KOTA KINABALU (Oct 17): The Federal Court on Thursday denied permission for the federal government and the Public Services Department (PSD) to challenge a decision won by retired Sabah and Sarawak High Court judges, who had been successful in getting a court judgment declaring that the amended Judges’ Remuneration Act 2014, which grants serving judges a 2% annual pension rise based on their last drawn salary, was unconstitutional.
Following this, the challenge brought by former High Court judge Datuk Ian Chin, representing retired judges from Sabah and Sarawak, stands, following the unanimous judgment of the Court of Appeal, that upheld Chin’s case at the Kota Kinabalu High Court. Chin had questioned the apparent shortfall in pensions following the 2014 amendment that affected judges who retired before 2015.
On Thursday, a three-member Federal Court bench led by Federal Court judge Tan Sri Nallini Pathmanathan unanimously dismissed the government and PSD’s leave to appeal.
In her broad grounds made available to the press on Thursday, Nallini said it was important to note that the judiciary is the third arm of the government and the last bastion for the citizens of the nation.
Nallini said it was evident from the facts on record that the promulgation of the Judges’ Remuneration Amendment Act resulted in a reduction of the monthly pension for Chin, as well as the retired judges he represents.
“This in itself amounts to a contravention of the constitutionally protected rights of a judge under Article 125(7) and Article 125(9) of the Federal Constitution. Such a contravention attracts Art 4(1) and the courts below have correctly applied the very trite law in relation to the application of that Article.”
“Our (the judges’) role is to protect the sanctity of the Federal Constitution for the benefit of the citizenry. Who then is to protect the judges? Surely it must fall back on the Federal Constitution, and indeed, the Federal Constitution does provide such constitutional guarantees.
“The clear provisions there must be adhered to,” she said in referring to Article 125(7) and Article 25(9) of the Federal Constitution. The judge added that when a law has been contravened, it has to be put right.
Nallini sat with Federal Court judges Datuk Zabariah Mohd Yusoff and Datuk Rhodzhariah Bujang in the unanimous decision.
Article 125 on tenure and judges’ remuneration
Article 125 relates to the topic of the tenure and remuneration of judges, where the subsections produced below states: -
(7) The remuneration and other terms of office (including pension rights) of a judge of the Federal Court shall not be altered to his disadvantage after his appointment.
(9) This Article shall apply to a judge of the Court of Appeal and to a judge of a High Court, as it applies to a judge of the Federal Court, except that the Yang di-Pertuan Agong, before suspending under Clause (5) a judge of the Court of Appeal or a judge of a High Court other than the President of the Court of Appeal or the Chief Judge of a High Court, shall consult the President of the Court of Appeal or the Chief Judge of that High Court, instead of the Chief Justice of the Federal Court.
Nallini said the question posed by the government and PSD in seeking leave to appeal relates to a finite, small, and diminishing group of retired judges, and to that extent, the public interest element was not met.
“On the issue of novelty, as we have said, the application of Art.125(7) and Art.125(9), read together with the Judges’ Remuneration Act 2014, clearly shows a reduction in the pension received, which in turn attracts Art 4(1). Section 15B sub-section (2) in itself recognises that such a reduction subsists, and goes on to provide for an exercise of discretion by the Yang di-Pertuan Agong to remedy the same,” she said.
Article 4(1) states that any law which is inconsistent with the Federal Constitution shall be void.
For these reasons, Nallini said that the amendment as promulgated in the Judges Remuneration Act 2014 was declared void.
“We are of the view that this application of the law is well entrenched and requires no further ventilation in the Federal Court. We are also of the view that this matter does not meet the threshold of Section 96 the Courts of Judicature Act, because it is not a novel point, and is not a matter of public interest,” she said in her decision.
Chin, who retired in 2008 as a Kota Kinabalu High Court judge, had commenced his legal action in 2022, alleging that the pension paid to him after 2015 was less favourable to him.
High Court judge Leonard David Shim in his decision two years ago declared the Judges’ Remuneration Act 2014 as void and inconsistent with Article 125(7), as he held that the remuneration and pensions of judges cannot put them at a disadvantage after their appointment.
Shim ruled that the government and PSD had violated Article 125(7) by failing to pay what was due to Chin, and directed that Chin be compensated RM301,768.60, that being the shortfall in the pension paid to him between July 2016 and February 2022.
On May 7 this year, the Court of Appeal upheld Shim’s decision.
In their broad grounds, COA judges Datuk P Ravinthran and Datuk Azimah Omar, who were in the majority, said they were bound by the principle of stare decisis (to stand by things that had been decided) in another case, brought by Aminah Ahmad and 56 other pensioners, where the Federal Court had ruled that the pension adjustment made to other civil servants in 2013 were not favourable and had to be struck out.
Chin, who represented himself in this case along with Arthur Chin Chong Long, claimed that the salary revision implemented in 2015 for judges provided a higher pension, plus a 2% increment for those who retired after the amendment, and this is contrary to those who retired before 2015, as they received pensions based on their old salary plus a 2% increment.
Senior federal counsels Shamsul Bolhassan and Ahmad Hanir Hambaly @ Arwi appeared for the government and PSD.
Besides this case, there are 33 retired judges and their family members in the peninsula who are similarly challenging the amendment of the pensions, with the decision on their case is still pending.