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FLOUTING STARE DECISIS & THE POTENTIAL IMPACT OF EUROPEAN LAWS ON MALAYSIAN COMMON LAW: TWO REASONS FOR VIGILANCE

 By

A L R Joseph^[1] 

Introduction

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^[2]

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^[3] (Dato’ Tan Heng Chew Case), in which Abdul Hamid Mohamad FCJ stressed two important matters:

1. the importance of courts lower down the judicial hierarchy adhering strictly to the doctrine of stare decisis; and

2. that Malaysian courts should be careful when considering the proper application of English decisions on local common law because English courts are subject to factors extraneous to the proper development of the common law (as such) such as European law and European human rights law, which have no application or relevance to Malaysia.

The Issue

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^[4] 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^[5]), it preferred another test (which appears to be a test propounded by another subsequent House of Lords’ Judicial Committee^[6]).

The Acceptable Federal Court Test

The Federal Court in Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan^[7] and Mohd Ezam bin Mohd. Nor v. Ketua Polis Negara^[8] - following the House of Lords in R v Gough^[9] - 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 Gough^[10]as follows:

‘In my opinion, if, in the circumstances of the case, it appears that there is a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand. I am by no means persuaded that, in its original form, the real likelihood test required that any more rigorous criterion should be applied. Furthermore, the test so stated gives sufficient effect, in cases of apparent bias, to the principle that justice must manifestly be seen to be done, and it is unnecessary, in my opinion, to have recourse to a test, based on mere suspicion, or even reasonable suspicion, for that purpose’.

His Lordship then went on to state:^[11]

‘Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than likelihood, to ensure that the court is thinking in terms or real danger rather than probability bias.’ (emphasis mine)

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,^[12] following the Gough^[13] principle.^[14]

In the Dato’ Tan Heng Chew Case,^[15] Abdul Hamid Mohamad FCJ observed as follows:

‘Let us look at the judgments of this court on the issue. First, the Majlis Perbandaran Pulau Pinang's case (supra) where this court discussed the issue at great length, referring to numerous authorities and concluded that "the real danger of bias" test given in R v. Gough (supra) was to be preferred.

‘The same case was referred to in the judgment of this court in Allied Capital Sdn. Bhd. v. Mohamed Latiff bin Shah Mohd and Another Application [2001] 2 MLJ 305; [2001] 2 CLJ 253. In fact that part of the judgment in Majlis Perbandaran Pulau Pinang (supra) that contains the statement that the court preferred the "real danger of bias" test was reproduced. However, the judgment in Allied Capital Sdn Bhd. (supra) did not say in so many words that the court adopted that test. My reading of the judgment is that the passage was quoted with approval

‘Then comes the case of Mohamed Ezam bin Mohd. Nor (supra). The appeal was heard by a 5-member panel which delivered a single unanimous judgement. It should be noted that in that case, learned counsel for the appellant relied on Webb v The Queen [1994] 68 ALJR 582, in urging the court to adopt "the reasonable apprehension or suspicion" test. The court categorically ruled:-

‘Having considered the authorities cited and their reasonings, we would follow Gough which is that the test to be applied in the present case is the 'real danger of bias' test. Hence, the question here is whether having regard to the facts and circumstances, was there a real danger of bias on the part of the learned trial judge when he heard the habeas corpus application involving the appellants?’

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):^[16]

‘Would a right thinking member of the public armed with the facts before us come to the conclusion that the appellant would receive justice at the end of the trail before the same judge?’

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,^[17] in order to accord with European Convention of Human Rights (‘Convention’) pursuant to the Human Rights Act 1998 (UK) (‘HRA’).

The modified test in Porter v Magill^[18] was as follows:^[19]

‘[T]he question is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.’

The problem, according to Abdul Hamid Mohamad FCJ, is that the House of Lords in Porter v Magill^[20] 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:^[21]

‘I do not think that the “old test” would lead to an injustice or that “the new” test would lead to more justice. What is more important is the integrity and honesty of the judges themselves.’

