The Court of Appeal was told today that government retirees are not entitled to a pension adjustment under a 2016 public service department (JPA) circular, as the document does provide for a salary revision.
Senior federal counsel Ahmad Hanir Hambali said paragraph 3 of the circular, known as PP 1/2016, made no mention of the term “salary revision”.
“The circular is merely an enhancement of the service scheme for civil servants,” he said in submissions before a three-member bench chaired by Justice Lim Chong Fong.
Also on the bench hearing the appeal were Justices Azhahari Kamal Ramli and Meor Hashimi Abdul Hamid.
The government and JPA director-general are seeking to overturn a Kuala Lumpur High Court ruling made in favour of a group of pensioners, led by Aminah Ahmad, earlier this year.
Hanir, who is assisted by federal counsel M Kogilambigai, said the High Court had erred in holding that the circular amounted to a salary hike for civil servants.
He said the subject matter in the judicial review had previously been raised by the former civil servants in an originating summons filed in 2017.
“There is no distinction between the legal and factual issues raised in the 2017 suit and the present judicial review,” he said, adding that the present proceedings are caught by the res judicata doctrine and cannot be re-litigated in the courts.
Lawyer Abdul Shukor Ahmad, appearing for the pensioners, urged the bench to dismiss the appeal.
He submitted that although the circular was targeted at a group of civil servants, it extends to prescribe pension adjustments for retirees.
“One must not merely look at the labelling of the circular but its substance,” said Shukor, who was assisted by Baljit Singh Sidhu and Gurpreet Kaur Pannu.
He said the judicial review application was not an abuse of process, pointing out that the earlier suit had focused solely on the constitutionality of a 2013 amendment to the Pensions Adjustment Act 1980, which was eventually declared null and void.
Shukor said the government’s stand that the circular was not pleaded in the judicial review was “inaccurate”.
“It was expressly stated in the affidavit in support which was affirmed by Aminah. The government has responded to it quite extensively,” he said.
As such, Shukor said there is also no denial of natural justice, especially on the right to be heard.
The Court of Appeal has fixed the matter for case management on Sept 17 with a view to fixing a date for its ruling.
On Jan 16, Justice Amarjeet Singh issued a mandamus order compelling the government to expedite adjustments to pensions of the former civil servants in accordance with a previous court ruling.
The judge said government pensioners were entitled under the Pensions Adjustment Act 1980 (PAA) to pensions corresponding to adjustments in the salary of serving civil servants.
Amarjeet ordered the director-general of the JPA to make the necessary pension payments within three months, but the government obtained a stay pending the outcome of its appeal.
The 56 pensioners want the government to implement adjustments to their pensions in accordance with the formula prescribed in Sections 3 and 6 of the PAA prior to amendments to the law made in 2013.
Under the old scheme, a retiree’s pension was to be revised based on the prevailing salary of incumbent civil servants in the same grade.
The 2013 amendments sought to introduce a flat-rate annual increment of 2%.
Aminah lost her initial suit in the High Court in 2020.
However, the Court of Appeal in 2022 overturned that decision, ruling that the 2013 PAA amendments were null and void as they had put the applicants in a less favourable position than previously, in breach of Article 147 of the Federal Constitution.
On June 27, 2023, a five-member Federal Court bench upheld the Court of Appeal’s decision.
