sources of law (unwritten law)

Question 1

what is unwritten law

Answer 1

► Laws that are not formally consolidated;
► Not enacted by Parliament/State Legislative Assembly; ► Cannot be found in a single document.

Question 2

sources of unwritten law

Answer 2

1. english law
   - common law
   - equity
2. judicial precedent
3. custom

Question 3

who is english common law

Answer 3

william the conqueror

Question 4

common law

Answer 4

♣ English common law is unwritten – not formally enacted – the law is based on decisions of the courts;
♣ The development of English common law started with William the Conqueror’s conquest of ye olde England in 1066;
♣ After this conquest, the Curia Regis (King’s Court) was created to settle disputes all over England;
♣ Judges would travel to villages to settle disputes and then they would return to the city to compare their judgments;
♣ Best judgments were compiled and they were later known an the “common judgment” (or judicial precedent)’;
♣ These judgments were known as the common law because they were ‘common’ to all the King’s court;
♣ It is essential for laws to be common as there must be certainty in law i.e. like cases must be treated alike.

Question 5

equity

Answer 5

●Principles that exist together with common law;
● Created to remedy the defects in common law;
● E.g. the only remedy available for civil wrongs under the common law is damages. This, however, may not be suitable for all cases. For e.g., in some situations, D cannot be ordered to do or refrain from doing a particular act. Hence, equitable remedy was created to remedy this defect by introducing the remedy of specific performance, rescission, injunctions and others.
● Equity was developed by the Lord of Chancellor and the old court of chancery;
● Equity is not a complete body of rules that can exist on its own – it is created to supplement the common law.

Question 6

historical development of equity

Answer 6

 The courts of common law failed to provide adequate remedy in some cases. Therefore, litigants petitioned the King for extraordinary relief;
 The King through the Lord Chancellors set up special courts i.e. court of chancery and the rules passed became law;
 The lord chancellors were trained as priests and acted as keepers of the King’s conscience;
 When faced with petitions alleging injustice suffered at common law, the lord chancellors did not decide according to the judicial precedents. Instead, he acted according to Christian’s precepts of fairness or their own conscience.

Question 7

EQUITY: HISTORY

Answer 7

♠ A practice of referring cases to the Lord Chancellor then emerged;
♠ The Court of Chancery developed with separate jurisdiction and continued to apply the rules which were known as:

Question 8

judicial precedent

Answer 8

 The doctrine of judicial precedent or stare decisis –
 Ratio established in higher courts binds the lower courts.

♦ Not everything in case law sets a precedent. It is the ‘ratio decidendi’ of a judge’s decision that is binding.
“The ratio decidendi of a case may be understood as the statement of law applied in deciding the legal problem raised by the concrete facts of the case.”
“…it is not the actual decision in a case that sets the precedent; that is set by the rule of law on which that decision is founded. This rule, which is an abstraction from the facts of the case, is known as the ratio decidendi of the case.”
^ G. Slapper & D. Kelly. 1993. English Legal System, Cavendish

Question 9

ratio decidendi vs obiter dicta

Answer 9

obiter dictum: “any statement of law that is not an essential part of the ratio decidendi is strictly speaking, superfluous’ and any such statement is referred to as obiter dictu, ie said by the way”

“although obiter dicta statements do not form part of the binding precedent, they are persuasive authority and can be taken into consideration in later cases, if the judge in the later case consider it appropriate to do so”

Question 10

example of ratio and obiter

Answer 10

ratio:
- Judge finds Ali guilty of theft.
- According to the judge, Ali is guilty of theft because he stole the car with dishonest intention to permanently deprive Abu of the car.

obiter:
- Judge further says that:
- If Ali had found the car deserted on the road, then he may not be guilty of theft.

Question 11

case ratio vs obiter dicta

Answer 11

• Majlis Perbandaran Kuantan v Kining Exeton Sdn Bhd [2021] MLJU 536

”In my view, it can therefore be discerned that the distinction between ratio decidendi and obiter dicta is fact
sensitive depending on the circumstances of the case. It would be ratio decidendi if it concerns the fact in issue and hence necessary to dispose the case. It would otherwise be obiter dicta if made in passing without mature argument or is merely advisory in nature.”

Question 12

advantages of stare decisis

Answer 12

❶ (a) time-saving:
► The case need not be argued again;
► Saves money for potential litigants since they can decide whether or not to sue based on the decision of previous cases.

❷ Creates Certainty:
► When a case has been decided and the principles of law (ratio descidendi) has been established, individuals will act according to the decision as the principles will not be changed by other courts;
► The case of Donoghue v Stevenson established duty of care of manufacturers for negligence. All manufacturers having knowledge of this case will act accordingly so as to avoid liability for negligence.

❸ Justice:
► Cases with similar facts will be decided
similarly – not based on judges discretion;

❹ Flexible:
► Common law principles can be formulated by judges without having to wait for Parliament to pass law.

❺ Practical:
► More practical since they are derived from actual situations.

Question 13

disadvantages of stare decisis

Answer 13

▲(a) Uncertainty:
- Many cases are reported and can be cited as authorities. Hence, judges can choose which authority they wish to follow by distinguishing the facts of the case;
▲(b) Prolonged injustice:
- If a precedent is unjust, injustice is prolonged as judges are bound to follow the ‘unjust’ principle.

