CJ reminds lower courts to abide by precedents set by higher courts

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Chief Justice Tun Tengku Maimun Tuan Mat has reminded the lower courts to adhere to the precedents established by the higher courts.

She said the Federal Court, being the highest court, must also remember that it cannot depart too easily from precedent, especially if a previously decided authority is questioned shortly after it was decided.

“The Federal Court cannot afford to be inconsistent as that interferes with the public who organises their affairs upon legal clarity and certainty. In this regard, the individual opinion of a judge is not relevant due to the principle of stare decisis (to stand by things decided).


“Even if a judge or court deems a decision of the higher court to be incorrect, they are obligated to abide by it,” Justice Tengku Maimun said when delivering her speech at the Opening of the Legal Year 2024 at the Putrajaya International Convention Centre (PICC) Monday (Jan 15).

According to Justice Tengku Maimun, some concepts such as constitutional supremacy in Article 4(1) of the Federal Constitution have been firmly established in the country’s legal framework.

“While judges are free to express their differing opinions on the integral features based on the cases before them, it is inappropriate for them to dispute the existence of the concept itself. In this regard, stare decisis must not only be observed by judges but by all officers of the court, including advocates from the Bar and those in the public service,” she added.

Justice Tengku Maimun said, based on her courtroom observations, she has noticed a trend among a minority of advocates who cite cases without acknowledging that the cited cases or principles have been expressly overruled.

“At times, these advocates put forth untenable propositions that stem from a selective, dishonest or distorted interpretation of earlier cases. These violations happen in all sorts of cases, but they are particularly glaring when they happen in constitutional cases.

“In any event, when it does occur, it throws judges off as certain propositions seem more convincing than they should be due to their selective yet disingenuous articulation.


Chief Justice Tengku Maimun Tuan Mat at the Opening of the Legal Year 2024 in Putrajaya with Court of Appeal president Abang Iskandar Abang Hashim (second from left), Chief Judge Sabah and Sarawak Abdul Rahman Sebli (left) dan Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah (right).

“I think it goes without saying that advocates, especially the senior ones, know that this is not the candour and standard of professional courtesy expected of them and as such, this practice deserves to be called out and must be stopped,” she said.

She also said that the judiciary is at the receiving end of misplaced blame each time a court decision is not well received by the public.

She said the courts were often chastised for making “consequential orders” that resulted from the prosecution withdrawing their cases, adding that this causes the public’s confidence in the judiciary to erode.

The top judge was commenting on high profile cases which saw politicians accused of criminal offences being discharged.

“These decisions were not particularly well-received by the public, and a large part of the blame was put on the judiciary for making the only available orders upon the withdrawal of such charges,” she said.

She said the public fails to understand that the person responsible for the decision to withdraw cases is the public prosecutor and not the courts.

Under Article 145(3) of the Federal Constitution, the Attorney General, who is also the Public Prosecutor has the discretion to institute, conduct or discontinue any proceeding for an offence other than before a Syariah Court.

CJ Tengku Maimun said after a withdrawal was decided upon, the courts only have one of two very limited consequential options.

She said that there are two options depending on the facts; either granting an order of discharge not amounting to an acquittal (DNAA) or a discharge amounting to an acquittal, which can be called a DAA.

“The courts cannot turn around and insist to the public prosecutor that a charge remain. Each of them, the judiciary and the public prosecutor have their own constitutionally-demarcated constitutional functions,” she said.

She added that both must be adjudged fairly for the exercise of their powers to the exclusion of the other.

“And yet, when a charge is withdrawn, the judge making the only available consequential orders is painted as corrupt, sometimes as incompetent or sometimes both,” she said.

On Sept 3 last year, Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi was granted a DNAA by the Kuala Lumpur High Court on 12 counts of criminal breach of trust, eight counts of bribery and 27 counts of money laundering in relation to the misappropriation of millions in funds from Yayasan Akalbudi.

The decision received public backlash.

On Dec 2, last year, the Malaysian Bar filed an application for leave to commence a judicial review against the AGC’s decision to withdraw its case against Ahmad Zahid.