LEGAL METHOD - DOCTRINE OF STARE DECISIS IN MALAYSIA COURTS

GROUP 3 (SECTION 2)

1985-1994
1994-NOW

PRE 1985
PRIVY COUNCIL

SUPREME COURT

FEDERAL COURT

HIGH COURT HIGH COURT

(MALAYA)

(BORNEO)

FEDERAL COURT

COURT OF APPEAL

HIGH COURT HIGH COURT

(MALAYA)

(BORNEO)

HIGH COURT

HIGH COURT

(MALAYA)

(SABAH AND
SARAWAK)

Stare decisis literally translates as to stand by decide matters or to stand by decisions and
not to disturb settled matters.
Under the doctrine of stare decisis, the decision of higher court within the same provincial
jurisdiction acts as binding authority on a lower court within the same jurisdiction. The
decision of a court of another jurisdiction only acts as persuasive authority. The degree of
persuasiveness is dependent upon various factors, including first the nature of the other
jurisdiction. Second, the degree of persuasiveness is dependent upon the level of court, which
decided the precedent case in the other jurisdiction. Other factors include the date of
precedent case on the assumption that the more recent the case, the more reliable it will be as

authority for a given proposition and on some occasions, the judges reputation may affect the
degree of persuasiveness of the authority.
Based on diagram above, Malaysia went through three different judicial systems starting
with pre 1985, followed by 1994 until what we have now. In the first era, Privy Councils
decisions are binding on all courts in Malaysia. The inferior courts should follow what has
been decided in the Privy Council. Decisions of Federal Court bind the lower courts in both
civil and criminal cases. The High Court was further divided into two, which are Malaya
High Court and Borneo High Court. Decisions of the Malaya High Court are binding on all
the Subordinate Courts in the Peninsular Malaysia while decisions in Borneo High Court are
binding on all the Subordinate Courts in Sabah and Sarawak.
Moving to the second era where we have the Supreme Court as the highest court. The
decisions of the Supreme Court are binding on all those courts below it. This is followed by
the High Court, which is divided, into two: Malaya and Borneo. The High Court can revise a
subordinate courts decision in criminal and civil cases while the Supreme Court will review
cases reserved by the High Court, However, in 1994, a change took place in judiciary when
parliament amended Federal Constitution. The Federal Court of Malaysia became the highest
judicial authority and the final court of appeal in Malaysia making the decisions of the
Federal Court bind upon all the lower court. In addition, the Federal Court hears appeals of
decisions both civil and criminal from the Court of Appeal. The Court of Appeal is then
followed by the High Court.
Within these three eras, the courts in Malaysia have gone through reorganization ever since
the Privy Council had been abolished at the end of 1984. Due to this, each re-organization
leaves an unclear impression, whether there is a newly created court with a new jurisdiction
or merely the renaming of courts and a successor of the predecessor courts.

TERMINOLOGY
Stare decisis:
A bid by the decisions, a Latin phrases meaning to stand by decided cases; to uphold
precedents; to maintain former adjudications. To stand by things decided; to abide by
precedents where the same point of law has been settled by decision, it forms a precedent
which is not afterwards to be departed from.
Pari Material;
Having the same matter, text or on the same subject: laws pari material must be construed
with reference to each other.
Per Incurium;
A Latin word which means through lack of care. A decision of a court is made per incurium if
it fails to apply a relevant statutory provision or ignores a binding precedent.
Res Judicata;
A judicially decided matter. The rule that if a dispute us judged by a court of competent
jurisdiction, the judgement of the court is final and conclusive as the right and duties of the
parties involved. Res Judicata constitutes an absolute to a subsequent suit for the same cause
of action. The rule applies only when the issues sued for a cause of action, person, and parties
to the action are the same as in the original action. Res Judicata applies by operation of law,
rather than discretion of the court.

