When ‘stare decisis’ glares at the lower court


EXTREMELY disappointing. Heartbreaking. Disheartening and dehumanising.

These are a few choice words to describe the Court of Appeal’s decision yesterday to overturn the High Court ruling enabling Malaysian mothers to confer nationality on their overseas-born children.

On September 9, 2021, the High Court had ruled that under the law, a child born overseas to Malaysian mothers is entitled to be a citizen of Malaysia and ordered authorities to issue the relevant documents to such children.

As expected, the High Court judge’s decision was roundly applauded. It was celebrated as “momentous and “landmark decision” among others. Even the women, family and community development minister welcomed the decision.

The government was thereafter urged not to appeal against the ruling. When the notice of appeal was indeed filed, many expressed deep disappointment.

Now, according to the Judge of the Court of Appeal (JCA) Azizah Nawawi, the High Court judge had committed a fundamental and appealable error when he ruled in favour of the six Malaysian mothers, as the latter had disregarded the Federal Court majority decision of May 2021. As a matter of fact, the learned judge did not even refer to the case in his judgment. The case in question is CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors (CTEB case).

JCA Kamaludin Md Said had also relied on the Federal Court’s majority decision in the CTEB case. JCA S. Nantha Balan dissented. https://www.themalaysianinsight.com/s/394849

Honestly, the majority decision is legally sound. It is dictated by the doctrine of stare decisis. The term is Latin for ‘to stand by things decided’. It is the name given to the legal doctrine expressed in Latin as “stare decisis et non quieta movere” which literally means to stand by the decision and not to disturb the settled matters”.

It means once a point or principle of law has been officially decided or settled by the ruling of a competent court in a case in which the court is directly involved, the point or principle will no longer be considered open to examination by the courts, which are bound to follow the decision.

The rule so established will be adopted in all subsequent cases to which it is applicable, without any reconsideration of its correctness in point of law.

Simply put, when a point of law has been settled by decision, it forms a precedent which is not afterwards to be departed from, whatever may be the views of the subsequent court. There would otherwise be no finality in the law.

In Dalip Bhagwan Singh v Public Prosecutor, Federal Court judge Peh Swee Chin said succinctly explained stare decisis in the following words:

“The doctrine of stare decisis or the rule of judicial precedent dictates that a court other than the highest court is obliged generally to follow the decisions of the courts at a higher or the same level in the court structure subject to certain exceptions affecting especially the Court of Appeal.”

The doctrine dictates that the courts in the lower tier of the judicial hierarchy accept loyally the decision of the courts in the higher tier.

When stare decisis stares at the lower court, it cannot blink.

The lower court is obliged to follow the decision of the higher court unless the latter’s decision is distinguished by the facts – that is, the relevant facts of the two cases are dissimilar. – August 6, 2022.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.



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