LAW 245

EXPLAIN APPLICATION OF DOCTRINE BINDING JUDICIAL DECISION

A precedent which must be followed by all lower courts is called a binding precedent. If there was a precedent set by an equal or superior court, then a judge should obey that precedent. Binding precedents rely heavily on the legal principle of stare decisis. Judicial precedent means alike cases must be alike.      If there is a precedent set by an inferior court, a judge does not have to follow it, but may consider it.          A precedent set by courts lower in the hierarchy is called a persuasive precedent. Persuasive precedents may be persuasive, but are not binding - they can be overruled by a superior court's decision or an act of Parliament. The doctrine works in two ways vertically and horizontal therefore vertically means superior out binds all courts subordinate to it while horizontal means a court is bound its own previous decisions , decisions of its predecessor and decision of court of coordinate jurisdiction . In my opinion, superior courts had a wide field in making decision by its own and it not bound by its own decision. However, horizontal courts had limited field in making decision because they had precedent cases that must be follow in making decision for certain cases.

Besides that, courts in Malaysia had a proper structure in order to make a good and fast decision for cases. The cases that be finalized by judges must follow a certain procedure before it be penalties. The cases that are decide its punishment will be precedent cases that be refer in order to make decision for cases that related with it. The structures of Malaysia’s court are superior courts and subordinate courts. Superior courts consists Federal Court, Court of Appeal and High Court in Malaya also Sabah and Sarawak. Subordinates courts under high court of Malaya are Session Court, Magistrate Court And Penghulu’s Court while high court of Sabah and Sarawak consists Session Court, Magistrate Court And Anak Negeri Court. Superior courts consists of the High Court of Malaya, the High Court of Sabah & Sarawak, the Court of Appeal and the Federal Court. The Federal Court is the highest court of the land. High Courts have general supervisory and revisionary jurisdiction over all the Subordinate Courts and hear appeals from the Subordinate Courts in civil and criminal matters. They hear matters relating to the validity or dissolution of marriage (divorce) and matrimonial causes, bankruptcy and companies winding up matters, guardianship or custody of children, grants probates of wills and letters of administration of deceased persons, injunctions, specific performance or rescissions of contracts, legitimacy of any persons and generally actions of which the claim exceeds RM250,000-00 (except motor vehicle accidents, landlord and tenant and distress). The High Courts have powers to hear all criminal matters. Court of Appeal Generally, the Court of Appeal hears all civil appeals against decisions of the High Courts except where against judgment or orders made by consent. In cases where the claim is less than RM250,000-00 or the judgment or order relates to costs only or against decisions of a judge in chambers on an interpleader summons on undisputed facts, leave of the Court of Appeal must first be obtained. The Court of Appeal also hears criminal appeals against decisions of the High Courts. Federal Court all civil appeals from the Court of Appeal are heard by the Federal Court only after leave is granted by the  Federal Court. The Federal Court also hears criminal appeals from the Court of Appeal only in respect of matters heard by the High Court in its original jurisdiction.

 Furthermore , Subordinates courts consists of the Sessions Courts, the Magistrates' Courts and in West Malaysia the Penghulu's Courts. Penghulu's Courts Generally, the Penghulu's Courts hear civil matters of which the claim does not exceed RM50-00 and where the parties are persons of Asian race and speaking and understanding the Malay language. The Penghulu's Court’s criminal jurisdiction is limited to offences of a minor nature charged against a person of Asian race of which is specially enumerated in his power which can be punished with a fine not exceeding RM25-00. Magistrates' Courts hear all civil matters of which the claim does not exceed RM25,000-00. Generally in criminal matters, the Magistrates' Courts have power to try all offences of which the maximum term of imprisonment does not exceed 10 years or which are punishable with fine only but may pass sentences not exceeding 5 years imprisonment, fine not exceeding RM10,000-00 and/or whipping up to 12 strokes. The Magistrates' Courts also hear appeals from the Penghulu's Courts. Sessions Courts hear all matters of which the claim exceeds RM25,000-00 but does not exceed RM250,000-00 except in matters relating to motor vehicle accidents, landlord and tenant and distress, where the Sessions Courts have unlimited jurisdiction. The Sessions Courts have powers to hear all criminal matters except for offences punishable with death and may pass any sentences allowed by law except the sentence of death. Small Claims Civil claims not exceeding RM5,000-00 where the party pursuing the claim is an individual (i.e. not a company or agent/assignee of debts) are brought before the Magistrates' Courts pursuant to the small claims procedure where legal representations are strictly prohibited. You may fill in the Form 164 (Summons and Statement of Claim) which is available upon request at the Subordinate Courts Building by following the instructions found on the Form. You may also consult a lawyer but you cannot be represented by him at the hearing.

