An analysis of Dato’ Sri Ram’s flouting of the doctrine of stare decisis.

The Saturday edition of New Straits Times headlines blared ‘Land Deal: Court of Appeal declared Federal Court Ruling Wrong’. The Court of Appeal judge who lead the revolt against the Federal Court was none other than Dato Sri’ Ramachandra a/l Ramasamy Gopal Iyer (Dato’ Sri Ram’), the most senior of the Court of Appeal judges. The cause for commotion was his Lordship’s declaration that all inferior courts were at liberty to ignore a higher court if the judges in the lower court were satisfied that the binding decision on them was clearly wrong. ‘No court in this country need to follow it if it can be demonstrated that it was wrongly decided,’ opined Dato’ Sri Ram in essentially giving the Federal Court decision of Adorna Properties Sdn Bhd v Boonsom Boonyanit [2001] 2 CLJ 133 the finger.

I do not intend to go into an analysis of the Adorna Properties case save to say that I, like many others, agree with Dato’ Sri Ram that that case was wrongly and poorly decided. What does merit comment is Dato’ Sri Ram’s position where precedent is concerned. Now most countries that have a common law system would posses as one of its fundamental principles: stare decisis. This principle simply states that an inferior court must follow a higher court decision whether or not it is correct. His Lordship is fully aware of this principle and the reasons for it. After all, he did write the main judgment in the Federal Court decision of Koperasi Rakyat Berhad v Harta Empat Sdn Bhd [2000] 3 CLJ 719 which dealt with just this point. The facts of that case are quite irrelevant for our present purposes and therefore require no elucidation. What is important was what Dato’ Sri Ram said and decided in that case when he sat in. Let me now quote a portion of his own judgment in this case which is very relevant to the matter at hand:

Our task in answering this question has been made considerably easier by the assistance derived from the remarks of Lord Hailsham in Cassell & Co Ltd v. Broome & Anor [1972] AC 1027, which indicated the reaction of the House of Lords to the Court of Appeal’s refusal to follow a previous decision of the House on the ground that it had been given per incuriam. Touching on the repercussions of the Court of Appeal advising judges of first instance to ignore decisions of the House of Lords, Lord Hailsham said this (at p. 1054B-D):

I am driven to the conclusion that when the Court of Appeal described the decision in Rookes v. Barnard as decided ‘per incuriam’ or ‘unworkable’, they really only meant that they did not agree with it. But, in my view, even if this were not so, it is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way and, if it were open to the Court of Appeal to do so, it would be highly undesirable. The course taken would have put judges of first instance in an embarrassing position, as driving them to take sides in an unedifying dispute between the Court of Appeal or three members of it (for there is no guarantee that other Lord Justices would have followed them and no particular reason why they should) and the House of Lords. But, much worse than this, litigants would not have known where they stood. None could have reached finality short of the House of Lords and in the meantime, the task of their professional advisers of advising them either as to their rights, or as to the probable cost of obtaining or defending them, would have been, quite literally, impossible.

Whatever the merits, chaos would have reigned until the dispute was settled, and, in legal matters, some degree of certainty is at least as valuable a part of justice as perfection.

And in a famous passage (at p. 1054D-E), Lord Hailsham concluded this part of the case by saying:

The fact is, and I hope that it will never be necessary to say so again, that in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers. Where decisions manifestly conflict, the decision in Young v. Bristol Aeroplane Co Ltd [1944] 1 KB 718 offers guidance to each tier in matters affecting its own decisions.

It does not entitle it to question considered decisions in the upper tiers with the same freedom.

In our view, every word of what Lord Hailsham said regarding the status of judgments and relevance of precedent in the House of Lords, the circumstances, the duty of the Court of Appeal to accept loyally the decisions of the House of Lords and the chaotic consequences which would follow should the Court of Appeal fail in this duty apply with full force, mutatis mutandis, to this country and we adopt what his Lordship said.

Clearly, the Court of Appeal in Harta Empat flew in the face of the principles enunciated by Lord Hailsham and we can only express the hope that it will not be necessary for the Federal Court hereafter to have to remind the Court of Appeal of those principles.

There is also another decision as well given by his Lordship in the same vein at the Court of Appeal level in Periasamy s/o Sinnapan & Anor v Public Prosecutor [1996] 3 CLJ 187 where his Lordship decided as follows:

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.

