Pension adjustments for judges are protected under Articles 125(7) and 125(9) of the Federal Constitution, making the Judges' Remuneration (Amendment) Act 2014 void for inconsistency.

JUDGMENT

(Enclosure 1)

Leonard David Shim J:

Introduction

[1] This is an action by the Plaintiff for, inter alia, a declaration that the Defendants have violated and continued to violate art 125(7) read with art 125(9) of the Federal Constitution when they failed to pay the monthly pension to the Plaintiff in accordance with the formula of "1/360 x 201 months x current salary of a Judge but not more than 3/5 of that salary" and a declaration that the "Judges' Remuneration (Amendment) Act 2014 (Act A1462) is void for being inconsistent with art 125(7) read with art 125(9) of the Federal Constitution".

[2] The main ground relied upon by the Plaintiff is that the Judges' Remuneration (Amendment) Act 2014(Act A1462) is void for being inconsistent with art 125(7) (read with art 125(9) of the Federal Constitution.

Undisputed Facts

[3] The Plaintiff Ian Chin Hon Chong is suing on his own behalf.

[4] He also suing on behalf of all the retired judges of the High Court of Sabah & Sarawak who were appointed Judges before 1 July 2015 and receiving their pensions and on behalf of all persons who are receiving their derivative pensions under the Judges' Remuneration Act 1971 (Act 45) and who are not otherwise parties in any similar action in the High Court in Malaya.

[5] The Plaintiff Ian Chin Hon Chong (hereinafter referred to as "the Plaintiff") was appointed a judicial commissioner on 1 March 1992 and a judge of the High Court on 20 August 1993. He retired on 1 December 2008 after serving 201 months (that is 16 years and 9 months) entitling him to a full pension under the then existing law.

[6] (i) By 1 June 2012 the Plaintiff's pension was under the then existing law computed at the rate of "1/360 of his last drawn salary in respect of each completed month's service as a Judge: Provided that in no case shall the pension so computed be more than 3/5 of his last drawn salary but without prejudice, however, to any adjustment of pension to his advantage that may be in accordance with Part IMA" (the old formula).

(ii) The then existing Part IIIA, s 15B(1) provides for an adjustment upward based on the "corresponding last drawn salary".

(iii) The term "corresponding last drawn salary" is defined to mean "in the case of a Judge to whom any of the current salaries does not apply by virtue of his having retired or died prior to the implementation and had the appropriate current salary been applied to his case;" [See s 1A, Judges' Remuneration Act 1971 (Act 45)].

[7] The Plaintiff's pension had hitherto 1 July 2015 always been computed in the manner described in para 6 based on the upward changing salary scale of serving judges. The old s 15B of Act 45 provides as follows:

"15B. (1) Subject to Part III and this Part, pensions and other benefits granted to Judges and their dependants under that Part before or on the implementation of any current salary shall be adjusted in accordance with this Act and shall be paid or be payable with effect from the date of implementation of the current salary.

(2) The pension of a Judge granted under Part III shall be adjusted as provided in the Third Schedule.

(3) Any derivative pension granted under Part III shall be adjusted as provided in the Fourth Schedule.

(4) Any disability pension or dependant's pension granted under Part III shall be adjusted based on the Judge's corresponding last drawn salary but the factor applicable shall be the factor under that Part.

(5) In the event of any doubt in the determination of the corresponding last drawn salary of:

(a) a Judge of a High Court;

(b) a Judge of the Federal Court or of the Court of Appeal or a President or a Chief Judge; or

(c) a Chief Justice, the corresponding last drawn salary in each case shall be determined respectively by:

(i) the Chief Judge of the High Court concerned;

(ii) the Chief Justice; or

(iii) the Yang di-Pertuan Agong."

The old Third Schedule and Fourth Schedule of Act 45 provides:

The new s 15B of Act 45 provides:

"15B. (1) Subject to Part III and this Part, pen