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2025 MarsdenLR 4793
HIGH COURT MALAYA KUALA LUMPUR
AMINAH AHMAD – Appellant
Versus
KERAJAAN MALAYSIA & ANOR – Respondent
[Judicial Review No: WA-25-15-01/2024]
The amendments to the Pension Adjustment Act 1980 were declared null and void as they were less favorable to pensioners, affirming the entitlement to pensions based on the original formula.
Headnote:(A) Pension Adjustment Act 1980 - Sections 3 and 6 - Pensions Adjustment (Amendment) Act 2013 - Sections 3 and 7 - Judicial review for mandamus to adjust pension entitlement amounts and execute payment of pension arrears - Amendments made by the 2013 Amendment Act were found to be less favorable and thus null and void - The Federal Court ruled that the applicant is entitled to receive her pension according to the original formula in ss 3 and 6 of the PAA 1980. (Paras 1, 8, 11, 56)
(B) Mandamus - Criteria for issuance - An order of mandamus is granted when there is a legal duty imposed on an authority and the applicant has a legal right to compel the performance of that duty. (Paras 25, 34)
Facts of the case:
The applicant, a pensioner, sought judicial review against the Government and the Director General for pension adjustments based on the pre-2013 formula after the Federal Court declared the amendments to the PAA 1980 invalid. (Paras 2, 5)
Findings of Court:
The Federal Court declared that the applicant is entitled to pension adjustments according to the original formula in the PAA 1980, and an order of mandamus was granted compelling the Director General to make necessary adjustments. (Paras 11, 56)
Issues: The main issues included whether the amendments to the PAA 1980 contravened the Federal Constitution and whether the applicant was entitled to pension adjustments based on the pre-2013 formula. (Paras 10, 11)
Ratio Decidendi: The court held that the amendments made by the 2013 Amendment Act were less favorable and thus null and void, affirming the applicant's entitlement to pension adjustments under the original provisions of the PAA 1980. (Paras 11, 56)
Result: Judicial review application granted.
| Table of Content |
|---|
| 1. judicial review application (Para 1) |
| 2. pensioner suing for relief (Para 2 , 3 , 4 , 5 , 7) |
| 3. high court's dismissal (Para 6) |
| 4. court of appeal's findings (Para 8 , 9 , 10) |
| 5. federal court's ruling (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56) |
JUDGMENT
The Application
[1] On 29 February 2024, I had granted the applicant leave to commence judicial review proceedings against the Government of Malaysia ("the Government") and the Director General of Public Services ("the Director General") for orders of mandamus which read as follows:
(a) to adjust the pension entitlement amounts in accordance with the formula contained in ss 3 and 6 of the Pension Adjustment Act 1980 ("PAA 1980") prior to its amendment under ss 3 and 7 of the Pensions Adjustment (Amendment) Act 2013 ("the 2013 Amendment Act"); and
(b) within 14 days or such time as this Honourable Court may determine, execute the payment of pension arrears ("the pension arrears") in favour of the applicant in accordance with the formula contained in ss 3 and 6 of the PAA 1980 prior to its amendment under ss 3 and 7 of the 2013 Amendment Act.
The Background
[2] Aminah binti Ahmad is a pensioner. She retired from public service in 2002. In the instant judicial review proceeding, she is suing the Government and the Director General for the abovementioned reliefs in her personal capacity and on behalf of 58 retired members of the public service ("the applicant"). The Director General is the authority empowered under the PAA 1980 to determine the calculation of pension on behalf of the Government.
[3] The pension received by Government employees who had retired from public service is regulated by the Pensions Act 1951 and the PAA 1980. In 2013, the PAA 1980 was amended by ss 3 and 7 of the 2013 Amendment Act. The amendment deleted ss 3 and 6 and the definition of "corresponding last drawn salary" in s 2 of the PAA 1980. Two new sections were introduced, namely, ss 3A and 3B of the PAA 1980 respectively. The above amendments came into effect on 1 January 2013. The direct effect of the amendment resulted in the change in the formula in adjusting the pension of Government employees who had retired prior to 1 January 2013.
[4] Some four years later, on 28 April 2017, the applicant filed an originating summons ("the 2017 Originating Summons") praying in the main for the following declaratory orders:
(i) that ss 3 and 7 of the 2013 Amendment Act are ultra vires art 147 of the Federal Constitution;
(ii) that the deleted ss 3 and 6 of the PAA 1980 be restored accordingly; and a consequential order that adjustments be made retrospectively to the pensions received by the recipients whose pensions had been calculated based on the post 1 January 2013 formula and any shortfall resulting therefrom be paid to the respective recipients accordingly.
[5] The applicant's case, in a nutshell, was that the amendments made by the 2013 Amendment Act were less favourable than the position prior to the amendments made to the PAA 1980. On the restoration of the deleted ss 3 and 6 the applicant sought adjustments of the pension under the pre-2013 formula and be paid to her.
[6] On 9 January 2020, the High Court dismissed the declarations sought by the applicant. In deciding so, the High Court made, inter alia, the following observations and findings:
(a) Section 3 (1) as amended by the 2013 Amendment Act changed the criteria by which pension is adjusted under the PAA 1980. It changed the statutory mechanism for the adjustment of pension from one that is based on the latest revision of an applicable salary scale to an adjustment mechanism that is based on a fixed rate of increment of 2% per annum.
(b) Parliament was aware that the amendments made would change the variable rate of pensi
