When I was first approached to talk at this (Bar Council) forum, my specific assignment was a review of the Anwar saga and all cases related to the unfolding of that sorry tale. In fact the draft programme sent to me in no uncertain terms laid out the names 'Zainur/Anwar'.

Now that was a subject that excited emotions and set brother against brother. I expected in my review to catalogue, briefly, before you the abuses of the criminal justice system that had occurred over the last three years or so, and I qualify this, as I saw them.

One caveat. No two persons will see or approach an issue in exactly the same manner and therein lies the rub: What price inconsistency?

Somewhere along the way between the draft and this forum the topic got administratively hijacked and emerged suitably whitewashed into what you see it to be today: a bland, almost reverential dry review of the concept of adjudicative consistency.

And to compound things, the Bar Council went and labelled this shebang a 'colloquium', which is variously defined as an academic seminar! I almost feel as if I am expected to talk to you, after tea, when you are sated and tired, on the theory of stare decisis and the judicial glory of precedents.

I propose to do no such thing.

If you want an academic paper on the theory of stare decisis as it has been applied or not applied as the case may be in recent criminal cases, then that will have to wait for another day.

Besides there are always the law reports for you to look at and read when your time allows.

I propose to talk about the matter that was first intimated to me and confine myself to the Anwar/Sukma/Munawar/Nalla/Zainur saga [and not necessarily in that order] and examine whether consistency in the criminal justice system was compromised in those matters.

I expect you to go away from here today recognising the fact that consistency, whether adjudicative or otherwise, is foolish if it is not based on equality, integrity and justice; that consistency is not the private domain of courts and judges and hence limited only to that arena; and that you, the Bar and the Public Prosecutor's office, cannot wash your hands and turn a blind eye to the demands of collective responsibility for the wrongs carried out in the name of justice.

But first let's pose the Bar Council's question: Is consistency a virtue?

The merchant of Venice

The answer at first blush seems obvious but pause; it is not that obvious. What consistency are we talking about? Does the Bar Council mean by consistency the criminal justice system shenanigans of the last three and a half years? And if the answer to that second question is 'yes', then I will say to you that consistency of that sort is no virtue.

You can almost hear S Augustine Paul echoing Portia's words in The merchant of Venice [Act 4, sc 1, ll 215-219]:

"There is no power in Venice
Can alter a decree established:
'Twill be recorded for a precedent,
And many an error by the same example
Will rush into the state."

And then in the very next breath hear Abdul Gani Patail whispering Shylock's exhortation to the judge:

"A Daniel come to judgment: yea a Daniel!
O wisejudge how I do honour thee!"

And then adding ever so obsequiously

"O wise and upright judge,
How much more elder art thou than thy looks!"

Those of you who practice at the Criminal Bar may well disagree with what I have to say next. It is unlikely, very, very unlikely that the body of cases concerning the Anwar saga will feature prominently in Criminal Law texts as being authoritative citations on any point of law. They are not good law. Bad cases do not make good precedents.

The cases will, naturally, be quoted ad nauseaum in certain Evidence texts but that will not change their quality or worth.

Let us approach the issue of consistency from the conduct of the three main players in the criminal justice system: the judge, the prosecutor and the defence lawyer.

Consistency and doctrine of precedent

Perhaps the obvious needs to be first stated and considered. What is the doctrine of precedent or of stare decisis?

The operation of the doctrine of stare decisis is best explained by reference to the English translation of the Latin phrase. Stare decisis literally translates as "to stand by decided matters". The phrase stare decisis is itself an abbreviation of the Latin phrase stare decisis et non quieta movere which translates as "to stand by decisions and not to disturb settled matters".

Basically, under the doctrine of stare decisis, the decision of a higher court within the same provincial jurisdiction acts as binding authority on a lower court within that same jurisdiction.

