KUALA LUMPUR (Oct 2): Fifty-six pensioners want the High Court to enforce the Court of Appeal (COA) decision of a mandamus order to compel the government that they are entitled to obtain their pre-2013 pension adjustment arrears prospectively from the appellate court’s decision in January 2022.

The pensioners led by Aminah Ahmad, who filed the class action on behalf of all pensioners, told the court that the arrears to their pensions which they have yet to obtain should be calculated from January 2022 until the date of this court’s enforcement of the judgement.

Aminah’s counsel Datuk Dr Abd Shukor Ahmad told High Court judge Datuk Amarjeet Singh that since their clients were successful in challenging the constitutionality of Sections 3 and 6 of the Pension Adjustment Act 2013 at the COA in 2022, and the decision was upheld before the Federal Court, the judgement at the appellate court remains.

The judgement, written by then COA judge Datuk Darryl Goon, stipulating that the arrears be applied prospectively since January 2022 should apply, said Shukor.

The counsel added that to apply the arrears retrospectively from 2013, as the appellate court ruled, would lead to confusion as the government had only allowed an annual increase of 2%, which now has been declared as unconstitutional and the calculation would return to pre-2013 method.

“There has always been salary revision [for] government employees and [for] employees, there ought to be revision to the pensioners’ pension as they ought to be on par,” said Shukor, who appeared with Datuk Baljit Singh Sidhu, adding that this was the only issue that the pensioners disagreed about with the government.

In 2022, the pensioners were successful, at the COA, in having Sections 3 and 6 of the Pension Adjustment Act 2013 declared as unconstitutional and for it to revert back to the original 1980 version of the Act.

This follows the appellate court finding Sections 3 and 6 of the Pension Adjustment Act 2013 to be in violation of Article 147(1) of the Federal Constitution that stipulates:

“The law applicable to any pension, gratuity or other like allowance (in this Article referred to as an 'award') granted to a member of any of the public services, or to his widow, children, dependant or personal representatives, shall be that in force on the relevant day or any later law not less favourable to the person to whom the award is made.”

Aminah and the other pensioners had initially filed their judicial review in 2017 and lost at the High Court. In 2022, the COA reversed the High Court’s decision, and ordered that the arrears be calculated and given prospectively.

The COA decision was unanimously upheld by the Federal Court on June 27, 2023, and since then, the pensioners had been awaiting their arrears.

Following the non-compliance in implementing the arrears, their solicitor from Messrs Shukor and Baljit wrote to the Public Services Department (PSD) and reminded them of the Pension Adjustment Act 1980, which was restored by the Federal Court decision last year.

“The Pension Adjustment Act 1980 stipulates that pensioners have a right to receive such benefits of increment, which are equivalent to those who are still serving. The purpose is to ensure that those who receive pensions remain in the appropriate status of the present equivalent lifestyle of the officer in their grade,” the provision states.

This led to Aminah and the other pensioners filing the action earlier this year, where she named the government and PSD director general as respondents.

Federal counsel M Kogilambigai in reply said the 2013 amendment is not considered a salary revision but an improvement in the structure of wages, which may not apply to pensioners.

She added the High Court ruled that the pensioners did not suffer any losses and did not file an appeal on this issue, and the government argued that they are bound by estoppel (barred) and res judicata (no longer subject in the appeal) as the issue was not raised at the COA and Federal Court.

“The principle of res judicata applies as it (appeal on not suffering any losses) had not been taken up. They failed to proceed further in the matter at the upper courts,” Kogilambigai said.

Amarjeet said the court wants both parties to provide further written submission on who has the authority to cause the salary revision to be made.

Following that, Amarjeet fixed Dec 2 to deliver his decision on the matter.

Read also:
Court gives nod to govt retirees’ bid to hasten pension adjustments
Pensioners warn of further action if govt does not pay backdated pensions, adjustments
Apex court quashes amendments to Pensions Act that provide flat 2% annual increment, says it's less favourable to pensioners