Explain the hierarchy of courts in Malaysia based on

the vertical operation of stare decisis in Malaysia.

 Hierarchy of courts in Malaysia

 Vertical operation: A court is bound by the prior decisions of all courts higher than
itself in the same hierarchy
 Stare decisis = Judicial precedent
 Meaning of precedent:
- Literally : something that has happened before
- Legally : The legal principle or rule created by a court which guides the judges in
subsequent cases with similar issues or facts.
 The hierarchy of courts based on the vertical operation of stare decisis:
- Decisions of the Federal Court binds all the courts
- Court of Appeal is bound by the decision of the Federal Court and its decision
binds the High Court and subordinate courts.
- High Court is bound by the decision of the Court of Appeal and Federal Court and
its decision binds the subordinate courts.
- Decision of subordinate courts are not binding.
  What if there are two conflicting decisions in the superior courts? Which decisions do
the lower courts have to follow?
- In the case of two conflicting decisions of the Court of Appeal, courts lower in the
hierarchy may choose to follow either decisions irrespective of whether it is the
earlier or later decision
- In the case of two conflicting decisions of the Federal Court, all courts below
must choose to follow the later decision )because the later decision represents
the existing state of the law and therefore, prevails over the earlier decision)
- Case: Dalip Bhagwan Singh v Public Prosecutor
“…where there are two conflicting decisions of a higher court and the later
decision does not purport to overrule the earlier, a lower court may choose
which to follow and in doing so, it may act on its own opinion as to which is
more convincing”

Explain the horizontal operation of stare decisis in Malaysia to the following issue;
a) Are the present courts bound by their own previous decision?

Federal Court
 The present Federal Court is not bound by its own previous decision.
 It was stated by Peh Swee Chin FCJ in Dalip Bhagwan Singh v Public Prosecutor [1998]
1 MLJ 1, 14 that “Federal Court have power to depart from its own previous decision
when former decision sought to be overruled is wrong, uncertain, unjust or obsolete
in the modern conditions.”
 Also, in Arulpragasan a/l Sandraju v Public Prosecutor [1997] 1 MLJ 1 on the issue of
burden of proof at the close of the prosecution’s case, Federal Court decline to follow
its previous decision in Tan Boon Kean v Public Prosecutor [1995] 3 MLJ 514 as in that
case Federal court had misunderstood the reason in the Supreme Court decision.
  So, present Federal Court in civil and criminal matters will depart from a previous
decision when it just right to do so.

Court of Appeal

 The Court of Appeal is bound by its own predecessor which is Supreme Court.
 This is because, Supreme Court is the previous Court of Appeal as Supreme Court
discuss appeal cases.
 Court of Appeal bound to the decision of Supreme Court in certain civil cases such as
for dependancy claim and personal injury.
 In Kesultanan Pahang v. Sathask Realty Sdn Bhd [1997] 2 MLJ 701, Abdul Malik
Ahmad JCA insisted that court are bound by its own decision as he rejected the
judgment that refuses to follow the decision of Privy Council.
 However, in R v. Taylor, court of criminal appeal held that the court did not follow the
previous decision if it will cause injustice to the appellant. And this rule later was
adopted in R v. Gould.

High Court

 In the horizontal operation, high court does not bounds by the decision made by
another whether exercising original or appellate jurisdiction.
 High Court Malaya
 For example in the case of Ng Hoi Chew & Anor v. PP [1968] 1 MLJ 53, Chang Min Tat
J did not follow the decision of Smith J in exercising appellate jurisdiction.
 The practise of the High Court has continued unchange until today.
b) Are the present courts bound by the decision of their predecessor?

Meaning of predecessor:
 It refers to a person or entity who previously held the rights that are now held by
another.
Federal Court
 In post 1994 until present, in civil matters, Federal Court does not regard itself bound
by the decision of Supreme Court as decided in the case of Malaysian National
Insurance Sdn. Bhd v. Lim Tiok [1997] 2 MLJ 165.
 The House should not embark on such review unless they feel free to depart from
the reasoning and the decision and if they are satisfied that it would be of relevance
to the resolution of the dispute in the case before them.
 In effect, the Federal Court overruled a decision of Supreme Court.
 Conversely on criminal matters, Federal Court hold itself bound by decision of the
Supreme Court.
 Mohd Azmi FCJ stated that the court are of course strictly guided by the principle of
stare decisis.

Court of Appeal
 Court of Appeal does not have any predecessor because it was established in 1994
 Court of Appeal was bound to Supreme Court decision as it was the previous Court of
Appeal because Supreme Court discuss appeal cases
 But Court of Appeal bound to the decision of Supreme Court in certain civil cases
such as dependency claim and personal injury
High Court

 There is no predecessor for High Court

 High Court Malaya and High Court Sabah and Sarawak does not bound each other
because of the same level of jurisdiction
