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.

Court Structure

Study Guide

1. Explain the structure and operation of the courts.

Past Year Questions

Dec 2003 Q3 , Dec 2005 Q1, Dec 2008 Q1, June 2011 Q1

a. Describe the structure of Malaysian Court System explaining the judicial composition of each court (the hierarchy of the Malaysian courts)  and

b. Explain the advantages of having a hierarchy of courts.

Suggested Model Answer

This question tests the candidates’ knowledge on the structure of the court system in Malaysia and the advantages of having a hierarchy of courts.

a) The court system in Malaysia, was last restructured by the Constitution (Amendment) Act 1994. The present court structure, which has been in force since then, is as follows:

• The Federal Court stands at the apex of the Malaysian court system. It is headed by the Chief Justice.

• Below the Federal Court is the Court of Appeal. This court is headed by the President of the Court of Appeal.

• Below the Court of Appeal are two High Courts with co-ordinate jurisdiction. One is the High Court of Malaya which serves Peninsula Malaysia, while the other is the High Court of Sabah and Sarawak, which serves East Malaysia, i.e. Sabah and Sarawak. Each of the High Courts is headed by a Chief Judge.

• Below the High Courts are the Subordinate Courts, the highest of which are the Sessions Courts, each of which is headed by a Sessions Court Judge. 

• Below the Sessions Courts are the Magistrates’ Courts, each of which is presided over by a magistrate. Parallel to the Magistrates’ Court is the Juvenile Court (Court For Children) which is also presided over by a magistrate.

• In Peninsular Malaysia (West Malaysia) there are provisions for Penghulu’s Courts below the Magistrates’ Courts. These are headed by a penghulu or village headman. He has very limited jurisdiction and usually deals with local disputes in an informal manner. However, in practice, these courts hardly function.

• There are also the Native Courts and the Syariah Courts. These courts operate only at the State level. The Native Courts exist only in Sabah and Sarawak and they deal with native rights while the Syariah Courts deal with matters pertaining to Islamic law in the respective states.

b) Having a court system with a hierarchy of courts has various advantages. These may be summarized as follows:

• It facilitates a system of appeals. The court hierarchy distinguishes between higher and lower courts so that persons who are dissatisfied with the decision of a lower court have an avenue to have the decision reviewed by a higher court.

• It facilitates the application of the doctrine of binding judicial precedent which requires the lower courts to follow the decisions of the higher courts, thus achieving greater uniformity in the application of the law.

• It facilitates specialization in the judicial process. The higher courts which are presided by more senior and experienced judges handle the more serious criminal offences such as murder, and kidnapping and more serious civil matters where larger sums of money are involved. The lower courts are left to handle the less serious offences and civil disputes involving smaller amounts of money.

• It results in greater administrative convenience, efficiency and cost effectiveness. The practical effect of a court hierarchy is that it provides for an extensive system of lower courts dispensing justice inexpensively in local areas and superior courts in the main centres.