[News] When ‘stare decisis’ stares at the lower court — Hafiz Hassan

Saturday, 06 Aug 2022 10:01 AM MYT

AUGUST 6 — Extremely disappointing. Heart-breaking. Disheartening and dehumanising.

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

On September 9, 2021, the High Court had ruled that Malaysian mothers’ overseas-born children are entitled to be Malaysian citizens under the law, and ordered the Malaysian authorities to issue citizenship documents to these overseas-born children.

As expected, the High Court judge’s decision was applauded when the media reported it. It was celebrated and called “a landmark decision” and “momentous”, among others. Even the Women, Family and Community Development Minister welcomed the decision.

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

Now, according to 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 judge had disregarded the Federal Court majority decision in May 2021.

As a matter of fact, the learned judge did not even refer to the case in his judgment. The case 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.

Honestly, the majority decision is legally sound. It is dictated by the doctrine of stare decisis (pronounced stɑːreɪ dɪˈsiːsɪs). 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 when a point or principle of law has once been officially decided or settled by the ruling of a competent court in a case in which it was directly involved, it will no longer be considered as open to examination by courts which are bound to follow the decision of the former court.

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 it succinctly what stare decisis is in the following words:

On September 9, 2021, the High Court had ruled that Malaysian mothers’ overseas-born children are entitled to be Malaysian citizens under the law, and ordered the Malaysian authorities to issue citizenship documents to these overseas-born children.

“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.

It is obliged to follow the decision of the higher court unless the latter’s decision is distinguished on the facts — that is, the relevant facts of the two cases are not similar.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.

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