. After that, the Courts continue to refine the neighbour principle. The Court formulated a test in Anns v Merton London Borough Council  AC 728. Then came the 3-part test in Caparo Industries PMC v Dickman  ALL ER 568.
It was the Courts, not Parliament, that included the duty of care concept into Malaysian common law. The Caparo test was brought in through the High Court’s decision in Uniphone Sdn Bhd v Chin Boon Lit & Anor  6 MLJ 441.
Doctrine of Judicial Precedent
The doctrine of judicial precedent is a familiar concept for legal practitioners across the world. It creates certainty and consistency within a legal system.
Like its counterparts across the common law world, the Malaysian Courts have a hierarchy. The Federal Court is the apex court. The Court of Appeal comes next. Finally, comes the High Court in Malaya and the High Court in Sabah and Sarawak. These three-tiered courts make up Malaysia’s superior courts. There are subordinate courts: the Sessions Court and the Magistrates Court. These courts are collectively dubbed the “civil courts”. Altogether they hear both the civil and criminal matters.
We’ve seen many publications compiling these decisions over the years like the:
- BLR: Borneo Law Reports
- CLJ: Current Law Journal
- MLJ: Malayan Law Journal
- AMR: All Malaysia Report
Judicial precedent operates in two modes:
- Vertically: Top-down
- Horizontally: Bound by its own past decision or by a court of equal status
Let’s go to the corporate world for a moment.
You’re a Sales Executive with thirty years of experience and servicing the Malaysian, Singaporean, and Indonesian markets. You report to a Sales Manager who oversees Southeast Asia. In turn, your manager reports to the Director of Sales in charge of Asia-Pacific. The Director happens to be close to a major client in Jakarta. Yes, their relationship is strictly professional. He agreed that that client would get “first dibs” of new inventory. Can you, the Sales Executive, push the client to the end of the queue in favour of a Singaporean client? What happens if you did it and your Director finds out?
We may add that it does not augur well for judicial discipline when a High Court judge treats the decision of the Supreme Court with little or no respect in disobedience to the well-entrenched doctrine of stare decisis. We trust that the occasion will never arise again when we have to remind High Court judges that they are bound by all judgments of this court and of the Federal Court and they must, despite any misgivings a judge may entertain as to the correctness of a particular judgment of either court, apply the law as stated therein.Gopal Sri Ram JCA in Periasamy s/o Sinnappan & Anor v Public Prosecutor  2 MLJ 557
In the quotation, the Court of Appeal overturned the decision of the High Court. The High Court sat as an appellate court that heard the appeal against the decision of the Sessions Court.
The Federal Court, too, emphasised that the “principle of stare decisis requires more than lip-service” (per Chang Min Tat FJ in Public Prosecutor v Datuk Tan Cheng Swee & Anor  2 MLJ 276).
When a higher court made a decision, it binds current and future decisions of the lower courts. Recall the hierarchy of courts I mentioned:
- Federal Court (formerly the Supreme Court)
- Court of Appeal
- High Court in Malaya or High Court in Sabah and Sarawak
- Sessions Court
- Magistrates Court
One doesn’t just go to a superior court to have their cases heard. As superior as the Federal Court may be, it does not have original jurisdiction except in limited circumstances (Art. 121(1)(2)(b), Art. 128, & Art. 130, Federal Constitution).
The horizontal operation of judicial precedent can be confusing for many. In Malaysia, one has to take note of when the phase was. For simplicity, let’s focus on the phase we are in.
A. Federal Court
The Federal Court was bound by its past decisions, and the decisions of the Supreme Court of Malaysia, on criminal matters. The Federal Court is “strictly guided by the principle of stare decisis” (per Mohamed Azmi FCJ in Tan Boon Kean v Public Prosecutor  3 MLJ 514).
When it comes to civil matters, the Federal Court had more flexibility:
In considering this question, we have kept in the forefront of our minds the salutary advice of the House of Lords (Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Brightman, Lord Ackner and Lord Goff of Chieveley) in Food Corp of India v Antclizo Shipping Corp  2 All ER 513, that there are two prerequisites to a review by the House; first, the House of Lords should not embark on such a review unless they feel free, if necessary, to depart from the reasoning and the decision and secondly, unless the House is satisfied that it would be of relevance to the resolution of the dispute in the case before them. Their Lordship stressed that they would not embark on an inquiry into an issue which is only of academic interest: see, in particular, Sun Life Assurance Co of Canada v Jervis  1 All ER 469 and Ainsbury v Millington  1 All ER 929: a fortiori, they should not do so where the inquiry involves a review of a previous decision of the House, because it cannot be right to hold, obiter, that such a previous decision was wrong (per Lord Goff at p 516c-d).Per Edgar Joseph Jr FCJ in Malaysian National Insurance Sdn Bhd v Lim Tiok  2 MLJ 165 – Emphasis Added
In simple English, the Federal Court would revisit its position if:
- It is necessary to depart from the reasoning and the decision;
- The departure would resolve the dispute they are hearing.
