|Flouting stare decisis & the potential impact of European laws on Malaysian common law|
|Thursday, 15 June 2006 09:01pm|
FLOUTING STARE DECISIS & THE POTENTIAL IMPACT OF EUROPEAN LAWS ON MALAYSIAN COMMON LAW: TWO REASONS FOR VIGILANCE
A L R Joseph
Malaysian courts draw their common law inspiration (and indeed inception) from the mother of the common law, England. So when an issue relating to the common law arises, the best starting point for a Malaysian court – assuming that a superior Malaysian court has not addressed the point – is naturally to look at the judgments of the English courts. If there is insufficient assistance from English cases (or even if there is), a Malaysian judge can validly have recourse to other commonwealth decisions notably Australian, Indian, New Zealand and Singapore.
Even if there are Malaysian cases on the point, it is legitimate for a Malaysian court to look at the developments of the law in England to elucidate, expand and clarify the law, especially if the point was grasped by Malaysian courts from English decisions in the first place. It is licit to look to English cases to determine how the law has developed in England and to see if similar developments in Malaysia are appropriate. It is also acceptable to hold that since the common law on the point has developed and moved on in England, it should move on as well in Malaysia.
Those propositions are, however, subject to two very important caveats: (a) Malaysian judges should never lose sight of the operation of and need for the doctrine of judicial precedent or stare decisis; and (b) they must be vigilant against succumbing to the temptation to grasp at every development of the common law in the commonwealth (especially England) without the exercise of great caution.
Dato' Tan Heng Chew v Tan Kim Hor & Anor
The above is the backdrop to the main issue involved in the recent judgment of the Federal Court in Dato' Tan Heng Chew v Tan Kim Hor & Anor (Dato’ Tan Heng Chew Case), in which Abdul Hamid Mohamad FCJ stressed two important matters:
In a nutshell the issue before the Federal Court was fairly straight forward. It had to deal with a judgment of the Court of Appeal which decided that, even though it acknowledged two Federal Court precedents in relation to the test to be applied to determine whether a judge should recuse herself (which test itself was based on a House of Lords judgment), it preferred another test (which appears to be a test propounded by another subsequent House of Lords’ Judicial Committee).
The Acceptable Federal Court Test
The Federal Court in Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan and Mohd Ezam bin Mohd. Nor v. Ketua Polis Negara - following the House of Lords in R v Gough - held that the test to determine whether a judge should recuse herself is to be found in the speech of Lord Goff in R v Goughas follows:
His Lordship then went on to state:
In other words, the correct test to be applied whenever the question of recusal arises is the “real danger of bias” test, as approved by the Federal Court in Mohd Ezam bin Mohd Nor v Ketua Polis Negara, following the Gough principle.
In the Dato’ Tan Heng Chew Case, Abdul Hamid Mohamad FCJ observed as follows:
The Test Preferred By the Court Of Appeal in the Dato’ Tan Heng Chew Case
The Court of Appeal in an “oral judgment” in the appeal in the Dato’ Tan Heng Chew Case decided that the “real danger of bias” was the wrong test and that it should be replaced by a new test as follows (apparently without giving any reason for adopting the new test):
Impact of European Human Rights Laws on English Courts: A Caution
It appeared to Abdul Hamid Mohamad FCJ that the new Court of Appeal test was borrowed from a test propounded by a later House of Lords bench in Porter v Magill, in order to accord with European Convention of Human Rights (‘Convention’) pursuant to the Human Rights Act 1998 (UK) (‘HRA’).
The problem, according to Abdul Hamid Mohamad FCJ, is that the House of Lords in Porter v Magill had good reason to modify the test, that is to say, it needed, under section 3 of the HRA, to interpret UK law in a way that it compatible with the Convention. However, that reason has no bearing in Malaysia.
The Learned Federal Court Judge concluded thus:
Whither the Doctrine of Binding Precedent With a Rebellious Court of Appeal?
In the light of the more recent castigation by Augustine Paul FCJ of a Court of Appeal judge’s failure to adhere to the doctrine of stare decisis in Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd, the observations of Abdul Hamid Mohamad FCJ and Steve Shim CJSS in the Dato’ Tan Heng Chew Case are apropos.
In the latter case, Abdul Hamid Mohamad FCJ observed that:
‘These judgments, being judgments of the Federal Court, are binding on the Court of Appeal. Whether the Court of Appeal agrees with them or not, it is incumbent upon it to apply the test. However, if the court thinks that it has good reasons for disagreeing with the judgments, it may, while following them, point out why they should be reviewed by this court. But the review, if it were to be done, should be done by this court. Until it is actually done by this court, they remain binding on the Court of Appeal. So, the Court of Appeal was wrong in not applying the “real danger of bias” test’.
Steve Shim CJSS was rather more vigorous in his criticism of the Court of Appeal’s failure to abide by binding precedent. He observed in the Dato’ Tan Heng Chew Case as follows:
In respect of the proper place of the “real danger of bias” test as enunciated by the Federal Court, Steve Shim CJSS stated that ‘until such time when the Federal Court holds otherwise, this test must remain entrenched and binding on all inferior courts including the Court of Appeal. Certainty in the law must prevail.’
There are a number of lessons to be drawn from the judgment of the Federal Court in the Dato’ Tan Heng Chew Case:
One could do much worse than to conclude the point about the need to adhere to stare decisis by repeating the closing remarks of Augustine Paul FCJ in Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd as follows:
‘Gopal Sri Ram JCA himself, in recognising the importance of conforming with the doctrine of stare decisis, said in Periasamy s/o Sinnappen v PP  2 MLJ 557 at 582:
(2,611 words inclusive of endnotes)
 MA, LLB, of Gray’s Inn, Barrister, Advocate & Solicitor (Malaya & Singapore)
 Civil Appeal Nos: 02-6-2005(W) & 02-8-2005(W) (4 January 2006) (Abdul Hamid Mohamad FCJ, Steve Shim Lip Kiong, CJSS & Siti Norma Yaakob CJM)
 See Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan  3 MLJ 1;  3 CLJ 65 & Mohd Ezam bin Mohd. Nor v. Ketua Polis Negara  1 MLJ 321;  4 CLJ 701
 R v Gough  All ER 724 (HL)
Porter v Magill  1 All ER 465 (HL)
 Supra n 4
 Supra n 4
 Ibid at p 668
 Ibid at 670
 Supra n 4
 Supra n 4
 Supra n 2 at para 11
 Supra n 2 at para 17 - 19
 Ibid at para 6
 Supra n 5
 Supra n 2 at para 22
 Supra n 5
 Supra n 2 at para 22
 To be fair to the appeal judge who was castigated, Gopal Sri Ram JCA, he did conclude that the Federal Court precedent which Augustine Paul FCJ declared was binding on the Court of Appeal - (or at least the dicta of Dzaiddin FCJ) in Lam Kong Co Ltd v Thong Guan Co Pte Ltd - was obiter: see Fawziah Holdings Sdn Bhd v Metramac Corp Sdn Bhd  1 MLJ 435, 440). To that extent and in that sense Gopal Sri Ram JCA was not blatantly flouting binding precedent.
 Permohonan Sivil No 08-166-2005 (W) (18 April 2006) (http://www.kehakiman.gov.my/jugdment/fc/latest/08-166-05%20(W).htm)
 Supra n 2 at para 20
 Supra n 4
 Supra n 2 in a separate judgment at para 2 - 4
 Supra n 23
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