Sources Of Law In Malaysia Essay In English

Introduction to the Sources of Law in Malaysia

 

By Dr Sharifah Suhanah Syed Ahmad

 

Dr. Sharifah Suhanah Syed Ahmad is Associate Professor at the Faculty of Law, University of Malaya, Kuala Lumpur, Malaysia.

 

Published February 2012
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Table of contents

1. Introduction: Early Legal Systems

2. The Malacca Sultanate (1400-1511)

3. The British Era

             3.1 Introduction

             3.2 Legislation

             3.3 Case Law as a principal source of law

4. The Modern Era

              4.1 The Federal Constitution

               4.2 Acts of Parliament, State Enactments and Subsidiary Legislation

               4.3 Judicial Decisions

               4.4 The application of English common law and rules of equity – limitations under the Civil Law Act, 1956

5. The Position of Islamic Law

6. Conclusion

 

1. Introduction: Early Legal Systems

Prior to colonization by western powers, a form of rudimentary, tribal legal system was said to exist on the Peninsula. [ [1] ] Various aboriginal tribes had been in occupation of the Peninsula as well as Borneo long before foreign settlers arrived.  Although their laws were primitive and unwritten, their organizational abilities were adequate and served as a model for later Malay villages or kampongs .  For example, the head of the village or penghulu was an organizational social structure derived from the Negrito tribe. [ [2] ] The penghulu of any village or kampong usually had full civil and criminal powers over his flock.

 

Although the early peoples of the Malay Peninsula were varied, they shared a similar belief system, which enabled the easy absorption of the Hindu religion, which was to follow.  These early societies were characterized by animism and ancestor worship.  Nature and all natural elements were important, as being primarily agriculturalists; they relied heavily on a bonding with nature. [ [3] ]

 

Records regarding the existence of a large Hindu empire in the Malay Archipelago were derived from the Tang Dynasty (AD 618-906).  This empire encompassed lands across the Straits of Malacca and parts of Java, including a place north of Palembang in Sumatra called Melayu .  This was the kingdom of Srivijaya . Srivijayan society was known to be both highly civilized and cultured and the kingdom itself a centre of learning.  One of the most lasting legacies of this Hindu rule is the system of monarchy.  The concept of kingship is based on the Hindu concept of sakti , which literally translates into the king having powers, which are not of this realm. During the Malacca Sultanate, this concept evolved into the concept of daulat .  The concept of daulat differs from sakti in that the king is not regarded as one having supernatural powers, but the idea of kingship is rooted to those having particular or peculiar characteristics, which separates him from the rest of the ordinary populace.  Hence, this clothed the king, or raja with his right to rule.  The king’s power and rule over his subjects were absolute and it was not possible for any subject to question or go against his wishes or orders.  This concept survived well into and beyond the Malacca Sultanate.

 

Another lasting legacy of Hindu rule is the adat or customary laws they leave behind.  Prior to the arrival of the British in Malaya, the Malays and the natives of Sabah and Sarawak, followed their own customs and traditions or adat .  There are two main streams of adat – the adat perpateh and the adat temenggong .  Both forms of adat are believed to have originated from Sumatra, especially from the district of Minangkabau.  Early migrants from Minangkabau concentrated themselves in two districts of the Malay Peninsula - Naning in Malacca, and the State of Negeri Sembilan.  The adat temenggong is patrilineal while the adat perpateh is matrilineal.  The system of administration of the adat temenggong is autocratic, while that of the adat perpateh is democratic.  In the administration of civil and criminal law, both forms of adat admit opposing characteristics.  For example, in the adat temenggong criminal punishment is on the basis of an eye for an eye, while in the adat perpateh , the emphasis is not so much upon punishment for the offence but upon remedial measures to correct an injustice. [ [4] ]

 

The British colonial administration was brought into contact with elements of the Malay adat , particularly the adat perpateh , through disputes pertaining to property, in particular the issue of division of property between husband and wife upon divorce.  A substantial amount of case law grew around this issue of harta sepencarian , or jointly acquired property. [ [5] ] Subsequently, the British colonial administration enacted legislation to protect some instances of custom, particularly those pertaining to land.  An example of this is the Customary Tenure Enactment of Negeri Sembilan (Cap 215). [ [6] ] In Malacca, custom received legislative sanction through the Malacca Land Customary Rights Ordinance. [ [7] ]

 

The arrival of the British in North Borneo likewise transformed native customary law from being an incidence of an inherited oral tradition to a set of clearly defined, written rules operating within an established administrative and judicial framework.  This formalization of native customary law ensures its survival through written codes.  Some examples of this codification include the Sea Dayak (Iban) Fines 1952 and the Orang Ulu Customary Code of Fines 1957.  The customary laws of the Dayaks of the Third, Fourth and Fifth Divisions of Sarawak have been codified in the Tusun Tunggu , a code of customary law, most of it pertaining to land matters. [ [8] ]   In Sarawak, the Native Courts Ordinance 1955, which was later replaced by the Native Courts Ordinance 1992, established a system of native courts to hear and try cases involving native customary law.  In Sabah, native courts are established under the Native Courts Enactment, 1992.

 

2. The Malacca Sultanate (1400-1511)

The success of Srivijaya as a great trading nation was continued by the new kingdom of Malacca.  Founded by a runaway prince from Palembang, the significance of Malacca to the Malaysian legal system began with the coming of Islam to the Peninsula from about the beginning of the ninth century AD.  By the thirteenth century, trade in Southeast Asia was overtaken by Muslim traders from India.  Malacca was believed to have received Islam in the early fifteenth century.

 

As a result of the Islamisation of Malacca, and subsequently other states in the Peninsula, Islamic laws were introduced and in the early days, were applied alongside with the adat or customary law.  This period also saw what was possibly the first evidence of the emergence of written law, as the kingdom of Malacca produced two major legal digests, which formed the main source of written law in Malacca – the Hukum Kanun Melaka , and the Undang-Undang Laut Melaka .  The Hukum Kanun consists of 44 chapters, which touched upon matters such as the duties and responsibilities of the Ruler, prohibitions amongst members of society and penalties for civil and criminal wrongs and family law.  The Undang-Undang Laut consists of 25 chapters, which covered maritime matters, such as the duties and responsibilities of ships’ crew, laws pertaining to voyages and trade.  The law contained in the above written codes are said to be based on Islamic law of the Shafii School, together with elements of local custom. [ [9] ]   Adat , in particular the adat temenggong influenced the laws pertaining to crime and punishment.

 

The Malacca written codes were responsible for the growth of other written codes in other states of the Peninsula: Pahang Legal Digest 1595, the laws of Kedah 1605, the Laws of Johore 1789, and the 99 Laws of Perak, 1878.