There is also another case to consider: Public Prosecutor v Kok Wah Kuan  1 MLJ 1:
The doctrine of binding judicial precedent exists to promote the principle of justice that like cases should be decided alike. It also seeks to ensure certainty, stability and predictability in the judicial process. There can be no denying that the existence of this doctrine imposes some rigidity in the law and limits judicial choices. But one must not ignore the fact that some flexibility and maneuverability still exist.
Though a superior court is generally reluctant to disregard its own precedents, it does have the power ‘to refuse to follow’ its earlier decisions or to cite them with disapproval. Our Federal Court has, on some occasions, overruled itself. High Court judges occasionally refuse to follow other High Court decisions. An inferior court can maneuver around a binding decision through a host of indirect techniques.Richard Malanjum CJ (Sabah and Sarawak) – Emphasis added
Where does this leave us?
The Federal Court holds itself to its past decisions. That does not mean Malaysia’s apex court cannot revisit its past decision as noted by the then Chief Judge of Sabah and Sarawak.
B. Court of Appeal
Unlike the courts above and below it, the Court of Appeal came into existence in 1995. A constitutional amendment was made in 1994 – the Constitution (Amendment) Act 1994 (Act A885). Art. 121(1B) was inserted to create our very own Mahkamah Rayuan.
In Kumpulan Perangsang Selangor Bhd v Zaid bin Haji Mohd Noh  1 MLJ 789, Gopal Sri Ram JC (as he was then) wrote:
First, although Rama Chandran was decided by a majority, it is nevertheless a decision of this court. Contrary to any view that may be held in any quarter, this court is bound by its own decisions, whether arrived at unanimously or by a majority. And the correctness of the decisions of this court may not be called into question save and except before a larger bench of this court specially convened by or upon the direction of the Chief Justice. It is therefore not open for one division of this court to reverse the decision of another division given in an earlier case. If a contrary situation be permitted, then no decision of the apex court will be safe as precedent and uncertainty in the law will prevail. For like reasons, the Court of Appeal is bound by its own decisions. See Hendry v De Cruz  MLJ (Supp) 25.Gopal Sri Ram JC (as he was then) in Kumpulan Perang Sang Selangor Bhd v Zaid bin Haji Mohd Noh  1 MLJ 789 – Emphasis added
The decision was confirmed again in Kesultanan Pahang v Sathask Realty Sdn Bhd  2 MLJ 701. Before we go further, you should know that the case went on to the Federal Court. The Federal Court overturned the Court of Appeal’s decision in Kesultanan Pahang v Sathask Realty Sdn Bhd  2 MLJ 513. The basis of the overturning or overruling was the error in interpreting the term “person” in s 6(i)(b) of the Sultanate Lands Enactment 1919 of Pahang (FMS Cap 221). The Federal Court did not rule on whether the Court of Appeal is bound by its past decisions.
C. High Court
There are two High Courts in Malaysia of “co-ordinate jurisdiction and status” (Art. 121(1), Federal Constitution). The High Court in Malaya has jurisdiction over West Malaysia. Across the South China Sea, the High Court in Sabah and Sarawak oversees legal matters in East Malaysia. Each High Court has its own Chief Judge: the Chief Judge of Malaya/Hakim Besar Malaya (abbreviated as “CJ (Malaya)”) and the Chief Judge of Sabah & Sarawak/Hakim Besar Sabah dan Sarawak (abbreviated as “CJ (Sabah & Sarawak)”). The judges and judicial commissioners (abbreviated as “J” and “JC” respectively) assigned to either High Court is not bound by each other’s decision.
“Do High Court decisions bind each other?” This question was answered by the Federal Court in Sundralingam v Ramanathan Chettiar  2 MLJ 211. The dicta of the two Federal Court judges are as follows:-
In his judgment MacIntyre J. expressed the view that he was bound to follow the decision of Storr J. in the case cited by him, being a decision of a court of co-ordinate jurisdiction sitting on appeal.
On this question my view is that, we may properly follow the practice in England where a High Court Judge, though he cannot over-rule one of his brethren, could disprove his decision and decline to follow him. This to my own knowledge has been the practice in Malaya for several years now.Azmi CJ (Malaya)
Being bound by authority, the learned magistrate gave judgment in the respondent’s favour. It was affirmed by the High Court at Ipoh on appeal, although with extreme reluctance, but MacIntyre J. felt himself bound to follow the decision of a court of co-ordinate jurisdiction by reason of what certainly was not obiter dicta expressed by Wilson J. to that effect in Mohamed Ibrahim Yap Chin Hock  MLJ 127. This case was cited to the learned judge as authority which he could not disregard and he was persuaded into that view. The result then is the present appeal.
