JUNE 18 — There are only legally coherent or incoherent decisions — not liberal or conservative decisions.
Well said, Chief Justice.
Any legally trained person, whose understanding of the law and its principles is shaped during his or her faculty days — be it in a local university or overseas — should be able to agree with the learned Chief Justice of Malaysia.
More so when Her Ladyship said that judges, when performing their judicial duties, are bound by existing legal principles and judicial precedents or stare decisis as it is also known by lawyers.
In Dato’ Tan Heng Chew v Tan Kim Hor [2006] 2 MLJ 293, then Chief Judge of Sabah and Sarawak Steve Shim, delivering a concurring judgment of the Federal Court, said as follows: “It is axiomatic to state that the doctrine of stare decisis has become the cornerstone of the common law system practised in this country. It is fundamental to its existence and to the rule of law.
“[The doctrine] has attained the status of immutability. In Public Prosecutor v Datuk Tan Cheng Swee & Anor [1980] 2 MLJ 276, Chang Min Tat FJ had occasion to restate the doctrine in words which are poignantly clear when he said (at p 277):
‘It is... 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.’
“Judicial hierarchy must be observed in the interests of finality and certainty in the law and for orderly development of legal rules as well as for the courts and lawyers to regulate their affairs. Failure to observe judicial precedents would create chaos and misapprehensions in the judicial system. “
The remarks above, and that of Chief Justice Tun Tengku Maimun Tuan Mat, are but a stark reminder to judges of the importance of adhering to the doctrine.
The public too should be informed of the judges’ duty.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