 

In 1511, Malacca was overrun by the Portuguese, and in 1641, by the Dutch.  While much is known about the system of administration of both the Portuguese and the Dutch, [ [10] ] not much is known about the laws which were applied to the local inhabitants of Malacca.  It was recorded that the Dutch East India Company had decided on a standard regulation, which would apply in all its territories in the Indian Archipelago.  Consequently, law books containing a collection of the most-used regulations in Java were sent to Malacca.  These books were supposed to have guided the Court of Justice in Malacca. [ [11] ]   The question remains, as in the case of the Portuguese, whether the regulations contained in these books were applied to all inhabitants of Malacca, local as well as foreign, and it was not clear how the Dutch treated the issue of personal laws should these come into conflict with the laws contained in the books.  The issue is now academic as the arrival of the British firmly entrenched English law as the “law of the land” or lex loci of Malaysia.

 

3. The British Era

3.1 Introduction

From the perspective of legal history, an argument could be made that the British colonisation of Malaysia left behind such a lasting legacy of laws and a legal system due to a difference of opinion on the issue of interpretation of the First Charter of Justice granted to Penang in 1807.  In the case of Regina v Willans, [ [12] ] the court would not accept Penang as an inhabited territory when it was ceded to the East India Company by the Sultan of Kedah.  This was despite the fact that evidence showed there were settlers on the island (four Malay families were found encamped upon it when it was first occupied by the British). [ [13] ] There was a state of “legal chaos”, where Malays followed Muslim law, and the Chinese and Indian settlers followed their own personal laws.  Due to the legal confusion, which existed in Penang, the presumption was that the Charter of 1807 was granted with the aim of providing a remedy, and that was that the law of England be administered in Penang. [ [14] ] Two principal sources of law emerged – legislation and case law.

 

3.2 Legislation

The Straits Settlements comprised of Penang, Singapore and Malacca and was a British colony under direct British administration.  The Charters of Justice (1807, 1826 and 1855) introduced and applied English law and established courts of justice.  The Straits Settlements was treated as part of the British Indian Empire and came under the legal, political and executive sovereignty of the Bengal Presidency. [ [15] ]   As a result, the laws introduced were based upon similar laws introduced and applied in India, for example, contract law which is based upon the  Indian Contracts Act, evidence, criminal law and criminal procedure.

 

The Straits Settlements ceased to be part of the Indian administration from April 1867 with the passing of the Government of the Straits Settlements Act 1866 (29 & 30 Victoria c 115), whereby the Legislative Council of the Straits Settlements was given legislative authority.  Ordinances began to be promulgated and published with the establishment of the Straits Settlements government gazette on1 April 1867. [ [16] ]

 

While the Straits Settlements were colonies under direct British rule, the rest of the states in Peninsula Malaysia were ruled by Sultans who were embroiled in various succession disputes in their respective states.  In the tin-rich state of Perak, succession disputes became intertwined with disputes between Chinese secret societies for possession of the rich tin deposits.  British intervention in these disputes consolidated British political power in the Malay states. Treaties were entered into, whereby, in return for British protection, it was agreed that the Sultan “receive and provide a suitable residence for a British officer, to be called a Resident, who shall be accredited to his court, and whose advice must be asked and acted upon all questions other than those touching upon Malay religion and custom.” [ [17] ]  With the signing of the Treaty of Federation 1895, four states – Perak, Selangor, Negeri Sembilan and Pahang became “Protected States” or more commonly known as the Federated Malay States (FMS).

 

Administrative coordination was achieved by the Governor of the Straits Settlements who was concurrently designated the High Commissioner of the FMS.  Legislation was enacted by a Federal Council constituted in 1909 with the rulers as members.  This arrangement continued until the amalgamation of all States by the British Military Administration in 1946 to form the Malayan Union. [ [18] ]

The difference between the Unfederated Malay States (UMS – Kelantan, Kedah, Perlis, Terengganu and Johore) and the FMS is that these states maintained some autonomy over local issues, but control over foreign affairs and other important aspects of government were in the hands of the British.  These states were likewise administered by the Governor of the Straits Settlements who acted as High Commissioner of these states.

 

Legislation was enacted by the State Council of each State.  Laws passed by the UMS are recorded in the following sources: [ [19] ]

(a)            Enactments of Johore form 1907-1942, published annually by the Government Printing Office in Johore Bahru;

(b)            Government of Kedah Enactments, published in Alor Star from 1906 – 1928.  Between 1929 and 1938, ten further volumes entitled State of Kedah Enactments were published:

(c)             Enactments of the State of Kelantan, published annually from 1904-1941;

(d)            Enactments of Perlis, published annually by the Government Press, in Jawi and English, from 1909-1942;

(e)             Annual Volumes of Trengganu Enactments, 1904-1914.

 

Following the end of the Japanese occupation of Malaya (1942-1945), the British government mooted the idea of a Malayan Union comprising all the Malay states and Penang and Malacca.  However, this was vehemently opposed by the Malays, as a result of which it was disbanded in 1948 in exchange for a federal system.  The Malayan Union government press published the following laws:

(a)            the Malayan Union Government Gazette, published from 1 April 1946 – 31 January 1948;

(b)            Ordinances and Rules, 1946 – 1947;

(c)             Malayan Union and Federal Ordinances and State and Settlements Enactments passed during the year 1948.

 

The concept of federation established a central Federal Government while preserving the integrity of the individual states and their Rulers.  The Federation of Malaya Agreement 1957, which revoked the earlier Agreement of 1948, gave birth to the Federal Constitution and an independent Malaya on 31 August 1957.

 

Laws that were promulgated at Federal and State levels were published as part of the respective Federal and State Gazettes.  After 1957, Federal Legislation continued to be termed “Ordinances” due to constitutional provision, which provided for the Legislative Council established under the Federation of Malaya Agreement 1948 to continue functioning until 1959.  The Council was dissolved in 1959 by proclamation, and thereafter Federal Legislation came to be termed “Acts” with the first Parliament sitting on 11 September 1959.

 

The Malaysia Act 1963 created the State called Malaysia, which is made up of eleven states of the former Federation of Malaya, Sabah, Sarawak and Singapore.  In 1965, Singapore left Malaysia and became an independent State.

 

3.3 Case Law as a principal source of law

In addition to legislation introduced by the British colonial government, which was based on English law, English law was liberally applied by English judges.  However, in matters of personal law, such as marriage and divorce and inheritance, judges made decisions based on local customs. [ [20] ] However, in matters of trade and commerce the position was different.  This is because there is a dearth of local custom or established customary law pertaining to such matters, which could have formed the basis for the eventual development of “local” commercial law.

