Judicial Precedent in Malaysia

August 30, 2017 Philosophy


  1. Introduction- Judicial precedent1
  1. Res Judicata, Obiter Dictum, Ratio Decidendi1
  1. Doctrine of judicial precedent2
  1. Hierarchy of precedents2, 3
  1. Persuasive case in point, Original case in point, Distinguishing precedent3
  1. Advantages of judicial precedent4,5
  1. Disadvantages of judicial precedent6,7
  1. Conclusion8

Judicial Precedent is known as Judge-Made jurisprudence. Before Malaysia have its ain judicial case in point Judgess have to mention the judicial case in point in England. After the Judgess have their ain instances and work out the jobs these will easy develop into unwritten jurisprudence. This is where Judges have had to make jurisprudence by doing determinations based on the alone facts of instances that have been brought before them by looking at old judicial determinations in similar instances, and make up one’s minding the consequence of the instance based on what they consider the jurisprudence to be. Judges have to follow these old determinations in future instances when encountered to relevant instances.

When justice judge a instance which known as ‘Res Judicata’ they have to do a address giving the ground for their judgement and this concluding judgement from the higher tribunals are published in jurisprudence studies. In the tribunal of Appeal there will frequently be more than one judgement given as each justice sitting may hold an sentiment on the instance. The address can be really long and sometimes confounding. Lawyers have to read through these addresss to happen out precisely what the Torahs to back up their statements. Once the concluding determination is decided, the immediate parties are barred from appealing the peculiar instance once more in the tribunal except for discover a material grounds ( RESs judicata, n.d. ) . This is because they have to avoid the suspect be imposed countenance twice for the same instance. ( Choudhury, 2013 ) . Res Judicata is merely adhering on the immediate parties but non including the similar issue in the hereafter which means that the Judgess can take to non follow the adjudication.

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What attorneies seeking to happen is called the ‘Ratio Decidendi’ . ‘Ratio Decidendi’ means ground for make up one’s minding. It is the lone portion of the Judges address that forms the case in point for the instances. Sometimes each justice may get at the same determination through different concluding which can do happening the ‘Ratio Decidendi’ really hard. Everything else in the judgement which doesn’t form portion of the ‘Ratio Decidendi’ , is known as the ‘Obiter Dicta’ . It could include where justice is speaking about what the determination in the instance may hold been if the facts were somewhat different. Unlike the ‘Ratio Decidendi’ , Obiter Dicta is non binding case in point and Judgess do non hold to follow it in future determination and it is known as “persuasive precedent” . This means that Judgess in future instances may look to it for counsel and may make their determination based on what old Judgess have said.

In order for a judicial case in point to run, there have to be being of tribunal of hierarchy. This is because a hierarchy act as a fundamental of case in point. In the system, determination made in higher tribunals will be precedence in the determination of lower tribunals in the hierarchy. Simultaneously, the higher tribunals will be bounded by the determinations of its earlier tribunal. Bing bounded by a determination define as the hereafter tribunals must follow the determination of the old tribunal if there is a similar state of affairs. Supreme Court determinations were seemed like the reigning jurisprudence of the land therefore the subsidiary tribunals must stay by the determinations of the supreme tribunals. ( Helen J.Bond, 1995 )

( Lim Mei Pheng, 2009 )

Prior to 1985 the highest tribunal was Privy Council.Abolished of Privy Council was established in the Article 121 ( 2 ) in Federal Constitution 1957, Federal Court become the highest tribunal in Malaysia in Jun 1994. In 1964, Federal Court has the legal power to find the entreaty from Court of Appeal and High Courts. Inferior to Federal Court is Court of Appeal, by and large determine the civil entreaties. Before the Court of Appeal is High tribunal, heard the civil instances that subordinate tribunals can non be determined. ( What is Federal Court? What are the maps of the Federal Court? , 2014 )

Subordinate tribunal in Peninsula Malaysia and East Malaysia are somewhat difference. Hierarchy in Peninsula Malaysia comprise Syariah Court, Sessions Court, Juvenile Court, Magistrates’ Court and Penghulu’s Court. Sabah and Sarawak were long term influenced by west legal system therefore they applied the Borneo’s hierarchy system. East Malaysia have Native Court alternatively of Penghulu’s Court which trade with the usage, faith and minor civil instances. Both Native Court and Penghulu’s Court are lowest tribunal in low-level tribunal on the other manus Sessions Court is the highest tribunal in low-level tribunal.