In Curia;
In Roman law, curia was the assembly place of curiae, ancient divisions of the Roman
people said to have been made by Romulus1. It also became the meeting place of the Roman
Senate as well as a number of the other corporations and under the Empire of Senate House
of a province. During the Middle Ages 2 the term referred to the sovereigns retinue or
household and to judicial tribunals within the sovereigns palace for example, the Curia
Regis, the term then came to be used more widely in relation to courts in general.
Courts of coordinated jurisdiction:
Coordinate jurisdiction means more than one court has the authority to hear a case and make
a determination on the outcome of the case. Coordinate jurisdiction exists in court systems
where there are multiple courts.

1 Founder of Rome
2 The Middle Ages is the middle period of the three traditional divisions of
Western history: Antiquity, Medieval period, and Modern period.
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OPERATION OF THE DOCTRINE OF STARE DECISIS3 4 5

The doctrine of stare decisis, therefore, has a two-way operation. Firstly, the vertical
operation of the doctrine is, in theory, straightforward. A court is bound by the prior decision
of all courts higher that itself in the same hierarchy. In Malaysia, the decisions of the Federal
Court, acting as the highest tribunal Court of Appeal, binds upon all lower court. Reversely,
the subordinate courts decisions are not binding upon the Federal Court. Secondly, the
horizontal operation of stare decisis which in Malaysia, it is much more complicated to its
vertical operation. This requires examination of the three phases, which the hierarchical
structure of the courts had gone through.
The decisions of the Privy Council, being the apex court in the hierarchical structure of the
courts in Malaysia, would bind all courts lower in the hierarchy. However, this is limited to
Privy Council decisions an appeal from Malaysia in the case of Wong See Leng v
Saraswathy Amal6 and from other common law jurisdictions where the law in pari material
with Malaysian law. Thompson LP made the principle clear in the case of Khalid Panjang &
Ors v Public Prosecutor7. In the case of Director General of Inland Revenue v Kulim
Rubber Plantation Ltd, the Privy Council is not bound by its own decisions.

3 Arfah Hamzah Wan, and Ramy Bulan. An Introduction to the Malaysian Legal
System. Shah Alam, Selangor Darul Ehsan: Fajar Bakti, 2003
4 Wu, Min Aun. The Malaysian Legal System. 3rd ed. Selangor Darul Ehsan:
Longman, 2005
5 Sharifah Suhana Ahmad. Malaysian Legal System. Kuala Lumpur: Malayan Law
Journal, 1999
6 [1954]20 MLJ 141
7 [1964] 1 MLJ 67
5

The federal courts position in civil cases would be analogous to that of the Court of Appeal
in England. Thus, decisions of the Federal Court would bind all inferior courts, and the
Federal Court would be bound by its own decision of the Privy Council. The Federal Court
would be bound by its own decisions of its predecessor courts and courts of coordinate
jurisdiction. In Central Securities (Holdings) Bhd v Haron bin Mohamed Zaid 8, the Federal
Court held that it was bound to follow its own previous decision; however, there are two
exceptions in Young v Bristol Aeroplane Co Ltd 9. In this case, the judges are bound to follow
these two earlier Federal Court decision, unless the judges believe that they have been
wrongly decided and merely per incurium. Meanwhile, in criminal cases, the Federal Court
would be bound by the decision of Privy Council, while its decisions in criminal cases would
bind all inferior courts. The Federal Court was also bound by the decisions of courts of coordinate jurisdiction, and its predecessor court. In the case of Oie Hee Koi v Public
Prosecutor10, we can see that Federal Court was not bound by its own previous decision.
Decisions of the High Court would bind all subordinate courts. In Malaysia, High Court
judges have acted on the assumption that High Court judge whether exercising appellate r
original jurisdiction is not bound by a decision made by another. For example, in Ng Hoi
Cheu & Anor v Public Prosecutor11. Likewise, in Joginder Singh v Public Prosecutor12, the
High Court held it was not bound to follow a decision of the High Court. In addition, the
practice of the High Court as discussed remains unchanged until today.
8 [1980]1 MLJ 304
9 (1944) KB 714
10 [1966]2 MLJ 183
11 [1959]25 MLJ 20
12 [1984] 1 MLJ 53
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In Lorraine Esme Osman v Attorney General 13, the Supreme Court appeared to be of
opinion that it ought to be bound by its own previous decision, unless it was shown that such
decision was wrongly decided. Since Supreme Court and Privy Council are in similar level,
the Supreme Court may follow the decision of Privy Council and mat not to do so if they fall
a new decision need to be made (persuasive). Meanwhile, Supreme Court is clearly not
binding with the Federal Court since they are at different level at the apex. Moreover, Federal
Court is lower than Supreme Court which is not binding.
In Government of Malaysia & UEM v Lim Kit Siang 14, a complex case that brought forth an
equally complex judgement because the principle of res judicata was so intertwined, and
confused, with the principle of stare decisis. On the issue of locus standi was not a definitive
or conclusive one, and that there was nothing in the earlier oral judgement which inhibited
the court from considering the issue of locus standi again.
Decisions of the Federal Court would now be binding upon al courts lower in the hierarchy.
In Harris Solid State (M) Sdn Bhd v Bruno Gentil 15, counsel tried to argue before the Court
of Appeal that the view expressed by the majority of the Federal Court in the case of R Rama
Chandran v Industrial Court of Malaysia & Anor16 was wrong and ought not to be followed.
The Court of Appeal expressed its disagreement and clearly stated:
.This court is bound to follow and apply the law as stated by the majority in Rama
Chandran, even if it suffers from any infirmity. It is a decision of the apex court and
constitutes binding precedent.

