Retired Civil Servants Give Govt 21 Days To Adjust Pension

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A retired civil servant on behalf of 56 other retirees has issued a letter of demand for the government to adjust pension calculation, following the landmark court ruling nullifying the amended pension law.
Counsel Baljit Singh Sidhu confirmed with Malaysiakini that his client Aminah Ahmad sent the legal letter to the chief secretary to the government, to the director-general and deputy director-general (operations) of the Public Service Department (PSD), as well as the Pension Department director.
The lawyer said his client is seeking immediate action to adjust the pension calculation in accordance with Sections 3 and 6 of the Pension Adjustment Act 1980, prior to the amendment, and to pay pension arrears as adjusted from Jan 13.
“The letter of demand was issued due to the failure of the government of Malaysia and the Public Service director-general to comply with the court order issued by the Court of Appeal on Jan 13, 2023 (followed by the Federal Court [upholding the decision by the appellate court] on June 27, 2023),” Baljit said.
“The government and the Public Service director-general as organs of the state have heightened duties to respect the rule of law and should assist and protect the courts to ensure the independence, impartiality, and effectiveness of the courts.
“The government must obey the Federal Constitution and the judgment of the Federal Court and should not delay the implementations of the court orders as it amounts to injustice to the pensioners who are entitled to enjoy the fruits of their labour.
“In fact, most of these pensioners are in the later years of their lives and should not be deprived of their constitutional right accorded to them by the government and further ordered by the Court of Appeal and the Federal Court,” Baljit said.
The 21-day ultimatum is to run from the date of service of the letter of demand, which is Friday last week. It is understood that the legal letter has been served on the government representatives.
Malaysiakini is attempting to reach out to the government’s legal representatives from the Attorney-General’s Chambers (AGC) for a response over the matter.
On June 27, Bernama reported Federal Court affirming the Court of Appeal’s decision that declared the amended pension law null and void.
The five-member apex bench led by Court of Appeal president Abang Iskandar Abang Hashim unanimously dismissed the appeal by the government and PSD director-general to overturn the appellate court’s verdict.
Public Service Department buildingThe others on the bench were Chief Judge of Malaya Mohamad Zabidin Mohd Diah, Chief Judge of Sabah and Sarawak Abdul Rahman Sebli, as well as Federal Court judges Hasnah Mohamed Hashim and Rhodzariah Bujang.
Less favourable increment
In delivering the court’s ruling, Zabidin said Section 3 and Section 7 of the Pensions Adjustment (Amendment) Act 2013 (PAA), which allows a two percent increment annually, were less favourable to pensioners and thus contravened Article 147 of the Federal Constitution - which provides for the protection of pension rights.
“It is our unanimous decision that there is no merit in the appellants’ (the government and PSD director-general’s) appeal. The appeal is therefore dismissed and the decision and order of the Court of Appeal is affirmed,” he said.
Chief Judge of Malaya Mohamad Zabidin Mohd DiahZabidin also said both the High Court and Court of Appeal observed that the amended Section 3(2) of the PAA was in fact an acknowledgement that the amendments could result in a less favourable situation.
Zabidin said the appellate court was right to point out that the less favourable situation may never be rectified as the mechanism provided under the amended Section 3(2) of the PAA to address a less favourable situation should it arise, was merely “permissive” and imposes no obligation to act.
The amended Section 3(2) of the PAA states that where the application of a specified rate of increment would result in a situation that is less favourable to an officer appointed before the coming into force of the amendment, the Yang di-Pertuan Agong may by order in the gazette an appropriate higher percentage of increment to be applied in such cases.
Zabidin also said the Court of Appeal was correct to restore the status quo prior to amendments to the Act because when the court strikes down the statute or amendment to the statute, the pre-existing provision is automatically revived.
Aminah’s suit
On Jan 13 last year, the Court of Appeal declared the amended Section 3 and Section 7, which came into effect from Jan 1, 2013, null and void as they contravened Article 147 of the Federal Constitution.
Aminah, who retired as a civil servant with the Foreign Ministry, sued the Malaysian government and the PSD director-general in her personal capacity and on behalf of 56 retired members of the public services, claiming the amendments to the PAA in 2013 resulted in a situation “less favourable” to her as compared with the preceding retirement adjustment Scheme under the Pensions Adjustment Act 1980.
Under the previous scheme, a retiree’s pension is revised based on the prevailing salary of incumbent civil servants in that grade. However, the 2013 amendment was introduced based on a flat rate of two percent annual increment.
Aminah initially lost her case at the High Court in 2020. She then appealed to the Court of Appeal which decided in her favour. The government and the PSD director-general obtained leave to appeal last year. - Mkini

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