THE DOCTRINE OF JUDICIAL PRECEDENT
In Malaysia, as in other common law countries, the law is to be found not only in legislation but also in cases decided by the court. The decision referred to are decision of the superior courts. When a judge applies or extends an established principle of law to new facts, or decided that principle does not apply in a certain situation, he is making or changing the law. But a judge does not have the liberty to do just any of these, as he is subject to the rule of stare decisis that is to stand by cases already decided. The just also must follows principles which have already been in existence in previously decided cases. In the latter case, the court would be bound not only by decision of court higher in the hierarchy to itself but also bound by its own decisions.
The doctrine of stare decisis has a two way operation are vertical and horizontal. Vertically is the superior court binds all court subordinate to it. Horizontally is a court usually an appellate court is bound by its own previous decisions, the decisions of its predecessor and the decisions of courts of co-ordinate jurisdiction.
In order to understand the hierarchy of precedents, it is necessary to refer to the hierarchy of the courts. First it has Federal court, Court of Appeal, two high court (Malaya and Sabah & Sarawak), Session court, Magistrates court and Penghulu court.
DEFINITION OF THE CUSTOMARY LAW
Customary law is the regular pattern of the social behavior accepted by a given society as binding upon itself. It prescribes behavior that has been found to be beneficial as a means of generating harmonious interpersonal relations and to solve the complicit so that a cohesive society is maintained. Various norms connected with its perception of correct social behavior and prescribed rules for ceremonies including marriage and religious rites, agricultural systems, and settlement of disputes are also part of customary law. In Malaysia, the term customary law is used interchangeably with adat or native law and custom.
ELEMENT OF MALAY CUSTOMARY LAW
The component parts of the law followed by the Malays were ancient Malay customary law, Hindu law and Islamic law. The Ancient Malay customary law distinguished into Adat Perpatih and Adat Temenggung. Adat Perpatih is the democratic matriarchal adat law which was brought to the Negeri Sembilan from Minangkabau by Minangkabau settlers. However it’s different with the Adat Temenggung. Adat temenggung is the autocratic patriarchal adat law which prevailed in other parts of the peninsula. It is believed to have originated in matriarchal Minangkabau bur was so altered under hindu influence as to lose a great deal of its matriarchal element. For the Hindu law is brought along by the Indian traders and enforced in the Hindu empires. Lastly for the Islamic law is which in the 14th century replaced in the Hindu law.
NATIVE CUSTOMARY LAWS (EAST MALAYSIA)
Native customary law is the basic law of the states. Compared to west Malaysia, application of these laws is more extensive and systematic. The customary laws applied can be divided into Malay customary law, Native customary law and Chinese customary law. Firstly, Malay customary law is applicable to the Malays. Secondly, native customary law is applicable to non-Malay natives and lastly, Chinese customary law for the Sarawak. While in Sarawak, several codifications ordinance which was enacted in 1955 to provide for the enactment of the codes of native customary law which had been approved by the rajah and also for crystallization in the form of grid unwritten law.
MALAY CUSTOMARY LAW (WEST MALAYSIA)
Malay customary law survives in part in West Malaysia today. It is either enforced by the syariah court as part of the Islamic law or as adat perpatih in negeri sembilan.
RELEVENCE OF CUSTOMARY LAW
Firstly we can see little relevance to the Chinese and Indian communities but for native of Sabah and Sarawak remains an important source of law. Malay customary land is recognized under adat perpatih in Negeri Sembilan & to limited extent in Malacca.