KUALA LUMPUR (Dec 1): Ex-judges who retired before the implementation of the Judges’ Remuneration Amendment Act 2014, which had been declared by the courts as being unconstitutional, have received their arrears in their November pensions.  Meanwhile, those who retired after July 1, 2015, when the Act was gazetted, also received revisions to their pensions, following revisions to their salary scale.

Random checks by The Edge with several former Federal Court, Court of Appeal and High Court judges revealed that they received their arrears or revision in payments to their November pension.

“Yes, I can confirm the arrears to the pension were paid out last month,” a former Federal Court judge said on condition of anonymity.

When contacted separately by The Edge, former High Court judge Datuk Noor Azian Shaari and former Court of Appeal judge Datuk Shaikh Daud Ismail, who retired before 2015, also confirmed receiving the arrears to their pensions last month.

Separately, several Court of Appeal judges who retired after July 1, 2015 also told The Edge that they had received their pension revisions.

Despite this, it is understood that the 37 judges or their spouses are continuing with their suit against the government, which they filed in January 2022 despite several negotiations to settle the matter.

A senior official from the Attorney General’s Chambers separately confirmed with The Edge that the former judges received their pension arrears and revisions last month, and also said that they understand that the suit is still ongoing, despite negotiations being made to settle it out of court.

The 37 ex-judges that comprise a former Court of Appeal president, two former chief judges of Malaya, and several former Federal Court, COA and High Court judges were among the individuals and eight dependents who took the government, prime minister, Cabinet and director general of the Public Services Department (PSD) to court over adjustments to their pension.

Originally, 33 judges and dependents filed an originating summons in the High Court over the government’s failure to implement an appropriate percentage of adjustment higher than 2% annually to their pension and other benefits pursuant to Section 15B(2) of the Judges’ Remuneration Act 1971. Since then, and as of April 2023, four more plaintiffs have joined the suit.

In the originating summons filed by the then Messrs Chooi & Company + Cheang & Ariff (now unmerged to Chooi & Company, and separately, Cheang& Ariff), the former judges claimed that the increment implemented on July 1, 2015, that provides the adjustment, is a violation of Article 125(7), read together with Article 125(9) of the Federal Constitution.

Article 125(7) stipulates that the remuneration and other terms of office (including pension rights) of judges of the Federal Court shall not be altered to their disadvantage after their appointment.

Among others, the plaintiffs are seeking a declaration that the gazette for the higher percentage of adjustment of 2% annually to their pension and other benefits had been altered to their disadvantage.

Among the 37 judges/dependents are former COA president Tan Sri Alauddin Md Sheriff, former chief judges of Malaya Tan Sri Haidar Mohamed Nor and Tan Sri Siti Norma Yaakob, and former Federal Court judge Tan Sri Sulong Matjeraie.

The Edge understands that the arrears and revision payments could have been made following a Federal Court decision that denied the leave (permission) application by the government and the PSD to challenge a decision won by retired Sabah and Sarawak High Court judges, who were successful in getting a court judgment that the amended Judges’ Remuneration Amendment Act 2014, which grants serving judges a 2% annual pension rise based on their last drawn salary, was unconstitutional.

Federal Court judge Tan Sri Nallini Pathmanathan, in her broad grounds on Oct 17, this year, 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 then Sabah High Court judge Ian 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.

She added 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 Amendment Act 2014 was declared void.

In a majority decision on May 7 this year, the Court of Appeal upheld the Kota Kinabalu High Court’s decision that declared the amended Judges’ Remuneration Act 2014, passed during former prime minister Datuk Seri Najib Razak governance, was unconstitutional.

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 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.

Aminah and 56 other pensioners’ case had on June 27, 2023, seen a five-member Federal Court bench led by then Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah rule that the amendment to Sections 3 and 7 of the Pensions Adjustment (Amendment) 2013 Act (PAA), which allowed a 2% increment annually, was less favourable to pensioners, and thus declared it null and void.

The court held that the provisions contravened Article 147 of the Federal Constitution, which deals with the protection of pension rights.

In upholding the Court of Appeal decision, Zabidin said the appellate court was right in restoring the status quo of preserving the original Sections 3 and 6 prior to the 2013 amendment.

“We find no reason to depart from the Court of Appeal judgment. Hence, the apex court finds no merit in the appeal by the government and the Public Services Department (PSD) director general, and the appeal is dismissed.”

Despite this, Aminah had to go to the High Court to enforce the Federal Court decision, and the High Court will decide on this on Monday.

Read also:
Former Fed Court judge, widow of COA court judge join ex-judges' suit against govt over pensions
Govt, ex-judges, dependants given more time to settle pension suit
Top court blocks govt’s bid to challenge decision over retired Sabah and Sarawak judges' pension adjustment
Judges Remuneration Act 2014 unconstitutional for judges who retired before 2015, rules COA majority
Apex court quashes amendments to Pensions Act that provide flat 2% annual increment, says it's less favourable to pensioners
Pensioners want High Court to enforce January 2022 COA ruling regarding their pension arrears