Q.
In simple manner, briefly explain the challenges of Stare Decisis in Malaysian Courts with the reinstatement of Federal Court as apex court in 1994.
A.
Judicial precedent are asked in:
MIA QE 2008/3 Q1 (c) State briefly the advantages of the doctrine of binding judicial precedent.
MIA QE 2009/3 Q1 (c) Explain how judicial decisions form part of the law of Malaysia.
MIA QE 2014/3 Q1 (a) Explain the meaning of “binding judicial precedent” in the context of unwritten law in Malaysia.
MIA QE 2012/9 Q1 (a) ‘Judicial Precedent’ is one of the sources of “unwritten laws” in Malaysia.
MIA QE 2014/9 Q1 (a) What is meant by ‘judicial precedent’?
Precedence - is it always followed? Advantages and Disadvantages.
2012 D02 Q2 briefly explain Judicial precedent.
Briefly explain the challenges of Stare Decisis in Malaysian Courts.
What is meant by "Stare Decisis"?
That the doctrine of stare decisis is applicable in the hierarchy of Malaysian Courts is clear, however, it may not be so direct.
Although stare decisis is an inherited system from English Legal system, the Malaysian practice is not entirely the same. It is much more complex. This is primarily because the judiciary hierarchy in Malaysia has undergone several reorganisation pursuant to the numerous political and constitutional changes. For example, focusing just on recent history, at the time of independence in 1957, there existed a 3 tier structure of the superior courts with the Privy Council at the apex. Thereafter the superior courts and then the subordinate courts.
With the abolition of appeals to the Privy Council at the end of 1984, the 3 tier structure was reduced to 2 tiers, the two high courts and the supreme court - which are the superior courts for appeals; and the subordinate courts of sessions court and magistrate courts. Thereafter, in the most recent reorganisation in 1994, the 3 tier structure was again reinstated, with the Court of Appeal standing between the two high courts and the apex court - renamed the Federal Court.
Each reorganisation leaves unclear whether a newly created or renamed court like The Federal Court, is a new court and starts with a clean slate or is, in fact, a successor court and, as such, inherits the practice of the court it superseded. The successive apex courts themselves have neither enunciated a criterion for determining their immediate or distant predecessors nor the theoretical basis for holding that the decision of a predecessor court is binding.
Moreover, after each reorganisation, the apex court as a collegiate body has not declared its policy on stare decisis, something along the lines of the Practice Statement (Judicial Precedent) [1996] 1 WLR 1234 of the House of Lords in England. Thus, if the new kid on the block decides on a controversial issue without precedence, or contradicting to the preceding decision, it is left with unending legal battle and political implications. In a lot of scenarios, it is the political powerful who would influence the courts, and this being a vehicle for achieving their political objective, renders the doctrine of stare decisis a mere slogan.
(Emphasis - underlined, is of my own and not reflecting the original text from reference)
Ref:
Wan Arfah Hamzah (2009) A First Look at the Malaysian Legal System. Oxford Fajar. Pg: 85.