Each court, of course, is bound by the decisions of courts above it, but “individual judges are not bound by each other’s decisions, although judicial courtesy naturally requires that they do not lightly dissent from the considered opinions of their brethren”: see Law in the Making (6th Ed.) p. 231. I do not think I can usefully add anything to what Sir Carleton Allen said, except to point out that, within the past decade and even the last lustrum, judges in Malaya have, on several occasions respectfully agreed to differ, as may be seen from the reports in The Malayan Law Journal.Ong Hock Thye FJ
What can we conclude? When it comes to the High Court, the judges and judicial commissioners have some flexibility. They are not bound by their past decisions nor are they bound by the decision of their peers. Instead, the decisions of their peers could be persuasive.
Binding or Persuasive?
Judicial precedent, or stare decisis, is the doctrine where the Court must follow a past decision when the facts are the same. It operates vertically (top-down) and sometimes horizontally (equal standing/among peers/of its own).
We ended the last section with another term “persuasive”. Persuasive decisions are used by students and practitioners to strengthen their arguments, especially within a conflicting or uncharted area. The Courts are not required to follow these persuasive decisions or arguments.
So far you discovered that the Federal Court and the High Court are not bound by previous decisions of the same level. The High Court is obviously bound by the Federal Court’s decision. What happens when the Federal Court has two different decisions on similar cases? Or when the majority agreed with the same party but different decisions?
Court decisions are not single sentences. In my entries on defamation (starting with this post), you may notice me quoting judgements by various judges. Within those judgements are other citations. Why do the judges do that?
When the Court delivers its judgement, it must explain how it came to that judgement. Some cases are a couple of A4 pages long. Some cases – especially by the Trial judge or by English judges – can span dozens of pages per judge.
What the learned judges are doing is to draw out the legal principles. Each principle would be supported by two or more reasonings. Sometimes you find counterarguments included. In this blog entry alone you’ve seen some of it. That’s because during the hearing, the lawyers present their arguments based on these cases. The Bench needs to defend why one applies and not the other. Otherwise, they risk their decisions being overturned during an appeal.
The legal reasonings are what law students and legal practitioners know as ratio decidendi. Think of those “If Premise 1 and Premise 2, then Conclusion” philosophical arguments.
Can a judge include their opinions in their judgement? Yes, but it is often related to or stemming from the case. These are known as obiter dicta. It could be a hypothetical situation or something said in passing.
In Carlill v Carbolic Smoke Ball Company  1 QB 256, the court deliberated on whether the advertisement by the respondents (Carbolic Smoke Ball Company) constituted an offer. Bowen LJ’s judgement included an unrelated anecdote:
If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course [not]!Bowen LJ in Carlill v Carbolic Smoke Ball Company  1 QB 256
- Binding: A previous decision must be followed;
- Persuasive: A previous decision may be followed, but it can be ignored or discarded. An obiter in a majority judgement. A minority dissenting decision.
Decisions of Non-Malaysian Courts
From 1985, the (Judicial Committee of the) Privy Council ceased to be the highest appellate tribunal for Malaysia. Until 31 December 1984, its decisions on appeals from Malaysia bind Malaysian courts.
What about cases from other countries heard by the same committee?
These cases are persuasive, but not binding.
There are exceptions.
Specifically, where the statutory provisions in that third country are similar to statutory provisions in Malaysia, the decision of the Privy Council binds Malaysian courts (Khalid Panjang & Ors v Public Prosecutor (No. 2)  30 MLJ 108 & Director-General of Inland Revenue v Kulim Rubber Plantations Ltd  1 MLJ 214).
Terms to Look Out for in Judicial Decisions and Law Reports
Congratulations on surviving all the way to the end!
I had a conversation with a friend recently: being a law student isn’t just about reading the statutes. Truth be told, you don’t need to spend time in law school if you’re just going to read statutes. I read the Federal Constitution cover to cover by the age of 14. By 15, I have no idea how many times I read and re-read the U.S. Constitution. What’s to say you cannot do the same?
If I were to summarise the experience so far, I would say being a law student is, among others, knowing how to:
- Find the primary and secondary sources of law;
- Analyse and synthesise the secondary sources of law to primary sources of law;
- Step away from what the law is and what it should be and applying it to practice;
- Appreciate how the law operates – even in the microseconds (think of contracts being made over the counter);
- Make sense of lengthy and seemingly unconnected reasonings and justifications.
With that last point, let me bring your attention to this slide I created:
I won’t elaborate on the slide further. (I’m sure you’re mentally exhausted by this point.) I reckon you’re having now, you’ve actually seen me use some of these terms in this post alone.
With these keywords, you should be able to identify how one case – especially the case that you’re reading now – relate to other cases referred to in the judgement.
Remember, while some decisions may be overturned or reversed, it may not render other parts of the decision inapplicable. If you ask me, that adds a whole new dimension to reading law.
Before we end this entry, I have to say: reading case law is fun when you’re not pressed for time. I personally use the Wikipedia reading approach. You start with one case. Then you look up other citations within that case. When you can, you see where other/latter cases refer to the case at hand. Again, don’t do this when you’re rushing to cram for your exams. Do it when you’re not under pressure. Just as you would click on the in-text links of Wikipedia that leads to another cluster of tabs.
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