Other than adhering case in point, a case in point could be a persuasive president. Persuasive case in point merely means that the tribunal may or may non follow the case in point. Furthermore, persuasive case in point can be the determinations of lower tribunals or supreme tribunals from other state which have no power to adhere the case in point.

However, Judgess do non make up one’s mind instances indiscriminately. That is why we need the philosophy of judicial case in point to keep the equity and equality. The Judgess are required to follow certain bing theory which is case in point. What is precedent? Precedent is a legal determination made by the senior status of tribunals.

Whereas there will be a instance that is the first brush in the jurisprudence. Basically, these instances is called original case in point. Merely the determination made in supreme tribunals will adhere the future determination but all tribunal can do the determination on original case in point. Unwritten jurisprudence in a state is developed through original case in point systematically.

Distinguishing case in point is intending that there will be an exceeding circumstance to non to follow the case in point. First, higher tribunal Judgess perchance to overturn or disregard a case in point decided by a lower tribunal when the instance is appealed. The Judgess will reject to follow the case in point if happen to be per incuriam. Per incuriam is the negligent of statutory. Last, they may non follow the case in point when there is different in material grounds.

The system of case in point is based on the legal axiom ‘stare decisis et non quietamovere’ which means base by affairs that have been decided. By utilizing case in point in relevant instances, it can turn out certainty within the Law as past determination is reported and the Law within them can be found. This means that people can carry on their personal and concern personal businesss safe in the cognition that the jurisprudence is settled. Furthermore, Lawyer can give advice easy as the Law is at that place for them to research. If there was no certainty and the tribunals could merely overturn any determination they chose to. Peoples would non cognize where they stand within the Law at any given clip. ( Mitchell, 2009 )

Another advantages of case in point is achieve consistence and equity, it seems just that instances of similar fact should be decided upon in similar ways. Compare the instances of Donoghue v Stevenson ( 1932 ) and Sri Inai Sdn Bhd V Yong Yit Swee & A ; Ors ( 1998 ) . Donoghue V Stevenson ( 1932 ) , on the 26ThursdayAugust 1928 Donoghue and a friend were in a cafe . Donoghue’s friend purchased a bottle of Stevenson’s ginger beer and gave it to Donoghue. The bottle was non made of clear glass. Donoghue had consumed most of its contents before she aware of the snail. Donoghue subsequently complained for her unwellness and injury which lead her took legal action on Mr. David Stevenson. Unfortunately, Donoghue could non action Stevenson for breach of contract, because a friend had purchased the drink for her. Lord Atkin’s judgement establishes that Stevenson was still responsible for the unity of his merchandise. The instance subsequently established the rule that the industry of merchandise is apt to consumer. ( Case survey: Donoghue v. Stevenson ( 1932 ) , 2014 )

The rule was applied in the instance of Sri Inai Sdn Bhd V Yong Yit Swee & A ; Ors ( 1998 ) Sri Inai Sdn Bhd ( first suspect ) rent a edifice from Yong Yit Swee & A ; Ors ( 2nd defended ) to use it as a inn. Second suspect aware that the premises will suit immature kids. However, it did non better and upgrade the premises for the safety of kids. Unfortunately, a fire accident occurs at the edifice and causes the decease of four pupils and five were injured. After a long session of entreaty, held that, the 2nd suspect have to counterbalance the complainants and first suspect. ( Mohamad, 1997 )

The undermentioned advantage is preciseness. As the tribunals hear more and more determination n similar legal points, the jurisprudence in the country become more fine-tuned and shaper because of all the different facts that have been considered over old ages. This refines the jurisprudence and makes it sophisticated. It besides comes to a grade of flexibleness. The powers granted by the pattern statement and the ability Judgess have to separate allow the tribunals a grade of flexibleness in how they approach single instances. The following advantage is clip efficiency. The usage of case in point can salvage a batch of clip because instances on similar facts are likely to be judged by the same case in point instead than be examined in great deepness to find the result. ( Mitchell, 2009 )

Though the system of case in point based on the legal axiom “stare decisis” seem just, but sometimes it can take to unfair due to the rigidness. Lower tribunals holding to follow the higher tribunals means that unless a party has a batch of clip, money and the willingness to take a potentially great hazard or their instance will more than probably ne’er be heard by the Supreme Court. Often Judgess are loath to alter the jurisprudence even if they think it is incorrect.

