Q.
What is meant by "Stare Decisis"? What is its basis and how does it apply to the hierarchy of courts?
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 stare decisis means that in cases where the material facts are the same, a court must follow the prior decisions of a higher court, and (in the case of some courts) its own prior decisions and prior decisions of a court of the same level (of equal or coordinate jurisdiction) whether past or present, in the same hierarchy.
This strict application of precedents in the common law system is also called the doctrine of binding precedents, or "stare decisis". Literally, to stand by what has been decided.
The doctrine of stare decisis has two-way operations:
- vertical (a court is bound by the prior decisions of a higher court); and
- horizontal (some courts are bound by their own prior decisions and prior decisions of a court of the same level, whether past or present, if any).
The basis of stare decisis.
The basic rationale for the observance of precedent is that a court higher in the same hierarchy has laid down that principle as the applicable law. Hence, if such applicable law is not followed by the lower courts, an appeal to its higher court would eventually revert the decision of the lower courts. It is clear, therefore, why in practice, courts must and generally do follow the decisions of the higher (and other relevant) courts in the same judicial hierarchy.
Ref:
Wan Arfah Hamzah (2009) A First Look at the Malaysian Legal System. Oxford Fajar. Pg: 83-84.