 

Secondly, it could be argued that it was acceptable to apply local customs or customary law to family-related matters because it would not have created much of an impact beyond the personal or family unit itself.  However, if by accepting a particular custom it would create an impact beyond the family unit, especially if it has economic or financial implications, such custom would not be acceptable as it would be contrary to “public policy”. [ [21] ]   Where custom was found to be unacceptable, the court would apply principles of English law to displace the custom.  In this way, some customs do “die” to be replaced with a principle of law, which was essentially alien to the people and their way of life.

 

In commercial matters or “mercantile law”, generally there is almost a wholesale application of English law.  It began through the work of English judges or an English-trained judiciary, [ [22] ] and was later formalized through legislation.  The Civil Law Enactment was passed in 1937 for the Federated Malay States, which provided for the reception of English Law.  In 1951, the Enactment was extended to the other Malay States and in 1956, the Civil Law Ordinance was enacted which introduced English law uniformly throughout the Federation of Malaya. [ [23] ]

 

The Sarawak Application of Laws Ordinance 1949 applied the common law of England, rules of equity and English statutes of general application to Sarawak, while in Sabah similar provision existed in the Sabah Application of Laws Ordinance 1951.

 

However, no part of the law of England relating to the tenure or conveyance or assurance of or succession to any immovable property is applicable in Malaysia. [ [24] ]

 

4. The Modern Era

Malaysian legislation comprises of the following:

1.               The Federal Constitution

2.               Constitutions of each of the 13 States of Malaysia

3.               Federal Acts of Parliament

4.               State Enactments

5.               Subsidiary Legislation.

 

4.1 The Federal Constitution

Article 4(1) of the Federal Constitution declares the Constitution as the “supreme law of the Federation”, and any law passed after Merdeka Day, which is inconsistent with the Constitution, shall, to the extent of the inconsistency, be void.

 

What is the position of laws passed on or before Merdeka Day, which are inconsistent with the Federal Constitution?  The answer is found in Article 162(1) which provides that existing laws shall, until repealed by the authority having power to do so under this Constitution, continue in force on and after Merdeka Day with such modifications as may be made therein under this Article and subject to any amendments made by Federal or State law.

 

Under Article 162(6), any court or tribunal applying the provision of any existing law which has not been modified on or after Merdeka Day may apply it with such modification as may be necessary to bring it into accord with the provisions of the Constitution. [ [25] ]

 

Malaysia is a federation with a strong central government at its core and 13 state governments.  Power is divided between the federal government and the various state governments in accordance with Part VI of the Federal Constitution, which addresses the issue of relations between the Federation and the States.

 

With regard to the legislative power of the Federation and the States, Article 74(1) provides that Parliament may make laws with respect to any of the matters enumerated under the Federal List [ [26] ] or the Concurrent List of the Ninth Schedule. Article 74(2) provides that the Legislature of a State may make laws with respect to any of the matters enumerated in the State List or the Concurrent List of the Ninth Schedule. [ [27] ] Article 75 provides that if any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.

 

4.2 Acts of Parliament, State Enactments and Subsidiary Legislation

Malaysian legislation is published in the Gazette , and the format and mode of publication of the Gazette are stipulated under section 18 of the Interpretation Acts 1948 and 1967 (Act 388).  This section provides that the Federal Gazette shall be published in five parts:

(a)            Acts Supplement, published as and when necessary, which contains all Acts of Parliament and all Ordinances promulgated by the Yang diPertuan Agong.

(b)            Legislative Supplement A, published as and when necessary, which contains all Royal Proclamations, Orders, rules, regulations and by-laws.

(c)             Legislative Supplement B, which contains all subsidiary legislation other than that required to be published in Legislative Supplement A.

(d)            Bills Supplement, containing all Bills.

(e)             Matters required to be published in the Gazette or which the Government deems it necessary to publish for general information.

 

State laws, termed Enactments (or Ordinance in Sarawak) are published in the State Gazettes. Since 1969, all Federal Acts are issued under Laws of Malaysia series by virtue of the Revision of Laws Act 1968.  This Act empowers the Commissioner for Law Revision to revise as well as print such laws as the Commissioner deems fit.  All Acts of Parliament are now sequentially numbered, beginning with the Revision of Laws Act 1968 as “Act 1”.

 

In December 2009, the government established the Malaysian Law Reform Committee.  This Committee is tasked with conducting research into Malaysian laws to examine their relevance as well as their benefit to the community or the public.

 

4.3 Judicial Decisions

 

Federal Court

 


Court of Appeal

 

 


                                    High Court                                                                                                   High Court

                                     (Malaya)                                                                                           (Sabah & Sarawak)

 


Sessions Court

 

Magistrates’ Courts

 

Prior to 1985, the Judicial Committee of the Privy Council (JCPC) constituted the highest Court of Appeal [ [28] ] .  Appeals to the Privy Council in criminal and constitutional cases were abolished in 1978.  In 1985, all civil appeals to the Privy Council were abolished.

 

The common law system relies heavily on case law or judicial opinions.  In such a system, it is crucial for the administration of justice that “like cases should be treated alike”; otherwise, the system becomes a fertile breeding ground for unfairness.  Stare decisis , which means to stand by decisions previously made, serves a useful purpose in this regard, as its application would ensure a measure of certainty in the law and it promotes a systematic and logical development of the common law.  However, a strict adherence to the doctrine could also cripple the development of the common law, particularly when faced with new situations, which never existed before.  Thus, although the Federal Court had expressed that the principle of stare decisis is a “cornerstone of our system of jurisprudence”, [ [29] ] it also recognised that there is a need for the Court to depart from precedence when a previous decision was wrong, uncertain, unjust, outmoded or obsolete under modern conditions. [ [30] ]   Similarly, the current Malaysian superior courts do not consider themselves bound by previous decisions of the Privy Council, even though they may be given on appeal from Malaysia. [ [31] ] 

 

Just like any other common law jurisdiction, as Malaysian law relies heavily on judicial decisions or case law, a good system of law reporting is essential.  Law reporting in Malaysia began in the latter part of the nineteenth century.  Early law reports record decisions of the Straits Settlements and Federated Malay States judiciary – Straits Settlements Law Reports, 1893-1931; Federated Malay States Law Reports, 1906-1941; Kyshe’s Reports, 1808-1890.  Currently, three major law-publishing houses vie with each other in the publication of law reports.  The Malayan Law Journal (MLJ) is published by Lexis-Nexis Malaysia, the Current Law Journal (CLJ) is published by CLJ, and Sweet and Maxwell publishes the All Malaysia Reports (AMR).  CLJ also publish the Industrial Law Report (ILR) and recently Lexis-Nexis Malaysia began publishing the Industrial Law Journal (ILJ). [ [32] ]