Question 14

the operation of judicial precedent in malaysia

Answer 14

2 ways

• vertical operation
• horizontal operation

Question 15

COURTS’ HIERARCHY IN MALAYSIA

Answer 15

BEFORE 1985
1. Privy Council
2. Federal Court
3. High Court
4. Sessions Court
5. Magistrate Court
6. Penghulu’s Court

1985-1995
1. Supreme Court
2. High Court
3. Sessions Court
4. Magistrate Court
5. Penghulu’s Court

Question 16

judicial precedent in Malaysia now

Answer 16

1995 - present

1. Federal Court
   - Binds all courts below
2. Court of Appeal
   - Bound by FC’s (D)
3. High Court
   - Bound by FC & CA’s (D)
4. Sessions Court
   - Bound by all higher courts
5. Magistrate Court
   Bound by all higher courts (except SC)

Question 17

Conflicting decisions

Answer 17

Conflicting decisions by higher courts
* See Dalip Bhagwan Singh v PP [1998]

FC’s decision
* All courts below must follow the latest decision;
* The latest decision represents the existing state of law and prevails over the earlier one.

CA’s decision
* Lower courts may choose to follow either decision irrespective of whether it is the earlier or later decision;
* Date of decision does not matter

Question 18

horizontal operation

Answer 18

“By horizontal operation of judicial precedent, it means that a court usually an appellate court is bound by its own decision, the decision of its predecessors and decisions of courts of co-ordinate jurisdiction. In this circumstance, the Federal Court, the Court of Appeal and even the High Courts in Malaysia are bound to follow their own prior decision and prior decisions of a court of the same level, whether present or past. The horizontal operation of the doctrine judicial precedent is however observed to be more problematic compared to vertical operation. This is because both the Federal Court and the Court of Appeal have been found in many cases not to allow themselves to be bound by their own prior decisions or by decisions of a court of coordinate jurisdiction whether present or past.”

• [G.M Murtala et. al., “Operation of Judicial Precedent in Malaysia and Nigeria: A Comparative Analysis” (2015) International Journal of Law, Vol. 1, Issue 1, pp. 29-35]

Question 19

STATUS OF PRIVY COUNCIL’S DECISIONS

Answer 19

► (1) When PC existed in Malaysia, its decisions were binding on Malaysian courts in 2 circumstances:

(a) where the (D) was in a case on appeal from Malaysia;

(b) where the (D) in a case on appeal from another common law country and the law involved was the same as in Malaysia. [see Khalid Panjang v PP (1964) 3 MLJ 108].

► (2) When PC decides on an appeal from another country, the said (D) is merely persuasive and not binding. [see Arurumugam Pillai v Govt of Malaysia]

Question 20

After the abolition of Privy Council (PC):

Answer 20

(a) the current Federal Court is free to depart from
PC’s (D) –
(b) courts below are bound to follow PC’s (D) unless they have become inconsistent with a FC’s (D);
(c) Past (D) of PC that were binding became part of Malaysian law and remained so unless altered by a competent authority.

Question 21

the statues of the supreme court’s decision

Answer 21

FC bound by SC?
Civil: No;
- FC does not regard itself as bound – see Malaysia National Insurance v Lim Tiok where FC overruled SC’s (D)

Criminal: Yes;
- FC holds itself as bound by the (D) of SC – seeTan Boon Kean v PP; Arulpragasan v PP

Other courts?
- Bound to follow SC’s (D) unless overridden by FC
- However, there are cases where the lower courts have refused to follow SC – see Ibrahim bin Ismail v Hasnah; BUT in Metramac Corp S/B, FC held that HC must follow SC.

Question 22

federal court

Answer 22

Civil
* Free to depart from own (D) if necessary:
* e.g. Tan Ying Hong v Tan Sian San (FC departed from Adorna Properties v BoonSom Boonyamit);
* Indira Ghandi (2018) (FC departed from Subashini)
`
Criminal
* Dalip Bhagwan Singh v PP:
* FC held that it has
“never refused to depart from its own decision when appeared right to do so.”

Question 23

COURT OF APPEAL

Answer 23

► Bound by own (D) – but see exceptions provided in Dalip Bhagwan Singh v PP (which adopted Young v Bristol):
❶ (D) of the CA given per incuriam need not be followed;
❷ when faced with a conflict in respect of its own previous (D), the CA may choose which (D) to follow irrespective of the date of the (D);
❸ the CA need not follow its own (D) if the (D) has been overruled by the FC or of they are inconsistent with the (D) of the FC;
►FC further clarified that the courts below the CA could not rely on the per incuriam exception applied by the CA for itself. (e.g. Sessions Court cannot refuse to follow HC on the grounds that it is per incuriam).

Question 24

but in court of appeal

Answer 24

BUT
See CA’s decision in the case of PP v Yuneswaran A/L Ramaraj [2015] 6 MLJ 47. The CA departed from its own decision in Nik Nazmi Ahmad v P.P [2014] 4 MLJ 157 on the constitutionality of s.9(5) Peaceful Assembly Act.

Question 25

HIGH COURT AND LOWER COURTS

Answer 25

1. HC judges do not regard themselves as bound by other HC (D)
    See for e.g. Sundralingam v Ramanathan Cheliar.
2. Lower courts (SC & MC) are not bound by their own (D) and each other’s (D).

Question 26

final points for judicial precedent

Answer 26

❶ Judicial precedent is another source of law, albeit unwritten;
❷For a judgment to be binding, it must be:
(a) given by a court of a higher jurisdiction; and
(b) the facts and issues are pari materia with the existing case.
❸ Every court must follow the (D) of a higher court – cannot refuse to follow on the grounds of per incuriam.
❹ There are ways in which judges can avoid or alter precedents, namely:
- overruling
▪ A higher court sets aside a legal ruling established in a previous case;
▪ Operates retrospectively where the principles of law being overruled is held to never have existed.

 - distinguishing A judge may consider the facts before him as significantly different from the facts of an earlier case and he thus declares himself as not bond by the earlier precedent. 36