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^[22] failure to adhere to the doctrine of stare decisis in Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd,^[23] 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:^[24]

‘These judgments,^[25] 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:^[26]

‘I agree entirely with his Lordship's (Abdul Hamid Mohamad FCJ) observation that the Court of Appeal is bound by the doctrine of stare decisis to follow the “real danger of bias” test for recusal adopted by 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 to the rule of law. It has attained the status of immutability…. It is ... necessary to reaffirm the doctrine of stare decisis which the 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…. Judicial hierarchy must be observed in the interests of finality and certainty in the law and for orderly development of legal rules… Failure to observe judicial precedents would create chaos and misapprehensions in the judicial system.’

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.’

The Lessons

There are a number of lessons to be drawn from the judgment of the Federal Court in the Dato’ Tan Heng Chew Case:

1. In the common law system, as operated and practised in Malaysia, courts lower down in the judicial hierarchy (as the Court of Appeal is vis-à-vis the Federal Court), whether they agree with a binding judgment of a higher court or not, they are bound by such judgments. They are entitled to voice their reasons for disagreeing with such binding precedents and even recommend that the higher courts should review them. However, they are disentitled from acting in blatant disregard of such precedents.

2. The consequences of a failure to adhere to binding precedent are dire for failure to observe judicial precedents would create chaos and misapprehensions in the judicial system. Certainty in the law must prevail.

3. Malaysian courts must exercise caution, and be vigilant, when they consider the development of the common law by the English courts. This is because after the accession of the United Kingdom to the European Union after the European Communities Act 1972 (UK) and after the HRA, English courts are statute bound to construe all English laws (whether statutory or common law) in ways that make them as compatible as possible to European law and the Convention. These factors are irrelevant in the context of Malaysia and so to take account of changes made by English courts to the common law pursuant to account having been taken of such factors would lead to a corruption of the common law as properly understood.

Conclusion

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:^[27]

‘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 [1996] 2 MLJ 557 at 582:

“Lastly, the learned appellate judge did not sufficiently address his mind to the decision in Khoo Hi Chiang. We find the cavalier fashion in which he approached the judgment of a five-member bench of the Supreme Court in a case which was an authority binding upon him to be quite appalling. We are convinced that the learned appellate judge ought not to have brushed it aside as he did.

We may add that it does not augur well for judicial discipline when a High Court judge treats the decision of the Supreme Court with little or no respect in disobedience to the well-entrenched doctrine of stare decisis.

We trust that the occasion will never arise again when we have to remind High Court judges that they are bound by all judgments of this Court and of the Federal Court and they must, despite any misgivings a judge may entertain as to the correctness of a particular judgment of either court, apply the law as stated therein.”

‘We can only add that the castigation of a judge of the High Court for not respecting the doctrine of stare decisis must apply with greater force to a judge of the Court of Appeal.’

(2,611 words inclusive of endnotes) 

ENDNOTES

[1] MA, LLB, of Gray’s Inn, Barrister, Advocate & Solicitor (Malaya & Singapore)

[2] 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)

[3] Ibid

[4] See Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 MLJ 1; [1999] 3 CLJ 65 & Mohd Ezam bin Mohd. Nor v. Ketua Polis Negara [2002] 1 MLJ 321; [2001] 4 CLJ 701

[5] R v Gough [1993] All ER 724 (HL)

[6]Porter v Magill [2002] 1 All ER 465 (HL)

[7] Supra n 4

[8] Ibid

[9] Supra n 4

[10] Ibid at p 668

[11] Ibid at 670

[12] Supra n 4

[13] Supra n 4

[14] Supra n 2 at para 11

[15] Supra n 2 at para  17 - 19

[16] Ibid at para 6

[17] Supra n 5

[18] Ibid

[19] Supra n 2 at para 22

[20] Supra n 5

[21] Supra n 2 at para 22

[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 [2006] 1 MLJ 435, 440). To that extent and in that sense Gopal Sri Ram JCA was not blatantly flouting binding precedent.

[23] Permohonan Sivil No 08-166-2005 (W) (18 April 2006) (http://www.kehakiman.gov.my/jugdment/fc/latest/08-166-05%20(W).htm)

[24] Supra n 2 at para 20

[25] Supra n 4

[26] Supra n 2 in a separate judgment at para 2 - 4

[27] Supra n 23