tg群( importance of adhering to judicial precedent

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“THERE is only a legally coherent or incoherent verdict – never a conservative or liberal one,” said Chief Justice Tengku Maimun Tuan Mat. Well said.

Any law graduate, whose understanding of the subject and its principles is shaped during their faculty years in either a local or international university, should be able to agree with our learned chief justice.

Especially when she said judges, when performing judicial duties, are bound by existing legal principles and judicial precedents, or stare decisis.

In Tan Heng Chew v Tan Kim Hor (2006) 2 MLJ 293, Steve Shim, who was then chief judge of Sabah and Sarawak, delivered a concurring judgment of the Federal Court:

“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 the rule of law.

“(The doctrine) has attained the status of immutability. In Public Prosecutor v Tan Cheng Swee & Anor (1980) 2 MLJ 276, Chang Min Tat FJ had occasion to restate the doctrine in poignantly clear words when he said (at p 277):

“It is… necessary to reaffirm the doctrine of stare decisis, which the Federal Court accepts unreservedly and the High Court and other inferior courts in a common law system… are expected to follow similarly.

“Judicial hierarchy must be observed in the interests of finality and certainty in the law, for orderly development of legal rules, as well as for the courts and lawyers to regulate their affairs.

“Failure to observe judicial precedents will create chaos and misapprehensions in the judicial system.”

These remarks are a stark reminder to judges of the importance of adhering to the doctrine. The public, too, should be informed of the duties of judges. – June 18, 2022.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.


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