13 [1986] 2 MLJ 288

14 [1988] 2 MLJ 12
15 [1996] 4 CLJ 747 (CA), 3 [2002] 4 CLJ 105 (FC)
16 [1997] 1 MLJ 45
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Moreover, in civil matter, the Federal Court does not regard itself bound by the decisions of
the Supreme Court. This can be seen in Malaysian National Insurance Sdn Bhd v Lim
Tiok17. Besides, in Food Corporation of India v Antclizo Shipping Corporation 18, there are
two prerequisites, the judge should not embark on such a review unless they feel free. If
necessary, to depart from the reasoning and the decision and they are satisfied that it would
be of relevance to the resolution of the dispute in the case before them that having been
satisfied in the instant case. In contrast, in criminal matters, the Federal Court holds itself
bound by decisions of the Supreme Court which is in the case of Tan Boon Keau v Public
Prosecutor19.
The present Federal Court is not bound by its own previous decisions on Dalip Bhagwan
Singh20, the Federal Court expressed its view that although the Practice Statement (Judicial
Precedent) 1966 issued by the House of Lords was not binding on the Federal Court, it had,
in practice been followed by the Federal Court and its forerunner, the Supreme Court. The
principle it would appear is that the power to depart should be exercised sparingly. The power
to depart would be indicated when a previous decision sought to be overruled was wrong,
uncertain, unjust outmoded or obsolete in modern condition.
With regard to the Court of Appeal, it does not have any predecessor. It was first established
in this present era. In Kesultanan Pahang v Sathask Realty Sdn Bhd21, Court of Appeal was

17 [1997] 2 MLJ 165

18 [1988]2 All ER 523
19 [1997] 2 MLJ 165
20 [1998] 1 MLJ 114
21 [1997] 2 MLJ 701
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urged by council for the appellant to reject its earlier decision in Syarikat Kenderaan Melayu
Kelantan Sdn Bhd v Transport Worker Union22 which, in the counsels opinion had
wrongfully refuse to follow the Privy Council decision in South East Asia Fire Bricks Sdn
Bhd v Non Metalic Mineral Products Manufacturers Employees Union & Ors 23. Abdul
Malik Ahmad JCA rejected that invitation on the ground among others that we are bound by
our own decision, quoting as authority the dictum by Gopal Sri Ram JCA in the Federal
Court in Kumpulan Perangsang Selangor Berhad v Zaid bin Hj Mohd Nor 24 wherein the
learned judge having stated that the Federal Court is bound by its own decision, added for
like reason, the Court of Appeal is not bound by the decision of previous Federal Court but it
is bound by the present Federal court.

22 (1995)2 MLJ 317

23 [1981] AC 363
24 [1997] 1 MLJ 789
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