 

4.4 The application of English common law and rules of equity – limitations under the Civil Law Act, 1956

The direction under the Civil Law Act 1956 to apply the common law of England and rules of equity is limited, in West Malaysia, by the cut-off date of 7 April 1956. [ [33] ]   Strict compliance with this provision would mean that developments in the common law after 7 April 1956 cannot be received by Malaysian courts, and the only avenue would be for Parliament to enact laws which would incorporate latest developments, thereby keeping Malaysian law abreast of the changes.  Malaysian judges have, on many occasions, ignored this injunction and have received developments made by judges of the common law (particularly English judges) beyond 1956.   For example, in Saad Marwi v Chan Hwan Hua & Anor , [ [34] ] the Malaysian Court of Appeal decided that it was time for Malaysia to recognise the broader doctrine of inequality of bargaining power which was developed by English courts after 1956 and applied in other common law jurisdictions such as Australia, New Zealand, Canada and the United States.  However, in other cases, especially where policy considerations matter, the injunctive cut-off date of 7 April 1956 has been used by Malaysian courts to deny the importation of developments in the common law.  For example, in Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors , [ [35] ] the Malaysian Federal Court chose to follow old common law authorities which limited the claim for pure economic loss in cases of negligence, in particular severely limiting such claims against a local authority.  In this famous “Highland Towers” case, which saw hundreds of lives lost due to the collapse of a condominium block, the Federal Court came to the defence of local councils:

 

With limited resources and manpower, local councils would have to have their priorities.  In my view, the provision of basic necessities for the general public has priority over compensation for pure economic loss of some individuals who are clearly better off than the majority of the residents in the local council area. [ [36] ]

 

The reference in the Civil Law Act to “common law” would imply that it is limited to “judge-made” law, and not to statutory law.  What happens if the “common law” has been modified by statute?  In Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd , [ [37] ] the Federal Court noted that – “equitable set-off is included in the expression ‘rules of equity’ which the court is required to apply under the section.  But the legal set-off which is based on statute is in no way included in the expression ‘the common law of England’ which we are required to apply.”

 

Again, this has posed problems for Malaysian courts, particularly where there was an obvious lacuna, that is, where no provision existed at all in Malaysia on the particular issue.  For example, in Chan Ah Moi v Phang Wai Ann , [ [38] ] the court had relied on the British Domestic Violence and Matrimonial Proceedings Act 1976 and the cases decided thereon in England to support granting the wife relief from being molested, harassed, threatened, abused and assaulted by the husband.  Subsequently, in the case of Jayakumari v Suriya Narayanan , [ [39] ] it was pointed out that Chan Ah Moi might have been mistakenly decided.

 

Even where provision has been made by way of legislation, problems still arise with respect to the application of the common law and rules of equity.  The question is – can it be said that such legislation is so “complete and comprehensive” that it would oust the application of the common law and rules of equity?  Many cases on land law in Malaysia still apply the rules of equity as it has been argued that the National Land Code is not “complete and comprehensive” and that there is still room for the importation of English rules of equity in certain circumstances.

 

5. The Position of Islamic Law

The Federal Constitution declares that the Constitution is the supreme law of the Federation [ [40] ] while Islam is the “religion of the Federation.” [ [41] ]   The secular basis of the Malaysian legal system was explained by the Supreme Court in the case of Che Omar bin Che Soh v Public Prosecutor , [ [42] ]  whereby, due to British colonisation, “the religion of Islam became separated into two separate aspects, the public aspect and the private aspect.”  The role of the religion of Islam in the public aspect was diminished, and it became “nothing more than a mere appendix to the ruler’s sovereignty.”  Thus, the role of Islam was limited only to the private aspect, that is, as the personal law of Muslims, which centers upon issues such as marriage, divorce, inheritance, maintenance, and the like.

 

Under the Federal Constitution, Islamic law is a matter falling within the State List, that is, it is a matter over which the State Legislature has jurisdiction and not Parliament [ [43] ] .  The Ninth Schedule of the Constitution identifies in some detail the specific subjects of Islamic law and personal and family law of persons professing the religion of Islam over which the State Legislature has jurisdiction.  This also includes Islamic criminal law [ [44] ] and the constitution, organization and procedure of Syariah courts [ [45] ] .  The position of Syariah courts is respected by the Constitution and its jurisdiction to decide matters within its “ exclusive jurisdiction” [ [46] ] protected under Article 121 (1A) which provides that the civil courts shall not have jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.

 

6. Conclusion

The common law will continue to play a significant role in the modern Malaysian State although many new pieces of legislation have been enacted and many more are in the pipeline.  Many of these new written laws are based upon or adapted from similar legislation in other Commonwealth countries.  The role of judges in interpreting and giving the desired meaning to the written word is still important.

 

Parallel to the continued development of the common law would be the development of Islamic law.  As Malaysia develops its competitive potential in Islamic finance and the Islamic capital market, Islamic insurance and other areas of Islamic commercial undertakings, this will result in the mainstreaming of Islamic law principles, especially principles of Islamic commercial law.  However, this does not displace the common law, which forms the basis of “mercantile law” generally under the Malaysian legal system.



[ [1] ] Ahmad Ibrahim & Ahilemah Joned, The Malaysian Legal System (1995) Dewan Bahasa dan Pustaka, p 10.

[ [3] ] Hall, DGE, A History of South-East Asia,4th. Edn., MacMillan Asian Histories Series, chapter 1; Andaya & Andaya, A History of Malaysia, (1982) MacMillan Asian Histories Series, p.17.

[ [4] ] Abdul Rahman b Haji Mohammad, Dasar-Dasar Adat Perpateh (1964) Pustaka Aman K Lumpur.

[ [5] ] Temah v Haji Zakaria (1929) 7/1 JMBRAS 125; Re Haji Munap deceased (1929) 7/1 JMBRAS 127; Saepah v Abdul Wahab [1956] 3 MC 60; Jasin v Tiawan [1941] MLJ 247; Robert @ Kamarulzaman v Ummi Kalthom [1966] 1 MLJ 163 (HC): “Harta sepencarian is a matter of Malay adat and is applicable only to the case of a divorced spouse who claims against the other spouse during his or her lifetime.  This rule of law is local law which the court must take judicial notice of and it is the duty of the court to propound it.”

