JUDICAL PRECEDENTS facts of the case at hand are dissimilar to the facts of

the binding decision.He may rule that the principle

being cited is obiter dista and not ratio decicendi
.Distinguishing between ratio and obiter involves
The primary task of judges is to find pre-existing law
creativity.It is rare to have only one binding precedent
and to apply it to the facts of the case before them in
on a point.Sometimes there is a whole line of cases on
an impartial,disinterested way.By far and large ,judges
an issue.The court may read the binding principle in
are law-finders,not law-makers.But it is now universally
the context of prior and subsequent decisions and may
recognised that in many direct and indirect ways
include thr ratio from a basket of precedents.This is a
judges leave their imprint on the legal system.In a
creative task.Sometimes a decision has several
recent,learned but dissenting judgement,PP v Kok Wah
“concurring judgement” and more than one ratio
Kuan (2008) 1 MLJ 1,Richard Melanjum ,CJ (Sabah and
decidendi .The lower court has a choice as to which
Sarawak)outlined to many ways in which judges can
ratio to follow.Alternatively,the court may add its own
contribute to legal growth.According to the learned
gloss to the binding precedent by inducing from the
judge ,judicial functions are multi-faceted and varied
concurring judgement a principle of law that bears the
and they necessitate creativity in many ways.Building
imprint of the construction
on the views of the learned judge it is apparent that in
a democracy with a common law system,the judicial
role is creative and not passive
2.The judge may uphold the supremacy of the
Constitution by examining the constitutionality of
parliamentary and state enactments.The judge may
Manifestation of creativity
declare the statute null and void ab-initio(from the day
it was enacted) or only from the date of the ruling .For
instance in Dato Yap Peng v PP(1987) 2 MLJ 31 the
1.The operation of the doctrine of binding precedent is Supreme Court invalidated section 418A of the
a creative task .The common law doctrine of stare Criminal Procedure Code prospectively.
decisis(“let the decision stand”) refers to the related
rules.First,interior courts are bound by superior court
decision in like cases .Second,superior court are
generally bound by their own decision .To this can be
added a third rule that superior court have the power 3.The judge may modify a pre-Merdeka law under
to overrule principle of law laid down by court of Article 162(6) to make it fall in line with the supreme
inferior jurisdiction .In operating the doctrine of Constitution.
binding judicial precedent,a judge may formulate an
original precedent;overrule an earlier precedent ;or
creatively interpret an existing one .He may
distinguish the cases on facts. He may decide that the
4.The judge may interpret an existing statute
creatively.The interpretive task is,in its functioning if
not in its form,virtually indistinguishable from the law
creating task.In interpreting pre-existing law the judge
is not an automaton performing a slot-machine
function Statutes enacted in one age have to be
applied in a time frame of the continuum to problem of
another age.A present time-frame interpretation to a
past time frame statute invariably involves the judge
in a time-travel from the past to the present .He has to
cause the statute to leapfrog decades or centuries in
order to apply it to be felt necessities of the times .For
example Article 5 (1) of the Constitution requires that
“no person shall be deprived of his life or personal
liberty save in accordance with law” .In Tan Tek Seng
(1996) 2 AMR 1617 and Hong Leong (1996) 1 MLJ 46
the court held that the term ‘life’ does not refer to
mere physical existence .It include the dignity and
necessities of life like employment and the right to live
in a reasonably healthy and pollution free
enviroinment.In Sugumar Balakrishnan (1998) 3 MLJ
289 it was held that the term ‘personal liberty’ include
the liberty of an individual to seek judicial review.In
the USA in Roe v Wade 410 U.S 113(1973) a woman’s
personal liberty was interpreted to encompass a right
to abortion.
5.The application of the doctrine of ultra vires permits
tremendous judicial creativity.
6.The import of the rules natural justice into statutory
contexts permits the court to apply common law
standards of procedural fairness to situations when the
stated law is either silent on procedure fairness to
situation when the stated law is either silent on
procedure or the prescribed procedure is found
wanting.
