PUTRAJAYA (Jan 15): Chief Justice Tun Tengku Maimun Tuan Mat has reminded judges and all officers of the court to not unnecessarily depart from judicial precedent, especially if it concerns "well-settled" principles of the country's law.
Speaking to the legal fraternity at the Opening of the Legal Year 2024 here, Tengku Maimun said the individual opinion of a judge is not relevant, due to the principle of stare decisis (to stand by things decided).
"The Federal Court, being the apex court, must continue to remember that it cannot depart too easily from precedent, especially if a previously decided authority is questioned not so long 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," she said, adding that lower courts need to also abide by precedents set by higher courts.
"Even if a judge or court believes a decision of the higher court to be wrong, he is under the obligation to abide by it," she said.
She added that if the circumstances warrant it, the parties involved can bring the case to a higher court and present arguments to depart from the established precedent.
Tengku Maimun said that some concepts — such as constitutional supremacy in Article 4(1) of the Federal Constitution — have been "well-settled" into the country's law.
"While judges are free to express their differing opinions on what those integral features are, based on the cases that come up before them, I think it is not open for judges to dispute the existence of the concept itself," she said.
The CJ added that this should also be observed by lawyers. She said from her own observation in court, a select minority uses elements of overruled cases in their arguments, without acknowledging the decision in its entirety, and this has to be called out and stopped.
"I have noticed a trend from a minority of both such advocates who cite cases without acknowledging that those cases or principles that they have cited have been expressly overruled. Other times, these advocates advance untenable propositions that stem from a selective, dishonest or warped reading 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 happen, it throws judges off as certain propositions appear more convincing than they should be because they are articulated selectively yet disingenuously," she said.
She reminded lawyers that such instances are not the standard of professionalism expected of them.
Tengku Maimun also said that due to the growing number of cases in the court system, ideally, hearing a case through a trial should be the last resort. Instead, parties should consider mediation as a channel to resolve their dispute.
"By virtue of the current volume of cases commenced in the courts, there is a critical need to now intensify the usage of court annexed mediation.
"In other words, at case management all judges must duly consider why each and every case should not be mediated. Unless absolutely unsuitable, I take the position that cases ought to undergo mediation," she said.
She added that judges must also sit as the mediator and not shy away from the process to resolve the dispute.