Application of the Doctrine of Binding Precedent in Malaysia: A Re-Evaluation

Nasrul Hisyam Nor Muhamad,Abdul Basit Samat,Sulaiman Shakib Mohd Noor,Aminuddin Ruskam,Mohd Khairy Kamarudin,Ahmad Muhyuddin Hassan

doi:10.5539/jpl.v13n3p263

Abstract

This paper aims to analyze the issues concerning the implementation of binding precedent in Malaysian cases, and propose a re-evaluation of the binding precedent doctrine. The qualitative approach was employed to indicate the issues related to the doctrine of binding precedent by analyzing relevant cases. These cases were selected to propose the re-evaluation of the binding precedent doctrine as practiced by the Malaysian dual-judicial system. The main issue to be discussed regarding the doctrine of binding precedent is interference by the Civil Court on Islamic matters and Syariah Court decisions, which lead to inconsistency in judgments, even after the amendment of Article 121(1A) of the Federal Constitution. This study proposes that the application of binding precedent should be re-evaluated to ensure that the principles of justice are upheld. Court judges should decide cases based on merit, and only use previous judgments as guidance for present and future cases.

Highlights

Common Law practices the doctrine of ‘stare decisis’ which it applies when the court is hearing a case, it must to refer to any previous case that has been decided as a precedent if the case has similar facts
Data was collected through relevant cases that are in line with the binding precedent doctrine
The application of English Law started from the arrival of the British to the Malay region 150 years ago through the First Charter of Justice, which contributed to a profound impact on the Malaysian legal system (Sulong, 2013)

Summary

Introduction

Common Law practices the doctrine of ‘stare decisis’ which it applies when the court is hearing a case, it must to refer to any previous case that has been decided as a precedent if the case has similar facts. Murgan et al, (2015) underlined the advantages of binding precedent which could avoid waste of judicial effort and time to rethink solutions to similar previous problems and encourage uniformity in judgments. Precedents manage jurists and standardize their different principles in interpreting the law. It prevents inferior courts from disregarding the precedents set by the superior courts (Re, 2016)

Objectives

Methods

Conclusion