Case Law & Precedent

Study Guide

1. Explain what is meant by case law and precedent in the context of the hierarchy of the courts including the importance and operation of the doctrine of binding judicial precedent.
Past Year Questions
June 2008 Q1, June 2011 Q1

In the context of the Malaysian legal system:
a. Explain how the doctrine of judicial precedent operates. 

b. State TWO advantages of the doctrine of judicial precedent.

Suggested Model Answer

This question tests the candidates’ knowledge of the advantages and operation of the doctrine of binding judicial precedent in Malaysia.

The doctrine of binding judicial precedent is a doctrine which requires decisions of higher courts to be followed by courts which are lower in the hierarchy of the court structure. It must be noted that it is actually the ratio decidendi that binds future courts. The ratio decidendi refers to the rationale or principle of law on which the decision is based. The ratio decidendi must be distinguished from obiter dicta, which refers to opinions or other matters expressed by the judge, which are not directly relevant to the case before him. In order to better understand the operation of the doctrine, the hierarchy of the courts must be borne in mind. The Federal Court is the highest court in Malaysia. Below it is the Court of Appeal. Below the Court of Appeal is the High Court. Below the High Court are the lower courts comprising the Sessions Courts, Magistrates’ Courts and the Penghulu’s Courts, which are referred to as the Subordinate Courts.

a. The doctrine operates as follows:

• Decisions of the Privy Council (which was formerly the highest court of appeal for Malaysia) given on appeal from Malaysia or from another Commonwealth country where the law is in pari materia to Malaysia are binding on the Malaysian courts. See: Khalid Panjang and Ors v PP [1964] MLJ 108. D.G.I.R. v Kulim Rubber Plantation Ltd [1981] 1 MLJ 214.
• Decisions of the Federal Court (the highest court in Malaysia) are binding on all courts below it. In the same way as the House of Lords of England is not bound by its own decisions, the Federal Court is also not bound by its own decisions and may depart from them. See: Arulpragasan v Public Prosecutor [1997] 1 MLJ 1. However, this will only be sparingly done. See: Tunde Apatria v Public Prosecutor [2001] 1 MLJ 259.
• Decisions of the Court of Appeal will be binding on all the courts below it. As this court’s position is analogous to the Court of Appeal of England, it is bound by its own previous decisions to the same extent as the latter. See: Young v Bristol Aeroplane Co Ltd [1944] K.B. 718.
• Decisions of the High Court are binding on all Subordinate Courts, but one High Court judge is not bound to follow the decision of another. See: Sundralingam v Ramanathan Chettiar [1967] 2 MLJ 211. Subordinate Courts are bound by precedents laid down by the Superior Courts but their own decisions do not bind any court.

b. The advantages of the doctrine of judicial precedent are the following:

• It helps to achieve certainty and uniformity in the law as like cases will be treated alike.
• The law developed through the cases is more practical as it is based on actual situations rather than on hypothetical ones.
• Flexibility in the application can also be achieved. Although judges of the lower courts are generally bound by the decisions of the higher courts, they do not always have to be so. For example, a judge may avoid following an earlier precedent if the case was decided ‘per incurium’ i.e. without taking into account a relevant legal principle or statute. He could also avoid it by distinguishing the precedent from the facts of the present case. This flexibility allows the law to be adapted to the changing needs of society.