8 Judicial Precedent

Sources of Malaysian Law

Defined as a principle guiding that it is the Parliament’s duty to enact laws, while the Court’s role is to interpret these laws.

Judges do create law indirectly rather than in the same manner as the legislature:
(a) Through application of established rules to new circumstances.
(b) By interpreting statutes enacted by the legislature.

Judges are obligated to follow certain accepted principles known as precedents.
Precedent: A court's judgment cited as authority for legal principles it embodies.
Stare decisis: "Let the decision stand," meaning similar cases should be treated alike.

A binding precedent is followed when judges determine disputes in similar past situations:
If material facts are similar, courts must adhere to higher court rulings and, in some cases, their previous decisions.

In determining binding precedents, judges consider:
(a) The origin of the precedent, which should come from a court of appropriate rank (higher or the same level).
(b) The content of the precedent, specifically the ratio decidendi (legal reasoning).

The doctrine posits that:
Cases with similar material facts should be decided similarly.
Higher court decisions carry more weight than lower courts, making them binding.

Facts: Mrs. Donoghue's friend bought a bottle of ginger beer containing a snail, causing her illness.
Outcome: The House of Lords established that the manufacturer owed a duty of care.
Introduced the neighbour principle: A person must take reasonable care to avoid foreseeable harm to others.

Case example with a birthday cake:
Distinctions in parties involved and goods bought but the legal rule remains constant, emphasizing the manufacturer's duty of care.

Vertical stare decisis: Lower courts must accept decisions from higher courts.
Horizontal stare decisis: Courts at the same level must respect decisions made by peers.

Judges may give opinions not directly relevant to the case—obiter dictum.
Not binding, but can have persuasive authority, especially if from higher courts.

Binding Precedent: Must be followed by lower courts (e.g., High Court bound by Federal Court).
Persuasive Precedent: Not binding but influential, like decisions from Commonwealth courts.
Overruling: A higher court declares a previous ratio wrong.
Reversing: A higher court corrects a wrong ratio in an appeal.
Disapproving: Casting doubt on a lower court's ruling without overruling it.
Distinguishing: Identifying differences between current and previous cases to set aside binding precedents.
Conflicting Decisions: Courts may choose which binding precedent to follow if legal reasoning conflicts.

Ensures certainty and predictability in law, allowing individuals to plan confidently.
While adhering to precedent, there's flexibility allowing adaptation of the law to evolving societal needs.