The doctrine of stare decisis, or judicial precedent, is a “fundamental rule of the common law”[1] which applies within Malaysian jurisprudence.[2]

With regard to the application of the doctrine, it is not disputed that courts are bound by the decisions of superior courts.[3]

A question arises whether, as a general rule, the Federal Court (which is Malaysia’s apex court) is bound by its previous decisions.

Pre-2021

Pre-2021, it appeared that the consensus to the question was in the affirmative and that it was trite law.

In Central Securities (Holdings) Bhd v Haron bin Mohamed Zaid [1980] 1 MLJ 304, the Federal Court held:

“… the Federal Court was bound to follow its previous decisions which have held that an order giving leave to sign final judgment is a final and not an interlocutory order”[4] (Emphasis mine)

Wan Suleiman SCJ in Lorrain Esme Osman v Attorney General of Malaysia [1986] 2 MLJ 288 held that the Supreme Court (now the Federal Court) is bound by its previous decisions when sitting in a constitutional role:

“the Supreme Court sitting in its constitutional role is bound by its previous decision”[5]

The Federal Court in Kerajaan Malaysia v Tay Chai Huat [2012] 3 CLJ 577 was of the view that the Federal Court must follow its proclamations of law made in earlier cases:

“[35] I would think that the attitude of this court towards its previous decisions such as Utra Badi and Vickneswary upon questions of law should, in my opinion be the same. It is of supreme importance that people may know with certainty what the law is, and this end can only be attained by a loyal adherence to the doctrine of stare decisis. Little respect will be paid to our judgments if we overthrow that one day which we have resolved the day before.

[50] … I would think that this court must follow its own proclamations of law made earlier on other cases and honour these rulings. After all, this court is the highest court in the country.”[6] (Emphasis mine)

In Asia Pacific Higher Learning Sdn Bhd (registered owner and licensee of the higher learning institution Lincoln University College) v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1, a January 2020 decision, Azahar Mohamed CJM (in delivering the supporting judgment) opined that:

“[17] Indeed, the doctrine of stare decisis dictates that as a matter of a general rule of great importance the Federal Court is bound by its own previous decisions. However, there are exceptional circumstances that allow them to depart from the earlier decision, but such power must be used sparingly.”[7] (Emphasis mine)

Two possible outliers to the apparent consensus on the Question are the decisions of the Federal Court in Dalip Bhagwan Singh v. Public Prosecutor [1997] 4 CLJ 645 (“Dalip Bhagwan”) and Gnanasekaran a/l Krishnasamy v Suruhanjaya Perkhidmatan Awam, Malaysia & Anor [2010] 6 MLJ 441 (“Gnanasekaran”).

In Dhalip Bahgwan, Peh Swee Chin FCJ appeared to be of the view that the doctrine of stare decisis did not apply to the Federal Court:

“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.”[8] (Emphasis mine)

Having said that, His Lordship went on in Dalip Bhagwan to point out that the Federal Court has the power to depart from its previous decisions and that the power should be exercised sparingly[9] thereby implying an affirmative answer to the Question.

In Gnanasekaran, Richard Malanjum CJ (Sabah and Sarawak) [later CJ] mentioned in passing that the Federal Court is not necessarily bound by its earlier decisions:

“After all this court is not necessarily bound by its own earlier decision and may depart from it where necessary (see Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1; [2010] 2 CLJ 269).”[10] [Emphasis mine]

Richard Malanjum CJ (Sabah and Sarawak)’s intentional use of the word “necessarily” and understood in the context of his point of the Federal Court being able to depart from its previous decisions where necessary, His Lordship appears to be of view is that the Federal Court is not bound without exceptions to its earlier decisions. As a general rule, it is likely that His Lordship would have agreed that the Federal Court is bound by its previous decisions.

2021

In 2021, in two of its decisions, the Federal Court answered the Question in the negative.

In Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] MLJU 12 (“Maria Chin”), a decision of the Federal Court delivered on 12th January 2021, the majority held that:

“[55] Having regard to the principles laid down in these cases, I am unable to accept the appellant’s argument that Sugumar Balakrishnan was decided per incuriam. First of all, being a decision of the apex court, it is not subject to the stare decisis rule. It was therefore wrong for counsel to say that it has no binding effect as a precedent on the ground that “it ignored a plethora of cases of high authority which established beyond peradventure that even widely worded ouster clauses cannot exclude judicial review”.”[11] (Emphasis mine)

Months later, the Federal Court in Goh Leong Yong v ASP Khairul Fairoz Rodzuan & Ors [2021] 8 CLJ 331 (“Goh Leong Yong”) decided as follows:

“[178] … In short, Dalip Bhagwan Singh was concerned with the doctrine of stare decisis which, as I mentioned, applies only to courts below the Federal Court. As for the Federal Court itself, it is only constrained by the per incuriam rule.” (Emphasis mine)

Post-2021

In a recent decision, post-Maria Chin and post-Goh Leong Yong, the Federal Court in Tenaga Nasional Berhad v Chew Thai Kay & Anor [2022] 2 CLJ 333 appears to have reverted to the pre-2021 position:

“We will say at once that overturning our own precedent is a serious matter. This court must always respect its own precedents. The rule of legal precedence must be followed in the interest of certainty. Great sanctity must be attached to the finality of our judgment. This is not to say that this court should never depart from an earlier decision. We do not blindly honour stare decisis. While it is true that we can overturn our own precedent in exceptional cases where it is really necessary, as an apex court, we need to be cautious about departing from our own earlier decision especially in a case that concerns the interpretation of a legislative provision, lest we lose the trust of public by persistent shifts of laws.”[12] (Emphasis ours)

It remains to be seen whether Maria Chin and Goh Leong Yong will be considered as blips in Malaysian jurisprudence on the doctrine of stare decisis or whether they will form the foundation which will develop the doctrine in the direction of other Commonwealth jurisdictions, some of which were pointed out by Hashim Yeop Sani CJ in Government Of Malaysia v. Lim Kit Siang & Another Case [1988] 1 CLJ Rep 63:

“On the question of binding precedents the House of Lords is no longer bound by its own previous decisions – see Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 issued by Lord Gardiner LC on behalf of himself and the Lords of Appeals in Ordinary on 26 July 1966. The Indian Supreme Court in The Bengal Immunity Company Limited v. The State of Bihar & Ors. [1955] 2 SCR 603 held that it would not be bound by its own previous decisions and that nothing in the Constitution prevented the Supreme Court from departing from its previous decisions. The United States Supreme Court too has a number of times reversed itself. The Privy Council has also held that it was not absolutely bound to follow its earlier decisions.”[13]


[1] Metramac Corporation Sdn Bhd v. Fawziah Holdings Sdn Bhd [2006] 3 CLJ 177 (FC), at para 21

[2] Dato’ Tan Heng Chew v. Tan Kim Hor & Another Appeal [2006] 1 CLJ 577 (FC), at para 2

[3] See e.g. Kerajaan Malaysia v Tay Chai Huat [2012] 3 CLJ 577 (FC), at para 50; Crystal Crown Hotel & Resort Sdn Bhd (Crystal Crown Hotel Petaling Jaya) v. Kesatuan Kebangsaan Pekerja-pekerja Hotel,

Bar & Restoran Semenanjung Malaysia [2021] 4 CLJ 775 (FC), at para 114, TR Sandah Tabau & Ors v. Director Of Forest, Sarawak & Anor And Other Applications [2019] 10 CLJ 436 (FC), at para 183

[4] Central Securities (Holdings) Bhd v Haron bin Mohamed Zaid [1980] 1 MLJ 304 (FC), at held (1)

[5] Lorrain Esme Osman v Attorney General of Malaysia [1986] 2 MLJ 288 (SC), at held (1)

[6] Kerajaan Malaysia v Tay Chai Huat [2012] 3 CLJ 577 (FC), at paras 35 & 50

[7] Asia Pacific Higher Learning Sdn Bhd (registered owner and licensee of the higher learning institution Lincoln University College) v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1 (FC), at para 17

[8] Dalip Bhagwan Singh v. Public Prosecutor [1997] 4 CLJ 645 (FC), at p. 660

[9] Dalip Bhagwan Singh v. Public Prosecutor [1997] 4 CLJ 645 (FC), at held 1c

[10] Gnanasekaran a/l Krishnasamy v Suruhanjaya Perkhidmatan Awam, Malaysia & Anor [2010] 6 MLJ 441 (FC), at para 26

[11] Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] MLJU 12 (FC), at para 55

[12] Tenaga Nasional Berhad v Chew Thai Kay & Anor [2022] 2 CLJ 333 (FC), at para 30

[13] Government Of Malaysia v. Lim Kit Siang & Another Case [1988] 1 CLJ Rep 63 (SC), at p. 85