Court of Appeal binds itself

It is a long-held tradition in the Courts of law that lower courts should be bound by superior courts. This is the doctrine of stare decisis, or binding precedent, and ensures a relatively uniform approach to the law despite cases coming before different judges.

That a superior Court would bind a lower court goes almost without saying. But would a court bind itself? I.e. would a High Court bind another High Court, or would a Court of Appeal bind another Court of Appeal?

The traditional position is that a court is not bound by its previous decisions, although it would rarely stray from it. This gives litigants the certainty that the law would be largely uniformly applied, yet gives the court the flexibility to stray from its previous findings if necessary.

The Court of Appeal in its latest reported decision of Dato Seri Dr Kok Mew Soon v Mustapha Mohamed however, had taken the position that it binds itself. This means that a later Court of Appeal would be bound by an earlier Court of Appeal decision.

At the Court of Appeal level, this issue is still very much manageable, because there are only a few Court of Appeal judges and mostly located at Putrajaya. But would this decision also translate into the High Court binding itself? Logically, there is no reason why that should not be the case. The problem is this: there are many more High Court judges and High Court locations as compared to the Court of Appeal. There are points of law in which High Court judges would honestly and with all sincerity differ.

The difference in opinion is not an issue. It allows room for the development of legal principles in more well-thought out scenarios. But would a High Court judge now consider himself/herself bound by an earlier High Court judge, merely because the other chap decided the issue first? Is the only way open to a High Court judge to differ from another decision by way of declaring that other decision per incuriam (i.e. erroneous from the start)? Surely that is too drastic and would not be easily resorted to by any judge of sound standing.

The Court of Appeal has made its decision. It is arguably obiter (side comment) rather than ratio (binding principle), but as a trial judge once remarked to me when I tried to make that distinction: It is still an obiter of the Court of Appeal.

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Kheng Hoe tries to keep a lively countenance in the face of disputes. Try it sometimes- you may just live longer (khenghoe@mycounsel.com.my).