Conflicting Court of Appeal

Yesterday, in the case of Yuneswaran, our Court of Appeal backtracked on it’s earlier decision given in Nik Nazmi v PP that is to say that: with regards to the Peaceful Assembly Act, Section 9(5) is valid and enforceable.

Now, I have yet to read the full written judgement so I don’t know the full reasoning behind this backtracking. However, based on the scant news reports, it seems that the bench did not provide answers to many of the issues raised by Yuneswaran’s counsel during submissions.

We alerted this bench that they cannot go against the 2014 case of Nik Nazmi Nik Ahmad versus Public Prosecutor on the same issue. We told the judges that only the Federal Court could overrule the Court of Appeal.

Looks like stare decisis has gone out the window.

In Dalip Bhagwan Singh v PP, a Federal Court case, the salient point of that case is that the only reasons for the Court of Appeal to depart from its own previous decision has been spelled out in Young v Bristol Aeroplane Co Ltd, which are:

  1. a decision of the Court of Appeal given per incuriam need not be followed;
  2. when faced with a conflict in respect of its own previous decisions, the Court of Appeal may choose which decision to follow irrespective of the dates of those decisions; and
  3. the Court of Appeal ought not to follow its own previous decisions if such decisions are, expressly or by necessary implication, overruled by the Federal Court, or if they cannot stand with a decision of the Federal Court.

Since there are no previous conflicts in respect of its own decisions, reason (ii) does not apply. Since the case never reached the Federal Court, reason (iii) does not apply either. Therefore, I humbly submit that the counsel for Yuneswaran is right and that the Court of Appeal has made an error unless it can show that the previous decision was made per incuriam.

By simply making the decision that it made yesterday, the Court of Appeal itself has potentially stepped beyond its powers unless it can show that the previous decision made was a mistake. I would love to see the legal reasoning that goes into calling the previous decision a mistake. Simply saying that it will cause uncertainty in Law is not a legal reason for regarding it as a mistake.

The best solution would have been to have the issue brought up to the Federal Court and decided there. That is the whole principle of stare decisis that we have governing the Courts. If any Court can simply depart from its previous decisions, that would result in uncertainty in Law.

With this one decision, the Court of Appeal has single-handedly created the very uncertainty in Law that it sought to avoid.