[ [6] ] The effect of this Enactment on custom is explained in the case of Re Haji Mansur bin Duseh, deceased [1940] MLJ 110 (HC): “The effect of the Customary Tenure Enactment … is to replace in whole or in part the unwritten law of custom by the written law of the Enactment. As regards land, in respect of which mukim registers have not been endorsed, it is open to the collector to hold an inquiry under section 4 of the Enactment and to decide whether or not land is occupied subject to the custom.”  If land is customary land, it cannot be transferred, charged, transmitted or otherwise dealt with except in accordance with the custom.

[ [7] ] The case of Dato Kamat v Sapian [1938] MLJ 111, decided that where customary land was held under the Malacca Land Customary Rights Ordinance, no lien or equitable charge could be created by deposit of the extract from the mukim register.  The customary landholder could only charge his interest in the  and in the manner provided by sections 21 to 29 of the Ordinance.

[ [8] ]   Some examples of case law include Injing v Tuah & Anor [1971] 1 MLJ 115; Abang v Saripah [1970] 1 MLJ 164; Nyalang v Superintendent of Lands & Surveys, 2nd Division Simanggang [1967] 23 MLJ 250; Galau & Ors v Penghulu Imang & Ors [1967] 1 MLJ 192.  These cases relate to temuda rights, which are rights created by felling old jungle and cultivating the land.

[ [9] ] Ahmad Ibrahim & Ahilemah Joned, op cit, p 14.

[ [11] ] Ahmad Ibrahim & Ahilemah Joned, op cit, p 15.

[ [13] ] Ahmad Ibrahim & Ahilemah Joned, p 17.

[ [14] ] “Penang being, at the time when it became a British possession, without inhabitants to claim the right of being governed by any existing laws, and without tribunals to enforce any, it would be difficult to assert that the law of Quedah continued to be the territorial law after its cession … When an inhabited or conquered country is ceded, the new sovereign impliedly undertakes to administer the existing laws among its new subjects, until he changes them, but it does not follow that when the country is a desert, he is to be presumed to undertake that he will enforce the laws of the former sovereign when settlers shall afterwards arrive.” – per Recorder Maxwell in Reg v Willans, at p 20.

[ [15] ] Mercy Selvaratnam & Hulwana Mohd. Labib, “Basic Information for Legal Research in Malaysia”, in Doing Legal Research in Asian Countries, Institute of Developing Economies (IDE) Asian Law Series No 23, IDE Japan, March 2003.

[ [17] ] The Treaty of Pangkor, 1873.

[ [18] ] Mercy Selvaratnam & Hulwana Mohd Labib, op cit.

By Priyan Garg

Amity University, Uttar Pradesh

Editor’s note:The judiciary adjudicates the rights and obligations of the citizens, as per legislation, customs as well as a sense of justice. Judges often also take guidance from previous decisions and rely on past interpretations of questions of law. Such instances or cases which may be taken as an example of rule for subsequent cases are known as precedents. The importance of precedents is recognized in almost all legal systems across the world, since the ancient eras. While the degree of persuasiveness may vary as per the court delivering the judgment, the doctrine of stare decisis binds courts to stand by their decisions and not disturb the undisturbed.

Introduction

Every developed legal system possesses a judicial organ. The main function of the judicial organ is to adjudicate the rights and obligations of the citizens. In the beginning, in this adjudication the courts are guided by customs and their own sense of justice. As society progresses, legislation becomes the main source of law and the judges decide cases according to it. Even at this stage the judges perform some creative function. In the cases of first impression, in the matters of interpretation, or in filling up any lacuna in the law made by legislation the judges, to some extent, depend on their sense of right and wrong and in doing so, they adapt the law to the changed conditions.

Inductive and Deductive methods

In the inductive method, there is a great reliance placed upon the decisions of the judges. Before deciding a case, the judges look into previously decided cases of the similar nature by their own court or by superior court. From particular cases they deduce general rules, and apply them on the cases before them and decide accordingly. This is known as Inductive method.

In the deductive method, there is a great reliance placed legislatures and enacted statues. In such a system, the cases are decided on the basis the enacted legislature and statue that are codified and the judges decide cases on the basis of these codes and not on the basis of previously decided cases. This method is called the Deductive method.

Authority of previously decided cases

In almost all legal systems, the judges take guidance from the previous decisions on the point, and rely upon them. But the authority of such decisions is not the same in all the legal systems. In most of the countries including India, acquire their knowledge of the law through decisions of higher tribunals than from anything else. Such decisions are compiled and published in reports. These reports are considered to be very valuable from the legal literature perspective. These decisions are very efficient in deciding cases of subsequent cases of similar nature. They are called judicial precedents or precedents.

Definition of precedent

In general English, the term precedent means,

‘A previous instance or case which is, or may be taken as an example of rule for subsequent cases, or by which some similar act or circumstances may be supported or justified.’

According to Gray,

A precedent covers everything said or done, which furnishes a rule for subsequent practice.’[1]

According to Keeton,

A judicial precedent is judicial to which authority has in some measure been attached.’[2]

According to Salmond,

In loose sense it includes merely reported case law which may be cited & followed by courts.

In strict sense, that case law which not only has a great binding authority but must also be followed.

According to Bentham precedents are ‘Judge made Law.’

According to Austin precedents are ‘Judiciary’s Law.’

In general in the judicial field, it means the guidance or authority of past decisions for future cases. Only such decisions as lay down some new rule or principle are called judicial precedents. The application of such judicial decisions is governed by different principles in different legal systems. These principles are called ‘Doctrine of Precedent’. For this case to be held, first such precedents must be reported, maybe cited and may probably be followed by courts. Secondly, the precedent under certain circumstances must be followed.

Thus it can be inferred that precedents are:

  • Guidance or authority of past decisions for future cases.
  • Precedents must be reported, maybe cited and may probably be followed by courts.
  • Precedents must have opinio-juris.
  • These must be followed widely for a long time and must not violate any existing statue law.

Nature of precedents

They must be ppurely constitutive and not abrogative at all. This means that a judicial decision can make a law but cannot alter it.

Where there is a settled rule of law, It is the duty of the judges to follow the same.

They cannot substitute their opinions for the established rule of law.

The function is limited to supplying the vacancies of the legal systems, filling up with new law the gaps that exist.

Importance of precedents

In the Ancient Legal System:

The importance of the decisions as a source of law was recognised even in very early times. In the past, there have been numerous instances of this. Sir Edward Coke, in the preface of the sixth part of his report, has been written that Moses was the first law reporter. ‘In the case of the daughters of Zelophehad, narrated at the beginning of the twenty- seventh chapter of the book of numbers, the facts are stated with the great clearness and expressly as a precedent which ought to be followed.’  Even in the Mahabharata, it has been stated that, ‘The path is the right one which has been followed by virtuous men.’ This may be interpreted as giving a theory of precedent. In ancient legal systems of Babylonia and China, the judicial decisions were considered to be a great authority, and later on, they were embodied in code law.