Those were his very own words. And if you had the privilege of meeting or appearing before Dato’ Sri Ram it will be immediately apparent that he is terrifyingly intelligent and has a prodigious memory. He remembers entire case names including the citation, the judge who decided it, when it was decided, the people arguing it, the arguments raised, which was upheld, which was put down, the effect of that case in the jurisprudence of that area of law and naturally the facts of that case, and all whatsoever in between. I have enough trouble remembering the name of both opposing parties, contenting myself to remember only one of them and mumbling the date quickly after in the hope that they will overlook the fact that I don’t know the other party and the rest of the citation. Therefore, I am certain that he would not have forgotten that case. Nor would he be unaware of Datuk Md. Raus Sharif’s position that took the less controversial route of appearing to reverse the trial judge on inferences drawn from fact (I am assuming this as I am just going by the news report).

His Lordship was reported to have said that he decided in that manner because:

  • The Adorna Properties decision had overlooked 2 authorities which held that the code provided for ‘deferred indefeasibility’.
  • The aim of section 340 of the National Land Code was to protect registered proprietors of land and in any interpretation must bring about a fair result.
  • His Lordship was quoted as saying: ‘It is not exaggeration to say that Adorna has wreaked havoc in the law of real property. All you have to do is read the national newspapers.’
  • There were many innocent land owners who were deprived of their property because of forgery and the law as it stood favoured the forgers.

But these are not legally justifiable reasons to give short shrift of stare decisis. I am also not aware of any new House of Lords decision that has put the said doctrine to rest. So stare decisis is still applicable. Since Dato’ Sri Ram is a very intelligent man with a powerful memory, it is fair to assume that he is aware of all his previous decisions on the matter and know full well that he is in the wrong. To focus on that however would be to miss the point. And this would be clearer in a moment.

The decision is essentially telling the Federal Court that it has made an error so manifest and so glaring that they should not even be followed. If one took that a short step further with a flatter reading, that decision could be read as saying that the Federal Court is so incompetent and nobody should bother with their decision if they were satisfied that it was wrong. But then who is there to confirm one’s correctness upon departure from precedent?

There is a great sense of frustration emitted from his Lordship’s decision. But if one recalls some of the following, it is perhaps not surprising. His Lordship has lately been overturned on many significant decisions over the last few years (Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah & Anor and Anor appeal [1998] 3 CLJ 85, Kekatong Sdn Bhd v Danaharta Urus Berhad [2003] 3 CLJ 378, Dato’ Tan Heng Chew v Tan Kim Hor & Anor Appeal [2006] 1 CLJ 577), the widely reported one being the decision of Metromac Corporation Sdn Bhd v Fawziah Holdings Sdn Bhd [2006] 3 CLJ 177. Furthermore, despite being the only person appointed directly from the Bar to the Court of Appeal in 1994, his Lordship has remained there ever since, watching a great many people elevated over him; the most glaring being the elevation of Dato’ Augustine Paul a/l Sinnapen to the Federal Court who was as late as early 1998 was still a mere Sessions Court judge. Dato’ Sri Ram also used to sit relatively often in the Federal Court especially around 1996-1997 (compared to the other Court of Appeal judges) and write some of its most significant judgments such as the excellent Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283. He last did so last on 25 November 2005 in the decision of PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457.

Is his Lordship therefore justified in deciding cases in the face of clear precedent and encouraging inferior courts to disobey superior court decisions on a subjective basis (what is the standard to be achieved?)? According to the law, no. The principle as explained by Lord Hailsham is maintained because of the wider interest of justice that is sought to be achieved. Justice must not only be done in the micro (as between the litigants in a case) but also in the macro (as within the system, procedures, between cases – administrative justice). A balance therefore has to be struck between the two. Predictability and stability are very important features where justice is concerned with the law and loyalty to the doctrine of stare decisis was created to achieve this. His Lordship treads very dangerous ground in his latest decision. After all, what is good for the goose is also good for the gander. If one followed his Lordship’s decision, then we are not only at liberty to ignore the Federal Court if we think them wrong, but the Court of Appeal and the High Court as well. And that doesn’t just go for inferior courts but for citizens as well. If judges do not wish to be bound by higher authority, what then can we expect of ordinary citizens?

Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it...