Malaysian Law is so complicated. I’m in the process of reading Wan Arfah’s introductory text on this subject and boy, is it convoluted.
For one, according to the book, we are not even clear on the issue of binding precedents in our Malaysian courts. The reason is because of various reorganisations of the court systems in Malaysia over the years.
As an example, the Court of Appeal was only created in 1994, and did not exist before that. While it sits below the Federal Court in the hierarchy, it is not clear on where it stands in history.
As I understand it, in the past, the highest position in our court hierarchy was held by the Privy Council in the UK. Under that was the Federal Court. We broke away form that system in 1985 and renamed the Federal Court to the Supreme Court, which was renamed to the Federal Court later.
However, we later inserted the Court of Appeal between the Federal Court and the High Courts. Now, this causes a conundrum.
While my mind can parse the fact that the Federal Court is the highest court of the land and that all its decisions are binding on the lower courts, what I cannot parse is whether this Federal Court is equivalent to the previous Privy Council or the previous Federal Court; and where the two superior courts stand in relation to the Supreme Court?
So, taken at an instantaneous point in time – i.e. now – things are very clear. However, in terms of binding precedent, which may go way back in time, things are less clear on whether the present Court of Appeals is bound by previous decisions made by the Supreme Court and previous Federal Court. Ditto with the present Federal Court.
Honestly, as an engineer, I think that most of this is a synchronisation issue. There was a loss of synchronisation when we went from two superior courts to one and back to two. What we need is to resynchronise with a new point of reference. However, due to the principles of stare decisis, we cannot just do away with the past.
Now, that’s not even taking into account the different laws in the land, as it stands. In almost every piece of legislation, we will have differences between most of Peninsular Malaysia, Sabah, and Sarawak. Often, there will also be differences between Penang, Malacca, and the rest of the Peninsular.