The decision of a court of another jurisdiction only acts as persuasive authority. The degree of persuasiveness is dependent upon various factors, including, first, the nature of the other jurisdiction. Second, the degree of persuasiveness is dependent upon the level of court that decided the precedent case in the other jurisdiction.

Other factors include the date of the precedent case, on the assumption that the more recent the case, the more reliable it will be as authority for a given proposition, although this is not necessarily so. And on some occasions, the judge's reputation may affect the degree of persuasiveness of the authority.

In Learning the law (9th ed 1973), Glanville Williams describes the doctrine in practical terms:

What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned.

There is considerable literature about whether the doctrine of stare decisis is a good or bad one but the doctrine is usually justified by arguments that focus on the desirability of stability and certainty in the law and also by notions of justice and fairness.

Benjamin Cardozo in his treatise, The nature of the judicial process stated:

It will not do to decide the same question one way between one set of litigants and the opposite way between another. If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights. Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.

But liberty to decide each case as you think right, without regard to principles laid down in previous similar cases, would only result in a completely uncertain law in which no citizen would know his rights or liabilities until he knew before what Judge his case would come and could guess what view that Judge would take on a consideration of the matter, without any regard to previous decisions.

That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering the observation of American philosopher William K Frankena as to what constitutes injustice:

The paradigm case of injustice is that in which there are two similar individuals in similar circumstances and one of them is treated better or worse than the other. In this case, the cry of injustice rightly goes up against the responsible agent or group; and unless that agent or group can establish that there is some relevant dissimilarity after all between the individuals concerned and their circumstances, he or they will be guilty as charged.

Truth and justice

The critics of the doctrine accept it as the general rule but chafe under it when the staleness of old law leads to unfairness and injustice. For example, Lord Denning, the former Master of the Rolls has argued:

If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice, which they should serve, they may find the whole edifice come tumbling down about them. Just as the scientist seeks for truth, so the lawyer should seek for justice. Just as the scientist takes his instances and from them builds up his general propositions, so the lawyer should take his precedents and from them build up his general principles. Just as the propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice.

But if strictly observed, the scope of stare decisis can extend far beyond a single unjust decision. Its effects can be cumulative: A single erroneous court decision, if followed, becomes two erroneous decisions, then three, and soon a 'line' of cases. In this way, stare decisis has the potential to import injustice irremediably into the law.

Of course, in practice stare decisis probably is not often as bad as all that. Just as it can institutionalise erroneous results, it also can (and certainly often does) ensure that just decisions are reproduced more often than they otherwise would be.

And the rule of stare decisis as currently observed in Anglo-American law is not a strict one: Courts can decline to follow their own previous decisions when those precedents are judged to be clearly in error.

Lawyers and judges, moreover, regularly display amazing ingenuity in 'distinguishing' unfavourable precedents that otherwise would be 'controlling'. In the real world, then, the prospect of grievous injustice 'rushing into the state' may seem rather remote.

But the prospect exists nonetheless. Courts may be adept at manipulating precedent to reach decisions they want to reach, but they are not always able or willing to do so; sometimes courts believe (or claim to believe) they are bound by stare decisis to reach results they think unjust.

But if stare decisis continues to play an important role in adjudication, it is a strange, uncomfortable role one that sometimes seems to procure injustice in the name of the law, and one that therefore demands convincing explanation.

What good can come of a rule that prescribes consistency even at the expense of justice? What, indeed, is the point of stare decisis?

There are two answers to that question. The difference between them is crucial.

One kind of answer is that stare decisis is justified because, and only to the extent that, it serves the interests of justice in a general sense. This answer acknowledges that stare decisis must always be tested for how well it serves the ultimate end of justice to determine whether it has value in any given case.

The other kind of answer is that stare decisis (or, more precisely, the adjudicative consistency it serves) is an end in itself.

Tomorrow: How do you justify consistency

MANJEET SINGH DHILLON is a senior lawyer. The above is part of a speech delivered at the Bar Council colloquium 'Current judicial trends and the rule of justice' on Sept 21.