In the Modern Legal System:

Among the modern legal systems, the Anglo – American law is judge made law. It is called ‘Common Law’. It developed mainly through judicial decisions. Most of the branches of law, such as torts, have been created exclusively by judges. The Constitutional Law of England, especially the freedom of the citizens, developed through judicial decisions.

According to Tennyson,

Where freedom slowly broadness down, from precedent to precedent.

Not only in the municipal law but in international law also, the precedents have their importance. The decisions of the International Court of Justice are an importance source of International law. These precedents have been recognised by the International Court of Justice by Article 38(2)(d) of the Statue of the International Court of Justice. Further, Article 59 of the same holds that the decisions of the court only have persuasive value for future cases and hence the International Court of Justice is not bound by its own decisions in deciding similar cases in future. It holds that the decision is only binding the parties to the case.

The above brief discussion indicates the role and importance of decisions on precedents in the development of law and their importance as a source of law at the municipal as well as the international level.

Types of precedents

Persuasive precedents

Persuasive precedent (also persuasive authority) is precedent or other legal writing that is related to the case at hand but is not a binding precedent on the court under common law legal systems such as English law. However, persuasive authority may guide the judge in making the decision in the instant case. Persuasive precedent may come from a number of sources such as lower courts, “horizontal” courts, foreign courts, statements made in dicta, treatises or law reviews. In Civil law and pluralist systems, as under Scots law, precedent is not binding but case law is taken into account by the courts.

Lower Courts

A lower court’s opinion may be considered as persuasive authority if the judge believes they have applied the correct legal principle and reasoning.

Higher Courts in other Circuits

A court may consider the ruling of a higher court that is not binding. For example, a district court in the United States First Circuit could consider a ruling made by the United States Court of Appeals for the Ninth Circuit as persuasive authority.

Horizontal Courts

Courts may consider rulings made in other courts that are of equivalent authority in the legal system. For example, an appellate court for one district could consider a ruling issued by an appeals court in another district.

Statements made in obiter dicta

Courts may consider obiter dicta in opinions of higher courts. Dicta of a higher court, though not binding, will often be persuasive to lower courts.

The obiter dicta is usually, as its translation “other things said”, but due to the high number of judges and several personal decisions, it is often hard to distinguish from the ratio decidendi (reason for the decision).

For this reason, the obiter dicta may usually be taken into consideration.

A Dissenting judgement

A judgment heard by a tribunal, and one judge dissented from the decision. The judge in the next case can decide to follow the dissenting judge’s obiter and rationale. The judge can only opt to overturn the holding of a court lower or equivalent in the hierarchy, however. A district court, for example, could not rely on a Supreme Court dissent as a rationale for ruling on the case at hand.

Treatises, Restatements, Law Review Articles

Courts may consider the writings of eminent legal scholars in treatises, restatements of the law, and law reviews. The extent to which judges find these types of writings will vary widely with elements such as the reputation of the author and the relevance of the argument

Courts in other countries

An English court might cite judgments from countries that share the English common law tradition. These include other commonwealth states (for example Canada, Australia, or New Zealand) and, to some extent, the United States.

It is controversial whether it is appropriate for a U.S. court to consider foreign law or precedents. The Supreme Court splits on this issue. In Atkins v. Virginia, for example, the majority cited the fact that the European Union forbid death penalty as part of their reasoning, while Chief Justice Rehnquist denounced the “Court’s decision to place weight on foreign laws.” The House of Representatives passed a nonbinding resolution criticizing the citing of foreign law and “reaffirming American independence.”

Binding precedents

In law, a binding precedent (also mandatory precedent or binding authority) is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the House of Lords in 2009. In Civil law and pluralist systems, as under Scots law, precedent is not binding but case law is taken into account by the courts.

Binding precedent relies on the legal principle of stare decisis. A stare decisis means to stand by things decided. It ensures certainty and consistency in the application of law. Existing binding precedents from past cases are applied in principle to new situations by analogy.

There are three elements needed for a precedent to work. Firstly, the hierarchy of the courts needs to be accepted, and an efficient system of law reporting. ‘A balance must be struck between the need on one side for the legal certainty resulting from the binding effect of previous decisions, and on the other side the avoidance of undue restriction on the proper development of the law

Binding Precedent in England

Judges are bound by the law of binding precedents in England and Wales and other common law jurisdictions. This is a distinctive feature of the English legal system. In Scotland and many countries throughout the world, particularly in mainland Europe, civil law means that judges take case law into account in a similar way, but are not obliged to do so and are required to consider the precedent in terms of principle. Their fellow judges’ decisions may be persuasive but are not binding. Under the English legal system, judges are not necessarily entitled to make their own decisions about the development or interpretations of the law. They may be bound by a decision reached in a previous case. Two facts are crucial to determining whether a precedent is binding:

The position in the court hierarchy of the court which decided the precedent, relative to the position in the court trying the current case.

Whether the facts of the current case come within in the scope the principle of law in previous decisions.

Stare Decisis

Stare decisis (Latin: [ˈstaːre deːˈt͡s1iːsiːs], Anglicisation: [ˈsteɹɪ dɪˈsaɪsɪs]) is the legal principle by which judges are obliged to respect the precedents established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed.” In a legal context, this is understood to mean that courts should generally abide by precedents and not disturb settled matters.

This doctrine is basically a requirement that a Court must follow the rules established by a Court above it.

The doctrine that holdings have binding precedence value is not valid within most civil law jurisdictions as it is generally understood that this principle interferes with the right of judges to interpret law and the right of the legislature to make law. Most such systems, however, recognize the concept of jurisprudence constante, which argues that even though judges are independent, they should judge in a predictable and non-chaotic manner. Therefore, judges’ right to interpret law does not preclude the adoption of a small number of selected binding case laws.

Authority of Precedents

The authority of a decision as a precedent lies in its Ratio Decidendi.

Ratio Decidendi and Obiter Dictum

There are cases which involve questions which admit of being answered on principles. Such principles are deduced by way of abstraction of the material facts of the case eliminating the immaterial elements. The principle that comes out as a result of such case is not applicable only to that case, but to cases also which are similar to the decided case in their essential features. This principle is called Ratio Decidendi. The issues which need determination of no general principles are answered on the circumstances of the particular case and lay down no principles of general application. These are called Obiter Dictum. It is the Ratio Decidendi of a case that is binding and not the Obiter Dictum that has a binding effect of a Precedent. But it is for the judge to determine the Ratio Decidendi of the decision and to apply it on the case which he is going to decide. This gives an opportunity to him to mould the law according to the changed conditions by laying emphasis on one or the other point.

