UNWRITTEN LAW

JUDICIAL DECISION

Introduction

• The main function of the court is to interpret law and apply them

• Therefore, judicial decision or case law is the decision made by a court in response to a legal dispute

• When a court interprets a statute, that interpretation becomes part of law and will be applied in later cases

Why do we use judicial decision?

• Although Parliament has enacted law in the form of statutes, it is not possible for Parliament to foresee every potential dispute thus, some loopholes may occur

• In order to resolve this, the court is given the authority to expand the existing law to cover these loopholes

• The words or phrase used in statutes are sometimes open to different and contradictory meaning

• It is the court who will determine the correct and proper meaning of those words or phrases

Examples • In most cases, children are protected by the law

by making them exempt from liabilities or by restricting their ability to do certain acts

• E.g. marriage is only valid on attaining certain age

• Thus, if a person can only get married at 18, is the marriage valid when the person is 17 years 11 months?

• The court will need to interpret the meaning of 18 and contemplate the intention of the legislative in passing the law

Judicial precedent• Judicial precedent is a decision of a superior

court of law, cited as an authority, in support of one’s argument, to be adopted by a judge in making his decision

• It means that a case is decided based on the decision made on a similar case that has been decided before

• The reason being that if everything is similar, there is no good reason for the court to make a different decision

• It is based on the doctrine of ‘stare decisis’

Doctrine of stare decisis• The doctrine states that where the facts

are the same or almost alike, the previous judicial decisions must be followed

• Hence, the subsequent judge cannot ignore the decision of the previous case and make his own decision

• Consequently, the courts lay down judicial precedents that will be followed by other courts until it is revoked or becomes no longer relevant

Example

• If a person convicted of murder was hanged to death then another person who is also convicted of murder should also be hanged

• A thief who was convicted of stealing RM 1,000 was imprisoned for one month thus, a thief who stole RM 2,000 should also be imprisoned

The rationale• The purpose or objective behind the

doctrine of stare decisis is to

1.standardise the law and make it uniform

2.prevent uncertainty of the law3.prevent injustice i.e. different

punishment when the offence is the same

4.achieve consistency

Application of stare decisis in Malaysia

• The courts in Malaysia have accepted the application of the doctrine as stated by the court in the case of Public prosecutor v Datuk Tan Cheng Wee & Anor [1980] 2 MLJ 276, “It is however necessary to reaffirm the doctrine of stare decisis which the Federal Court accepts unreservedly and which it expects the High Court and other inferior Courts in a common law system such as ours, to follow similarly.”

Ratio Decidendi• Whenever a court makes a decision, it must

give the legal reasoning• This legal reasoning is termed ratio

decidendi• It is the statement of law that has been

applied to the issue of that particular case• It is basically the legal principle of the case• For instance, the principle that an underage

person cannot make a contract

Obiter Dictum• This is a statement of law made by a judge

as an additional illustration to the case• It may also be made to further emphasise

the main decision• Obiter dictum does not feature in the

principle of the case thus it does not form part of the decision

• Consequently, judicial precedent is based on ratio decidendi only, not on obiter dictum

Operation of the doctrine• Stare decisis operates according to a

hierarchy of the courts • Generally the lower courts are bound by

the precedents set by the upper courts• The courts in Malaysia are basically

divided into 2 groups; the superior courts and the inferior courts

• Only the superior courts may make judicial precedent and revoke or amend them

Hierarchy of the Civil Courts

FEDERAL COURT

COURT OF APPEAL

HIGH COURT IN MALAYA

HIGH COURT SABAH AND SARAWAK

SESSIONS COURT SESSIONS COURT

MAGISTRATE COURT MAGISTRATE COURT

PENGHULU COURT

Vertical operation of stare decisis

• The superior courts in Malaysia consist of the Federal Court, the Court of Appeal and the 2 High Courts

• Hence, these courts are the only ones that can make a judicial precedent

• The inferior courts comprising the Sessions court, the Magistrate Court and the Penghulu Court cannot make precedents

• They can only follow what has been set by the superior courts

Vertical operation of stare decisis• Each court in the group of superior courts is bound

by the decision made by the court higher than it• Thus, the High Court is bound by the decision of

the Court of Appeal while the Court of Appeal is bound by the Federal Court’s decision

• Decisions of the High Court of Malaya are binding on all inferior courts in Peninsular Malaysia while all inferior courts in Sabah and Sarawak are bound by the decisions of the High Court of Sabah and Sarawak

• As the highest court in Malaysia, the decision of the Federal Court is binding on all courts

• As a result, no court can disregard the precedents set by the Federal Court

Horizontal operation of stare decisis

• Certain courts are bound by their own previous decision or the previous decisions of a court of the same level or by a predecessor court

• This means the courts are of the same standing such as the High Court in Malaya and the High Court in Sabah and Sarawak

• The courts may also be the successor of courts previously established during the colonial period and stand on equal footing

The High Courts• The High Court in Malaya and the

High Court in Sabah and Sarawak possess equal jurisdiction thus, they are of the same level

• At the same time, there are more than 50 judges in the High Court

• The question is whether a judge of the High Court is bound by the decision made by another High Court judge?

The High Courts• The position was initially uncertain as

some judges felt compelled to follow decisions made by other high court judges while some declined to follow

• The matter was finally resolved by the Federal Court in Sundralingam v Ramanathan Chettiar [1967] 2 MLJ 211 where the court stated that ‘a High Court judge cannot overrule the decision of another High Court judge but he can choose not to follow that decision’

The Federal Court• Another aspect of the

horizontal application of the doctrine involves the question of :

a. whether the Federal court is bound by its predecessor?

b. whether the Federal Court is bound by its own decision?

Predecessor courts• These are the courts that existed previously

and have been replaced with the courts in the present structure

• For instance, before 1994, the highest court in Malaysia was the Supreme Court

• It has now been replaced by the Federal Court so that the Supreme Court is the predecessor court

• Historically, the Federal Court has 11 predecessor courts e.g. the Court of Appeal of the Malayan Union, the Court of Appeal of Singapore etc

Predecessor courts• Judicial decisions show that the Federal

Court regards itself as bound by the decisions of its predecessor court

• Thus, decisions made during the colonial era might still have weight today when the Federal Court refused to depart from those decisions

• Consequently, the decision is binding on all courts until it is overruled by the Federal Court

Its own decision• The Federal Court has opted to follow the

practice of the Court of Appeal in England• This is summarised as follows:

a. The court is bound by its own decision in civil casesb. The court is not bound by its own decision in criminal

casesc. The court may disregard a decision made per incuriamd. In the event there are two conflicting previous

decisions, the court may choose which decision to follow

• The same practice is also observed by our Court of Appeal

Decisions of other countries• Basically, a court is not bound by the

decision of a foreign jurisdiction• Nevertheless, these foreign decisions can

play an important role in assisting the court in making a decision

• This is especially so when the decision comes from a commonwealth country that applies common law similar to us

• The decisions from India are notable as most of our laws are modeled on the law in force in India e.g. the Contracts Act

• Hence, such decisions may be highly persuasive

Conclusion • Case law is an important source of law

as it helps to expand and clarify the law• It also helps to fill in the void left by the

changes in time and circumstances that could not have been foreseen by the legislature

• Therefore, the judges who makes decision in the court is not only applying the law but also contributing to its further growth