Briefly, decision of the Federal Courts binds all courts. The Courts of Appeal is bound by decision of decision of the Federal Courts and its decision and its decisions bind the two High Courts and the Subordinates courts. The High Court is bound by decisions for the Federal Courts and the Courts of Appeal and their decisions bind the subordinate courts. Decisions for the subordinate courts are, of course, not binding. Every court in the hierarchy must follow the prior decisions if courts higher than itself.  These several courts had different field and cases that can held under them. It must follow requirement under certain courts before it can failing under that courts. These courts settle cases and   ratio decidendi from that case that be refer by other judges in make same decision with similar cases that are held under them. Ratio decidendi (Latin plural rations decidendi) is a Latin phrase meaning "the reason" or "the rationale for the decision". The ratio decidendi is "the point in a case which determines the judgment" or "the principle which the case establishes". In other words, ratio decidendi is a legal rule derived from, and consistent with, those parts of legal reasoning within a judgment on which the outcome of the case depends. It is a legal phrase which refers to the legal, moral, political, and social principles used by a court to compose the rationale of a particular judgment. Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on courts of lower and later jurisdiction—through the doctrine of stare decisis. Certain courts are able to overrule decisions of a court of coordinate jurisdiction—however, out of interests of judicial comity, they generally try to follow coordinate rations. The process of determining the ratio decidendi is a correctly thought analysis of what the court actually decided—essentially, based on the legal points about which the parties in the case actually fought. All other statements about the law in the text of a court opinion—all pronouncements that do not form a part of the court's rulings on the issues actually decided in that particular case (whether they are correct statements of law or not)—are obiter dicta, and are not rules for which that particular case stands.

In the case of Donoghue v Stevenson, Stevenson manufactured the ginger beer and sell to the café in Paisley. Donoghue is the shop assistant who meets his friend in the cafe. He bought the ginger beer to have share with his friends. When Donoghue drank, he found there is “remaining of decomposing snail” in the bottle. He shock, and got food poisoning. So, Donoghue was take action to sue the manufacturer, Stevenson. The chance for Donoghue sued for win was low. It is because there is no contract, so there could not be breach. However, The Court said that the Stevenson has to take reasonable care to avoid acts or omissions that would be reasonably likely to injure anybody who might be affected by them. There was an exit duty of cases independent is each cases. As in cases PP v Datuk Tan Cheng Swee & Anor (1988) , it is necessary to reaffirm the doctrine of stare decisis which 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 . The doctrine of judicial precedent involves an application of the principle of stare decisis (to stand by the decided). In practice, this means that inferior courts are bound to apply the legal principles set down by superior courts in earlier cases. This provides consistency and predictability in the law. However, even though precedents are binding on later cases, there are ways in which judges can avoid following precedents set by previous judges because of several factor are per incuriam and ground of appeal. Per incuriam means  decision which is reached per incuriam is one reached by carelessness or mistake, and can be avoided while ground of appeal means A higher court can overrule a decision made in an earlier case by a lower court. For example, the Court of Appeal can overrule an earlier decision made by the High Court. Overruling can occur if the previous court did not correctly apply the law, or because the present court considers that the previous ratio decidendi is no longer applicable.

In a conclusion, applicable of doctrine binding judicial procedure had been applied in Malaysia a long time ago because that why our judicial branch can make a good and brilliant decision in decide several critical cases. It is because this factor can help in making a good decision making as unwritten law in Malaysia .