Judicial Precedent

Precedent is a rule of law established for the first time by a court for a particular type of case and thereafter referred to by other courts, usually the lower courts, in deciding similar cases.

BINDING PRECEDENT

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.

PERSUASIVE PRECEDENT

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 Paliament.

STARE DECISIS

Stare decisis is the legal principle or doctrine by which judges are obliged to respect the precedents established by previous judges. It is Latin for "to stand by things decided". The words originate from the Latin phrase 'Stare decisis et non quieta movere' (stand by decisions and do not disturb the undisturbed). It means that courts should abide by precedents and do not disturb settled matters.

The doctrine of stare decisis can be divided into 2 components:-

• a decision made by a superior court is binding precedent which an inferior court cannot change
• a court may or may not follow a persuasive precedent

In order to appreciate the application of the doctrine, it is important to have the hierarchical structure of the court system in clear view. In this connection, it is not only pertinent to look at the Malaysian court structure, but also the hierarchical structure of the English courts, as the principles applicable in Malaysia have been derived from those applied in England.