Precedence – is it always followed? Advantages and Disadvantages

Q.
Judicial precedence, a doctrine which comprises of res judicata, ratio decidendi and obiter dictum. Is it always followed? What are the advantages and disadvantages of deviating from judicial precedence?

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"?

 

The doctrine of judicial precedence was instrumental in the evolution and building up of both common law and equity. A precedent is basically a judgment or decision of court of law cited as an authority for the legal principle embodied in its decision. Thus, 'following a precedent' means that a question should be resolved in a certain way today because a similar question has been so decided before. This process of following an established procedure is called a stare decisis which literally means 'to stand by a decision'.

However, it is not every case that judges apply earlier precedents. A judge may not wish to apply precedents in the following circumstances:

1. Judges may ignore or overrule a precedent laid down by a lower court, where the case is on appeal.
2. They may refuse to apply the earlier precedent if it is arrived at per incuriam (i.e. made in ignorance of a statute or a binding precedent).
3. They may distinguish the case when they find there are material differences in facts between the case before them and the case laying down the precedent.

In summary, there are advantages and disadvantages in applying the system of binding judicial precedents.

The advantages are:

1. Since the law so evolved is a result of an actual dispute rather than a hypothetical situation, the law evolved is more practical since it evolved through actual experiences and not a result of abstract theory.
2. It is more flexible when compared to statute law enacted by Parliament as law once enacted can only be amended or repealed and legislative proceedings are often cumbersome and time consuming. A judge can escape the effect of a binding precedent by distinguishing the facts before him from facts of an earlier case wherein the binding precedent was laid down or he may overrule the decision of a lower court if he is of the opinion that it has been wrongly decided.
3. Case law is richer in legal detail than statute law.