Criticisms of judicial activism
It must be noted,however ,that the “traditionalists”
disfavour an activist role for the judiciary .The
supporters of the “declaratory theory” assert that the
primary function of a judge is to give effect to the will
of Parliament and to undertake the “disinterested
application of known law” .The prominent arguments
of the traditionalists are as that the function of the
judge is to
Expound,interpret and apply preexisting law. In
interpreting the language of statue, judges must show
fidelity to the text and intent of legislation. They must
interpret the law strictly. They must rely on logic. They
must not ignore the clear word of a statue or travel
outside the four corners of a judicial interpretation
because it is for parliament to set things right if the
consequences are undersirable. In sum, judges must
be servants, not masters of the law.
Such judicial restraint is consistent with the
doctrine of separation of powers which forbids one
branch of government from usurping the functions of
another branch. In facts judges themselves disclaim
the power to lay down a new principle on the ground
that is parliament’s job. For examples’s, in Knuller v
DPP [ 1973 ] AC 435 the English House of Lords
rejected the doctrine that the courts have some
general power either to create a new offences or to
widen existing offences, so as to make punishable
conduct not hitherto subject to punishment.
Even if it is conceded that judicial creativity is
sometimes unavoidable, it must be noted that judicial
law-making, when it takes place, Is severaly
constrained. Judges cannot ignore the clear words of
statue. Judicial legislation is always subject to being
overridden by parliamentary enactments.
What is mistaken as judicial law making is often
the application of existing law to new circumstances.
Much of the common law is nothing but the customs
and usages of the realm. In any case in most litigation
the issues is one of fact not of law.
Statutory interpretation does not give judges an
unfettered discretion because most legal expressions
have acore or paradigm of certainty even if there is a
penumbra of uncertainty at the fringes.
The proliferation of legislation, particularly over
the last half-century, has greatly narrowed the field in
which purely common-law principles may be brought
into play. On most questions of law there is already
existing an Act of Parliament to be applied or abinding
judicial precedent to be followed irrespective of
wheather the judge likes them or not. In any case the
law-creative role of the judges is not an independent
or separate power. It is purely incidental to his role as
the interpreter of law.
The doctrine of stare decisis fetters judicial
discreation. Under this doctrine undoubtedly hampers
judicial creativity and judges have often felt duty
bound to rely on previous decisions even if in their
opinion these decisions were clearly wrong.
Even though it is true that superior courts can
overrule inferior courts decision, the reality is that
despite the possibility of overruling, a judicial rule once
firmly established cannot be easily altered except by
statutory intervention.
Judicial creativity, whenever it takes place, is
not always a good thing. Even if we grant that great
progress has been made in many branches law
because of judicial creativity, it must be acknowledged
that sometimes judge-made law is plainly bad law.
The doctrine of “common employment” in Priestly v
Fowler 3 Mees. & Wels 1 ( Exchequer, 1837) is widely
regarded as a disastrous doctrine forbade an
employee from suing the employer for the negligence
of employees.
Judicial interpretation and reinterpretation of
binding precedents and statues does not always lead
to desirable results. Because of the very nature of
judicial decisions the law that they expound is often
vague and with many loose ends. The deads weight of
precedent often carries the law in wrong channels.
Attempts to “distinguish” cases only confuse the
situation. Whenever reform of the law undertaken by
the judiciary, the reforms is, necessarily, piece-meal
and incomplete.
Judicial law-making, wheather as an original
precedent or as an overruled precedent suffers from
one great vice. It is generally backdated. It is
retrospective in nature unless the courts employ the
doctrine of prospective over-ruling. Whenever an
existing rule of common law is dissented from, a new
complexion is imposed on past events. What was
previously settled is made uncertain.
 If a judges leaves the law and makes his own
decision, even if in substance the decision is just, he
sacrifies the appearances of impartiality, which is
given by adherence to the law. The law ought the
guide the judge. A judge’s obsession with social justice
might be dangerous. He might not administer the law
fairly if he were constantly questioning its justice or
agitating his