PUTRAJAYA (June 16): A three-member Federal Court bench led by Chief Justice (CJ) Tun Tengku Maimun Tuan Mat had on Thursday (June 16) granted leave to the Malaysian government and the director-general of the Public Services Department (PSD) to appeal an appellate court decision this year that quashed a 2013 amendment to the Pensions Adjustment Act that had been declared unconstitutional as it was deemed financially less favourable than before the amendment.
This follows the apex bench allowing at least three questions of law to be decided when it hears the full merits of the application at a later date.
The three questions are:
- whether Sections 3 and 6 of the Pensions Adjustment Act 1980 as amended by Sections 3 and 7 of the Pensions Adjustment (Amendment) Act 2013 contravene Article 147 of the Federal Constitution when a pensioner fails to prove that the adjusted pension received is actually less favourable when it is compared to the former law
- whether Section 3 of the Pensions Adjustment Act 1980 as amended by Section 3 of the Pensions Adjustment (Amendment) 2013 which enables or empowers the Yang di-Pertuan Agong to prescribe an appropriate higher percentage of increment to an officer before the coming into effect of the amendment should a situation that is less favourable arise is in itself a contravention of Article 147 of the Constitution
- whether a court of law in granting a declaratory order is competent and has the necessary jurisdiction to substitute a government policy which is approved by the Parliament by way of a statutory amendment when the said policy is not even the subject matter of dispute by the parties in legal proceedings.
The bench also allowed the government to formulate an additional question.
Besides the CJ, the other members of the bench were Justices Datuk Mary Lim Thiam Suan and Datuk Seri Hasnah Mohammed Hashim.
Earlier this year, a three-member bench allowed the appeal by a former Wisma Putra officer, Aminah Ahmad, who represented 56 other civil servants in quashing the 2013 amendment that was deemed less favourable to them.
Justice Datuk Daryl Goon wrote the unanimous decision in allowing the appeal. The bench was led by Justice Datuk Vazeer Alam Mydin Meera, and Justice Datuk Abu Bakar Jais was the other judge.
Under the previous scheme, the pension of retirees is revised based on the prevailing salary of incumbent civil servants of that grade.
However, the 2013 amendment introduced and applied a flat rate of 2% annual increment which Aminah argued was less favourable to them.
Article 147 of the Constitution stipulates protection of pension rights that stipulates any award should not be less favourable than before.
Senior federal counsel Liew Horng Bin appeared for the government and PSD.