Judicial case in point can be defined as jurisprudence that is non created by Parliament. It is the system adopted by Judgess where the Judgess follow old determinations. Under judicial case in point, determinations made by Judgess antecedently in similar state of affairss are adhering upon future instances depending on the hierarchy of the tribunal. Then determinations of the higher tribunals are adhering on the lower tribunals and some tribunals are bound by ain determinations. The system of adhering case in point is called stare decisis in English Law. Once a case in point is made it remains adhering until it is overruled by a higher tribunal in a ulterior instance.
In this instance, Mr Justice Peter, a high tribunal justice sitting entirely in make up one’s minding a instance which has similar stuff facts to one decided by the Court of Appeal in 2009. Yes, Mr Justice Peter has to be bound by the determination that made by Court of Appeal. This is because based on the judicial case in point the determinations of the higher tribunals are adhering on the lower tribunals. Harmonizing to the Malaysia tribunal system construction, high tribunal is under the Court of Appeal which means that the Court of Appeal is higher than it. Therefore, Mr Justice Peter who in high tribunal has to follow the determinations made to the instances which have the similar stuff facts.
Mr Justice Peter has to follow declarative case in point alternatively of original case in point as there is a similar stuff facts that decided by the Court of Appeal. This is because original case in point means that the justice is puting a new case in point like doing a new jurisprudence. It is a state of affairs where there is no case in point to follow and the justice decide harmonizing to justness, equity and good scruples. The justice here is doing a new jurisprudence. On the other manus, declarative case in point can be defined as the justice is simply using an bing jurisprudence, which means that the Judgess have to utilize the other Judgess & A ; acirc ; ˆ™ determinations. So, declarative case in point can be used merely in this instance.
So, in decision, Mr Justice Peter is bound by this determination and he can non worsen it.
Question 1 ( B )
There are some strength and failing of instance jurisprudence as a beginning of jurisprudence. The first advantage of judicial case in point is certainty. There is certainty because if the job has been solved before, the tribunal is bound to follow the solution. So the attorney can rede their client safety. If there is a similar instance, the attorney can approximately state their clients what is the punishment of the instance and the attorney can rede their client after do the research on the instance.
The following strength of instance jurisprudence as a beginning of jurisprudence is new regulations can be created and old one modified to run into new fortunes and the altering demand of the society. When the individual in the high tribunal is non satisfied with the determination, they can appeal in the tribunal of entreaty. If the tribunal of entreaty decides to alter, so the new regulations are created and the old one is modified.
Besides, the other advantage of instance jurisprudence is less legal cost incurred. This is because the instance can be resolved and settled rapidly. When there is a determinations made by Judgess old on similar stuff facts, they can salvage money. This is because there already have the old illustrations, so they can settle the instance rapidly as they can follow the determinations of the old 1. Then this can shorten the continuance of the instance, and this can assist to salvage up the legal costs that need to be paid.
Other than that, personality of the Judgess will non act upon the result of a difference in tribunal as Judgess will be bound to follow the old determinations. When there is judicial case in point, the Judgess can non do the determination by its ain thought or thought which might act upon the wrongdoer hereafter. This is because every individual got their ain personalities, included the Judgess themselves. So one of the advantages is the Judgess have to follow the old determinations. And this is just for everyone.
It is besides predictability for judicial case in point. This is because when there are instances that have similar stuffs facts with the old instances, the attorneies can approximately cognize what is the result out the new instance. By calculating the result of the instance, the attorneies can state their clients the per centum of the winning rate.
On the other manus, instance jurisprudence has its disadvantages excessively which we known it as failing. One of the failings of instance jurisprudence is bulky and complex. Sometimes instance jurisprudence is bulky and complex because there are excessively many instances and excessively many instance Torahs that no 1 can larn all of it. When there is a instance happened which have the similar stuff facts with old one, the attorney has to mention to the old instance. When there are excessively many, attorney demand to read all the instances and refer to them, it is rather complicated for attorneies as they do non cognize what is the best mention.
The organic structure of instance jurisprudence besides can non turn promptly plenty to run into modern demands. This is related to appeal. In pattern, entreaty is really hard because entreaty demands cost and it is really difficult to alter the judicial case in point. Besides, it is slow and expensive as the system depends on the judicial proceeding and judicial proceeding tends to be slow and expensive.
In add-on of that, sometimes it is rigidness or non flexible which means that it may sometimes do adversity. Once it is created it is adhering until it is being overruled. When there are bad determinations made on old instances, the new instance which has the similar stuff facts with it has to follow the bad determination excessively. It is so unjust for them.
Last, we know that merely the ratio of the instance is adhering in a instance. So the failing of instance jurisprudence is sometimes it is really hard to happen the ratio decidendi of a instance. So the job occurs when it is really hard to state which is the ratio decidendi of the instance and which is the obiter pronouncement.