PUTRAJAYA (June 4): A three-member Court of Appeal bench on Wednesday allowed the government’s appeal and ruled there was no discrimination against Armed Forces veterans concerning pension adjustments.
Following this, the appellate bench ruled that the High Court judge had erred in her judgment that there was discrimination that required appellate intervention.
“Following this, the defendant's appeal is allowed and we make no order as to costs,” judge Datuk Hashim Hamzah said in the unanimous decision.
Judge Datuk Wong Kian Keong wrote a supporting judgment in support of Hamzah, while the third judge Datuk Ismail Brahim also agreed with the other judges in the decision.
The pensioners, who challenged the government's decision not to adjust the pensions of those who retired before Jan 1, 2013, comprised Major (Rtd) Mior Rosli Mior Md Jaafar and 49 other former Armed Forces veterans.
They named the government, prime minister, defence minister and the Armed Forces Council as defendants, alleging discrimination against pensioners who retired before Jan 1, 2013 as compared to those who retired after that, with those who retired after that enjoying higher pensions compared to them.
This case is separate from the Aminah Ahmad and civil servants pension case, where the High Court last year ordered the government to pay arrears to their pensions.
However, the government is appealing the Aminah decision, with a hearing pending before the Court of Appeal.
In gist, the judges on Wednesday ruled that Armed Forces veterans who retired before Jan 1, 2013 had been subjected to salary revisions since 2002, which saw their pensions increased.
Salary adjustments in 2013 not a revision
However, Hashim and Wong determined that the 2013 salary scale was adjusted to attract more people to join the Armed Forces, rather than being a revision meant for current personnel, as the government circular implied.
The increase in salary scale to those after 2013 is proportionate as this was meant to improve the salaries of those still serving as compared to those who have retired, added Wong.
In his grounds, Wong said the difference between those who retired before and after Jan 1, 2013, is due to two documents issued in 2013 — Garis Panduan Pelaksanaan Pindaan Syarat-Syarat Perkhidmatan Angkatan Tentera Malaysia dated Jan 17, 2013, and Surat Pelaksanaan Kesetaraan Pangkat dan Penambahbaikan Jadual Gaji Minimum Maksimum Bagi Perkhidmatan Angkatan Tentera Malaysia di bawah system Saraan Malaysia dated March 14, 2013 — that updated the terms of service and salary structure for armed forces personnel.
He said the “Surat Pelaksanaan” was not a salary revision but a change to the terms of service that only applies to those who retired after Jan 1, 2013.
“The object of the Garis Panduan and Surat Pelaksanaan was to equalise and enhance the salary scale of serving members of the armed forces. The object was not to discriminate between pensioners (retired before Jan 1, 2013) with those retired after.“
“Hence, the judicial commissioner had erred in her decision that there was discrimination that was unconstitutional,” Wong added.
The bench ruled that army pensioners who retired before Jan 1, 2013 are not entitled to pension adjustments as they are only entitled to salary revisions.
Hence, the bench found that there was no violation of the Armed Forces pensioners' rights under Articles 5, 8 and 147 of the Federal Constitution.
Article 5 concerns the liberty of a person, while Article 8 is the right to equality before the law.
Article 147 (1) stipulates the law applicable to any 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, dependent or personal representatives, shall be in force on the relevant day or any other law not less favourable to the person to whom the award is made.
Lawyer Mohd Haniff Khatri Abdulla appeared for the Armed Forces pensioners while federal counsel M Kogilambigai appeared for the government and other respondents.
When asked, Haniff said they would study the grounds of the decision before deciding whether to seek leave to appeal at the Federal Court.
In civil cases at the Federal Court, leave (permission) must first be gained for the merits of the appeal to be heard on questions of law.
On February 5, last year, Judicial Commissioner Dr Suzana Muhamad Said ruled that all Armed Forces personnel who retired before Jan 1, 2013, are entitled to have their pensions adjusted to the rates and methods applied to all retirees who retired after Jan 1, 2013.
Mior Rosli filed the originating summons claiming that the rights of pensioners were violated under Articles 5, 8 and 147 of the Federal Constitution, and Section 187 of the Malaysian Armed Forces Act 1972, for not applying the pension adjustment to those who retired pre-Jan 1, 2013.