Merits of the Doctrine of Precedents

It shows respect to one ancestors’ opinion. Eminent jurists like Coke and Blackstone have supported the doctrine on this ground. The say that there are always some reasons behind these opinions, we may or may not understand them.

Precedents are based on customs, and therefore, they should be followed. Courts follow them because these judicial decisions are the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law.

As a matter of great convenience it is necessary that a question once decided should be settled and should not be subject to re-argument in every case in which it arises.  It will save labour of the judges and the lawyers.

Precedents bring certainty in law. If the courts do not follow precedents and the judges start deciding and determining issues every time afresh without having regard to the previous decisions on the point, the law would become the most uncertain.

Precedents bring flexibility to law. Judges in giving their decisions are influenced by social, economic and many other values of their age. They mould and shape the law according to the changed conditions and thus bring flexibility to law.

Precedents are Judge made law. Therefore, they are more practical. They are based on cases. It is not like statue law which is based on a priori theory. The law develops through precedents according to actual cases.

Precedents bring scientific development to law. In a case Baron Parke observed ‘It appears to me to be great importance to keep the principle of decision steadily in view, not merely for the determination of the particular case, but for the interest of law as a science.’

Precedents guide judges and consequently, they are prevented from committing errors which they would have committed in the absence of precedents. Following precedents judges are prevented from any prejudice and partially because precedents are binding on them. By deciding cases on established principles, the confidence of the people on the judiciary is strengthened.

As a matter of policy, decisions, once made on principal should not be departed from in ordinary course.

Demerits of the Doctrine of Precedents

There is always a possibility of overlooking authorities. The vastly increasing number of the cases has an overwhelming effect on the judge and the lawyer. It is very difficult to trace out all the relevant authorities on the very point.

Sometimes, the conflicting decisions of superior tribunal throw the judge of a lower court on the horns of a dilemma. The courts faced with what an English judge called “complete fog of authorities.”

A great demerit of the doctrine of precedent is that the development of the law depends on the incidents of litigation. Sometimes, most important points may remain unjudicated because nobody brought action upon them.

A very grave demerit or rather an anomaly of the doctrine of precedent is that, sometimes it is extremely erroneous decision is established as law due to not being brought before a superior court.

Factors undermining the authority of a precedent

  1. Abrogated decisions – A decision ceases to be binding if a statute or statutory rule inconsistent with it is subsequently enacted, or if it is reversed or overruled by a higher court.
  2. Same decision on appeal is reversed by the appellate court. – 24th amendment of Indian Constitution was passed to nullify the decision of the SC in the case of Golaknath.
  3. Affirmation and Reversal on a Different Ground – A decision is affirmed or reversed on appeal on a different point.
  4. Ignorance of Statute – A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute i.e. delegated legislation. A court may know of existence of the statute or rule and yet not appreciate in the matter in hand. Such a mistake also vitiates the decision. Even a lower court can refuse to follow a precedent on this ground.
  5. Inconsistency with Earlier Decision of Higher Court – A precedent is not binding if the court that decided it overlooked an inconsistent decision of a high court. High courts cannot ignore decision of Supreme Court of India.
  6. Inconsistency with Earlier Decision of Same Rank – A court is not bound by its own previous decisions that are in conflict with one another. The court of appeal and other courts are free to choose between conflicting decisions, even though this might amount to preferring an earlier decision to a later decision.
  7. Precedent sub silentio or not fully argued – When a point is not involved in a decision is not taken notice of and is not argued by a counsel, the court may decide in favour of one party, whereas if all the points had been put forth, the decision in favour of one party. Hence, such a rule is not an authority on the point which had not been argued and this point is said to pass sub silentio.  Binding force of a precedent does not depend on whether a particular argument was considered therein or not, provided the point with reference to which an argument was subsequently advanced was actually decided by the SC.

Circumstances which increase the authority of a precedent

  1. The number of judges constituting the bench and their eminence is a very important factor in increasing the authority of precedent.
  2. A unanimous decision carries more weight.
  3. Affirmation, approval or following by other courts, especially by a higher tribunal, adds to the strength of a precedent.
  4. If an Act is passed embodying the law in a precedent, the gains an added authority.

Theories of precedents

Declaratory theory

This theory provides that,

Judges only discover law.

They discover and declare.

Coke C.J.: judicial decisions are not a source of law but the best proof of law is.

Wiilis v. Baddeley: there is no such thing as judge-made law.

Rajeshwar Prasad v. State of West Bengal,  AIR 1965 SC 1887, the same theory was upheld by the Supreme Court of India.

This theory was criticised on a number of grounds

Bentham and Austin : legislative power is not with Courts and they can not even claim it.

Salmond : both at law and in equity, however the declaratory theory must be totally rejected .

Precedents make law as well as declare it.

Judges have altered the law.

Judges make Law

Lord Bacon: the points which the judges decide in cases of first impression is a “distinct contribution to the existing law”.

Prof. Gray: Judges alone are the makers of Law.

Pollock: Courts themselves, in the course of the reasons given for those decisions constantly and freely use language admitting that they do.

This theory was criticised on a number of grounds

Judges cannot overrule a statute.

Where a statute clearly laid down the law, the judge has to enforce it.

The judge is confined to the facts of the case while enunciating legal principles.  Within those limits alone it can be said that judges make law.

After this brief discussion about the nature, definitions and authority of precedents let us move on to look at the value of precedents in different countries in the world.

Comparison between different legal systems

U.S. legal system

In the United States, which uses a common law system in its state courts and to a lesser extent in its federal courts, the Ninth Circuit Court of Appeals has stated:

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — “to stand by and adhere to decisions and not disturb what is settled.” Consider the word “decisis.” The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not “to stand by or keep to what was said.” Nor is the doctrine stare rationibus decidendi — “to keep to the rationes decidendi of past cases.” Rather, under the doctrine of stare decisis a case is important only for what it decides — for the “what,” not for the “why,” and not for the “how.” Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.

In other words, stare decisis applies to the holding of a case, rather than to obiter dicta (“things said by the way”). As the United States Supreme Court has put it: “dicta may be followed if sufficiently persuasive but are not binding.”

