1. UNWRITTEN LAW
JUDICIAL DECISION

2. Introduction
The main function of the court is to interpret law and apply them
Therefore, judicial decision or case law is the decision made by a court in response to a legal dispute
When a court interprets a statute, that interpretation becomes part of law and will be applied in later cases

3. Why do we use judicial decision?
Although Parliament has enacted law in the form of statutes, it is not possible for Parliament to foresee every potential dispute thus, some loopholes may occur
In order to resolve this, the court is given the authority to expand the existing law to cover these loopholes
The words or phrase used in statutes are sometimes open to different and contradictory meaning
It is the court who will determine the correct and proper meaning of those words or phrases

4. Examples
In most cases, children are protected by the law by making them exempt from liabilities or by restricting their ability to do certain acts
E.g. marriage is only valid on attaining certain age
Thus, if a person can only get married at 18, is the marriage valid when the person is 17 years 11 months?
The court will need to interpret the meaning of 18 and contemplate the intention of the legislative in passing the law

5. Judicial precedent
Judicial precedent is a decision of a superior court of law, cited as an authority, in support of one’s argument, to be adopted by a judge in making his decision
It means that a case is decided based on the decision made on a similar case that has been decided before
The reason being that if everything is similar, there is no good reason for the court to make a different decision
It is based on the doctrine of ‘stare decisis’

6. Doctrine of stare decisis
The doctrine states that where the facts are the same or almost alike, the previous judicial decisions must be followed
Hence, the subsequent judge cannot ignore the decision of the previous case and make his own decision
Consequently, the courts lay down judicial precedents that will be followed by other courts until it is revoked or becomes no longer relevant

7. Example
If a person convicted of murder was hanged to death then another person who is also convicted of murder should also be hanged
A thief who was convicted of stealing RM 1,000 was imprisoned for one month thus, a thief who stole RM 2,000 should also be imprisoned

8. The rationale
The purpose or objective behind the doctrine of stare decisis is to
standardise the law and make it uniform
prevent uncertainty of the law
prevent injustice i.e. different punishment when the offence is the same
achieve consistency

9. Application of stare decisis in Malaysia
The courts in Malaysia have accepted the application of the doctrine as stated by the court in the case of Public prosecutor v Datuk Tan Cheng Wee & Anor [1980] 2 MLJ 276, “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.”

10. Ratio Decidendi
Whenever a court makes a decision, it must give the legal reasoning
This legal reasoning is termed ratio decidendi
It is the statement of law that has been applied to the issue of that particular case
It is basically the legal principle of the case
For instance, the principle that an underage person cannot make a contract

11. Obiter Dictum
This is a statement of law made by a judge as an additional illustration to the case
It may also be made to further emphasise the main decision
Obiter dictum does not feature in the principle of the case thus it does not form part of the decision
Consequently, judicial precedent is based on ratio decidendi only, not on obiter dictum

12. Operation of the doctrine
Stare decisis operates according to a hierarchy of the courts
Generally the lower courts are bound by the precedents set by the upper courts
The courts in Malaysia are basically divided into 2 groups; the superior courts and the inferior courts
Only the superior courts may make judicial precedent and revoke or amend them

13. Hierarchy of the Civil Courts

14. Vertical operation of stare decisis
The superior courts in Malaysia consist of the Federal Court, the Court of Appeal and the 2 High Courts
Hence, these courts are the only ones that can make a judicial precedent
The inferior courts comprising the Sessions court, the Magistrate Court and the Penghulu Court cannot make precedents
They can only follow what has been set by the superior courts

15. Vertical operation of stare decisis
Each court in the group of superior courts is bound by the decision made by the court higher than it
Thus, the High Court is bound by the decision of the Court of Appeal while the Court of Appeal is bound by the Federal Court’s decision
Decisions of the High Court of Malaya are binding on all inferior courts in Peninsular Malaysia while all inferior courts in Sabah and Sarawak are bound by the decisions of the High Court of Sabah and Sarawak
As the highest court in Malaysia, the decision of the Federal Court is binding on all courts
As a result, no court can disregard the precedents set by the Federal Court

16. Horizontal operation of stare decisis
Certain courts are bound by their own previous decision or the previous decisions of a court of the same level or by a predecessor court
This means the courts are of the same standing such as the High Court in Malaya and the High Court in Sabah and Sarawak
The courts may also be the successor of courts previously established during the colonial period and stand on equal footing

17. The High Courts
The High Court in Malaya and the High Court in Sabah and Sarawak possess equal jurisdiction thus, they are of the same level
At the same time, there are more than 50 judges in the High Court
The question is whether a judge of the High Court is bound by the decision made by another High Court judge?

18. The High Courts
The position was initially uncertain as some judges felt compelled to follow decisions made by other high court judges while some declined to follow
The matter was finally resolved by the Federal Court in Sundralingam v Ramanathan Chettiar [1967] 2 MLJ 211 where the court stated that ‘a High Court judge cannot overrule the decision of another High Court judge but he can choose not to follow that decision’

19. The Federal Court
Another aspect of the horizontal application of the doctrine involves the question of :
whether the Federal court is bound by its predecessor?
whether the Federal Court is bound by its own decision?

20. Predecessor courts
These are the courts that existed previously and have been replaced with the courts in the present structure
For instance, before 1994, the highest court in Malaysia was the Supreme Court
It has now been replaced by the Federal Court so that the Supreme Court is the predecessor court
Historically, the Federal Court has 11 predecessor courts e.g. the Court of Appeal of the Malayan Union, the Court of Appeal of Singapore etc

21. Predecessor courts
Judicial decisions show that the Federal Court regards itself as bound by the decisions of its predecessor court
Thus, decisions made during the colonial era might still have weight today when the Federal Court refused to depart from those decisions
Consequently, the decision is binding on all courts until it is overruled by the Federal Court

22. Its own decision
The Federal Court has opted to follow the practice of the Court of Appeal in England
This is summarised as follows:
The court is bound by its own decision in civil cases
The court is not bound by its own decision in criminal cases
The court may disregard a decision made per incuriam
In the event there are two conflicting previous decisions, the court may choose which decision to follow
The same practice is also observed by our Court of Appeal

23. Decisions of other countries
Basically, a court is not bound by the decision of a foreign jurisdiction
Nevertheless, these foreign decisions can play an important role in assisting the court in making a decision
This is especially so when the decision comes from a commonwealth country that applies common law similar to us
The decisions from India are notable as most of our laws are modeled on the law in force in India e.g. the Contracts Act
Hence, such decisions may be highly persuasive

24. Conclusion
Case law is an important source of law as it helps to expand and clarify the law
It also helps to fill in the void left by the changes in time and circumstances that could not have been foreseen by the legislature
Therefore, the judges who makes decision in the court is not only applying the law but also contributing to its further growth