Retrospective Pension for Chief Justice Zaki (?)

A critical examination of the recent Judges Remuneration (Amendment) Act 2011.

The Judges Remuneration (Amendment) Act 2011 was passed by Parliament at a recent sitting without any fanfare or publicity.  One even wonders whether a debate occurred when the Amendment Bill was presented.  The Amendment Act came into force on 18^th August 2011.

Two features of the Amendment Act are particularly offensive: first, the increase from 15 to 18 years service for a judge of the High Court, Court of Appeal and the Federal Court to qualify for maximum pension; second, the reduction from 10 to 3 years service for the entitlement of the Chief Justice to maximum pension.

The Amendment Act seeks to amend the parent act, the Judges Remuneration Act 1971 (“the 1971 Act”), which has been in force since September 1971.  Section 5 of the 1971 Act provides that the period of service for maximum pension shall be 15 years service as a judge.  Thus, all judges appointed to the Bench since September 1971 have enjoyed this right.  Indeed, all judges serving in our superior courts have been appointed after the 1971 Act came into effect, thereby serving under the regime of a 15-year period for maximum pension.  Apart from being wholly unfair to a judge who could have achieved maximum pension if it had been 15 years, as was the position when he became a judge, but who cannot do so now because he would not be able to serve the new minimum period of 18 years on the Bench, this provision is unconstitutional.

Article 147 of the Federal Constitution protects pension rights payable to a member of the public services.  Judges being part of the Judicial and Legal Services are members of the public services.  Article 147(1) states that the law applicable to any pension shall be that in force on a “relevant date” that is “not less favourable to the person to whom” pension is payable.  In cases after Merdeka, the date on which a judge first became a member of the Judicial and Legal Services is the relevant date.  Hence, for most judges currently serving on the Bench, the relevant pension law is Section 5 of the 1971 Act which provides for 15 years service.  Because the Amendment Act purports to increase such period to 18 years, it is “less favourable” to the judges.  Article 147 was given constitutional status to ensure that pension rights accruing to or vested in any member of a public service at the time he joins the public service cannot, to his detriment, be amended by statute.  Thus, Parliament can only enhance or improve pension rights; it cannot pass any law that would prejudice or jeopardise pension rights.  In consequence, Section 3 of the Amendment Act in purporting to increase the period of service in order to achieve maximum pension is unconstitutional by virtue of Article 4(1) of the Federal Constitution because it is inconsistent with Article 147(1).  How the Attorney General and the Parliamentary Draftsman could have missed this elementary point is baffling!

As to the second issue, Section 9 of the 1971 Act has a special provision for the 4 office-holders as the heads of the 4 Courts in the Malaysian Judiciary:-

(i)      Chief Justice of the Federal Court (the head of Judiciary);

(ii)      President of the Court of Appeal;

(iii)     Chief Judge of the High Court of Malaya; and

(iv)     Chief Judge of the High Court of Sabah and Sarawak.

Each of the heads need only serve 10 years as Judges pursuant to Section 9 of the 1971 Act in order to qualify for the maximum pension, of which at least 3 years must be as head of one of the 4 Courts.  Section 5 of the Amendment Act removes the 10-year requirement.  Hence, in order to receive maximum pension, a judge need only serve as Head of one of the 4 Courts for 3 years.  Because all the incumbents of the other 3 courts have more than 10 years service in the Judiciary, this amendment is only for the benefit of Chief Justice Zaki, who does not have the necessary 10 years imposed by Section 9(b) of the 1971 Act.

Both of these provisions in the Amendment Act have retrospective effect, taking effect on 1^st January 2009, rather than on the date the Amendment Act came into force (18^th August 2011).  Why 1^st January 2009 was chosen, perhaps someone can enlighten us.

Seldom has an Act of Parliament been enacted for the benefit of one person.  Surely Chief Justice Zaki knew about the 10-year requirement when he decided a few years ago to accept the offer to leave the Bar for the Bench.  His was a free and voluntary decision, made with eyes open.  He had a lucrative practice in the Bar as a senior partner in a well-established and renowned law firm in Kuala Lumpur.  He was also director of Petronas, S P Setia Bhd and other companies.  Accordingly, Chief Justice Zaki was not wanting in financial means before he decided to do national service.  One cannot imagine that Chief Justice Zaki is aware that he is going to be sole beneficiary under the Amendment Act.  In order to demonstrate that this amendment is not self-serving and not solely for his own benefit, Chief Justice Zaki must do the honourable thing: announce publicly that he will not accept the maximum or any pension payable to him under the Amendment Act.