In the United States Supreme Court, the principle of stare decisis is most flexible in constitutional cases:

Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. … But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. … This is strikingly true of cases under the due process clause.[3]

For example, in the years 1946–1992, the U.S. Supreme Court reversed itself in about 130 cases. The U.S. Supreme Court has further explained as follows:

When convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to re-examine the basis of its constitutional decisions.[4]

English legal system

The doctrine of binding precedent or stare decisis is basic to the English legal system, and to the legal systems that derived from it such as those of Australia, Canada, Hong Kong, New Zealand, Pakistan, Singapore, Malaysia and South Africa. A precedent is a statement made of the law by a Judge in deciding a case. The doctrine states that within the hierarchy of the English courts a decision by a superior court will be binding on inferior courts. This means that when judges try cases they must check to see if similar cases have been tried by a court previously. If there was a precedent set by an equal or superior court, then a judge should obey that precedent. If there is a precedent set by an inferior court, a judge does not have to follow it, but may consider it. The House of Lords (now the Supreme Court) however does not have to obey its own precedents.

Only the statements of law are binding. This is known as the reason for the decision or ratio decidendi. All other reasons are “by the way” or obiter dictum. See Rondel v. Worsley[5]. A precedent does not bind a court if it finds there was a lack of care in the original “Per Incuriam”. For example, if a statutory provision or precedent had not been brought to the previous court’s attention before its decision, the precedent would not be binding. Also, if a court finds a material difference between cases then it can choose not to be bound by the precedent. Persuasive precedents are those that have been set by courts lower in the hierarchy. They may be persuasive, but are not binding. Most importantly, precedents can be overruled by a subsequent decision by a superior court or by an Act of Parliament.

Civil Law System

Stare decisisis not usually a doctrine used in civil law court system, because it violates the principle that only the legislature may make law. In theory therefore, lower courts are generally not bound to precedents established by higher courts. In practice, the need to have predictability means that lower courts generally defer to precedents by higher courts and in a sense, the highest courts in civil law jurisdictions, such as the Cour de cassation and the Conseil d’État in France are recognized as being bodies of a quasi-legislative nature.

The doctrine of stare decisis also influences how court decisions are structured. In general, court decisions in common law jurisdictions are extremely wordy and go into great detail as to the how the decision was reached. This occurs to justify a court decision on the basis of previous case law as well as to make it easier to use the decision as a precedent in future cases.

By contrast, court decisions in some civil law jurisdictions (most prominently France) tend to be extremely brief, mentioning only the relevant legislation and not going into great detail about how a decision was reached. This is the result of the theoretical view that the court is only interpreting the view of the legislature and that detailed exposition is unnecessary. Because of this, much more of the exposition of the law is done by academic jurists which provide the explanations that in common law nations would be provided by the judges themselves.

In other civil law jurisdictions, such as the German-speaking countries, court opinions tend to be much longer than in France, and courts will frequently cite previous cases and academic writing. However, e.g. German courts put less emphasis of the particular facts of the case than common law courts, but on the discussion of various doctrinal arguments and on finding what the correct interpretation of the law is.

Indian Legal System

Indian Law is largely based on English common law because of the long period of British colonial influence during the period of the British Raj.

After the failed rebellion against the British in 1857, the British Parliament took over the reign of India from the British East India Company, and British India came under the direct rule of the Crown. The British Parliament passed the Government of India Act of 1858 to this effect, which set up the structure of British government in India. It established in England the office of the Secretary of State for India through whom the Parliament would exercise its rule, along with a Council of India to aid him. It also established the office of the Governor-General of India along with an Executive Council in India, which consisted of high officials of the British Government.

Much of contemporary Indian law shows substantial European and American influence. Various legislations first introduced by the British are still in effect in their modified forms today. During the drafting of the Indian Constitution, laws from Ireland, the United States, Britain, and France were all synthesized to get a refined set of Indian laws, as it currently stands. Indian laws also adhere to the United Nations guidelines on human rights law and the environmental law. Certain international trade laws, such as those on intellectual property, are also enforced in India.

Indian family law is complex, with each religion adhering to its own specific laws. In most states, registering marriages and divorces is not compulsory. There are separate laws governing Hindus, Muslims, Christians, Sikhs and followers of other religions. The exception to this rule is in the state of Goa, where a Portuguese uniform civil code is in place, in which all religions have a common law regarding marriages, divorces and adoption.

Ancient India represented a distinct tradition of law, and had an historically independent school of legal theory and practice. The Arthashastra, dating from 400 BC and the Manusmriti, from 100 AD, were influential treatises in India, texts that were considered authoritative legal guidance. Manu’s central philosophy was tolerance and pluralism, and was cited across Southeast Asia. Early in this period, which finally culminated in the creation of the Gupta Empire, relations with ancient Greece and Rome were not infrequent. The appearance of similar fundamental institutions of international law in various parts of the world show that they are inherent in international society, irrespective of culture and tradition. Inter-State relations in the pre-Islamic period resulted in clear-cut rules of warfare of a high humanitarian standard, in rules of neutrality, of treaty law, of customary law embodied in religious charters, in exchange of embassies of a temporary or semi-permanent character. When India became part of the British Empire, there was a break in tradition, and Hindu and Islamic law were supplanted by the common law. As a result, the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era.

There are 1160 laws as on September 2007

In India, stare decisis is strictly followed and these are the general principles of stare decisis followed in India.

Each court is absolutely bound by the decisions of the higher courts above it.

Decision of one of the high courts is not binding on any other high court. They have only persuasive value.

In India, Supreme Court is not bound by its own decision.

A single bench is bound by the decision of a division bench of the same high court but a division bench is not to follow a decision of a single bench of the same high court.

Conclusion

From the brief discussion above about the legal value of precedents we can clearly infer that these play a very important role in filling up the lacunas in law and the various statues. These also help in the upholding of customs that influence the region thereby making decisions morally acceptable for the people. This thereby increases their faith in the judiciary which helps in legal development. These moreover being a sort of respect for the earlier views of various renowned jurists, helps in upholding the principle of stare decisis. It is a matter of great convenience it is necessary that a question once decided should be settled and should not be subject to re-argument in every case in which it arises.  It will save labour of the judges and the lawyers. This way it saves lots of time for the judiciary which is a real challenge in the present day legal system with so many cases still pending for many years now. Precedents bring certainty in law. If the courts do not follow precedents and the judges start deciding and determining issues every time afresh without having regard to the previous decisions on the point, the law would become the most uncertain. Precedents bring flexibility to law. Judges in giving their decisions are influenced by social, economic and many other values of their age. They mould and shape the law according to the changed conditions and thus bring flexibility to law.

Edited by Neerja Gurnani

[1] The Nature and Sources of Law

[2] The Elementary Principles of Jurisprudence

[3] Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–407, 410 (1932)

[4] Smith v. Allwright, 321 U.S. 649, 665 (1944)

[5] [1969] 1 AC 191

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