Importance Of Stare Decisis In Malaysia

Just as in other countries, the law in Malaysia can be found not only in legislation, but also in cases decided by the courts. The courts in question are the Federal Court, the Court of Appeal, and the two High Courts. This is because only decisions of superior courts are sources of law as they are the courts that decide on matters of law whereas lower courts generally discuss on matters of fact. Decisions of the higher courts are binding to the lower courts which is known as stare decisis.

Stare decisis is a latin term which means to stand by what has been decided. It is a doctrine used in all court cases and all illegal issues. A doctrine simply means a principle or an instruction, not a rule that cannot be broken.

The doctrine of stare

This can be seen by the numerous cases in which judges have stood by this fact. For example, in the case of Public Prosecutor v Datuk Tan Cheng Swee and Anor [1980]

The judge at the time , Chang Min Tat FJ said “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… Clearly the principle of stare decisis requires more than lip service”

Also, in Co-operative Central Bank Ltd v Feyen Development Sdn Bhd [1977], Edgar Joseph Jr FCJ acknowledged the doctrine as ‘a cornerstone of our system of jurispridence’ before ruling that in accordance with that doctrine, it is not open to the Court of Appeal to disregard a judgement of the Federal Court on the grounds that it was given pre incuriam.

With this being said, it is absolutely clear that the doctrine of stare decisis applies in Malaysia. But one thing worth nothing is although the Malaysian practice is based on the English practice, it is not exactly the

In Malaysia, the court at the top of the hierarchy is the Federal Court. This means that all the courts are bound by its decision. Next is the Court of Appeal, then the two High Courts, and then the subordinate courts. The courts may not decline to follow the higher court’s decision on grounds that it is wrong or rendered obsolete by changing conditions or even by per incuriam. A case where the vertical operation was applied is in Harris Solid State (M) Sdn Bhd & Ors v Bruno Gentil s/o Pereira [1996]. In the said case, the counsel for the appellants tried to argue before the Court of Appeal that the decision in the case Rama Chandran v The Industrial Court of Malaysia & Anor was wrong. Because the court was heard in the Federal Court, the Court of Appeal disagreed. It was also