The undermentioned disadvantages is complexness, there could be likely half a million of instances reported on one estimation. This can sometimes do attorney happening the jurisprudence a really hard occupation. The judgement themselves can sometimes be hard to understand and happening the ‘ratio decidendi’ can sometimes be a difficult undertaking in itself. For illustration, Central Asbestos V Dodd ( 1973 ) , Judgess in tribunal of entreaty said they were unable to happen the ‘ratio decidendi’ of this instance. This instance involved a workman catching asbestosis and he was informed by his director that he could non convey an action for amendss against his employer. It was decidedly obvious that a plant director has no equal cognition in jurisprudence to give advice, so, it is sensible for the claimant to accept the incorrect advice. Therefore, a immense division of sentiment in the House of Lords rejected his claim. ( Mitchell, 2009 )

Frequently, justice attempt to separate or overturn instances in order to avoid the following it as a case in point, in this instance, justice will hold to do unlogical differentiations. Judges have been criticized for dividing hairs when it comes to the distinguishing of certain instances and have sometimes appeared to hold been intellectually dishonest. Another disadvantage is slow of growing. The Supreme Court can merely cover with limited instances in a twelvemonth. This means that many instances will non hold been heard by the tribunal of the highest degree and this may take to a slow development of the jurisprudence in some countries. This is one of the chief unfavorable judgment of the tribunal of entreaty being bound to follow its ain determination because non many people have the money or the energy to take a instance the manner to the supreme tribunals. Furthermore, unfairness may do in single instances. ( Mitchell, 2009 )

In my sentiment, judicial case in point is utile for now and future. Judicial case in point is theoretically working with rules such as RESs judicata, ratio decidendi and obiter pronouncement. With these philosophy of adhering judicial case in point, justice can establish on it and do a wiser determination. Although non every instances Judgess use judicial case in points for judging but judicial case in point has an of import function when doing a determination. In many instance jurisprudence, judicial case in point helps to judge on the tribunal. So, judicial determination, a portion of unwritten Torahs in Malaysia ever follow by Judgess on the tribunal. If Malaysia in the absence of judicial case in point for judgment, Judgess and people will chaos because there was no binding regulations for instances jurisprudence. The importance of judicial case in point are critical to our state. As a consequence, Malaysia should continue and obey the verve of judicial case in point.


Case survey: Donoghue v. Stevenson ( 1932 ). ( 2014 ) . Retrieved from lawgovpol.com: hypertext transfer protocol: //lawgovpol.com/case-study-donoghue-v-stevenson-1932

Choudhury, T. ( 2013, March 16 ) .Legal Service India. Retrieved from legalserviceindia6.blogspot.com: hypertext transfer protocol: //legalserviceindia6.blogspot.com/2013/03/objective-of-res-judicata.html

Helen J.Bond, P. K. ( 1995 ) .Business Law.London: Blackstone Press.

Lim Mei Pheng, I. J. ( 2009 ) .Business Law.Oxford University Press.

Mitchell, A. ( 2009 ) . In A. Mitchell,As Law: 3rd edition. New York.New York: Routledge Cavendish.

Mohamad, A. H. ( 1997, 12 8 ) .SRI INAI ( PULAU PINANG ) SDN BHD V YONG YIT SWEE & A ; 9 ORS.Retrieved from hypertext transfer protocol: //www.tunabdulhamid.my/ : hypertext transfer protocol: //www.tunabdulhamid.my/index.php/judgments/item/435-sri-inai-pulau-pinang-sdn-bhd-v-yong-yit-swee-9-ors

RESs judicata. ( n.d. ) . Retrieved from BusinessDictionary.com: hypertext transfer protocol: //www.businessdictionary.com/definition/res-judicata.html

What is Federal Court? What are the maps of the Federal Court?( 2014, March 7 ) . Retrieved from Lawyerment: hypertext transfer protocol: //www.lawyerment.com/library/kb/Legal_Institutions/Judiciary/1512.htm


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