Monday 29 August 2011

Revised law rewards judiciary’s top three, works other judges longer

August 29, 2011
KUALA LUMPUR, Aug 29 — Unlike his predecessors, Tun Zaki Azmi will retire on a full pension when he clocks out for the last time from the Palace of Justice on September 12 despite serving less than three years as Chief Justice, thanks to a recent revision of a remuneration law for the country's judges.

It used to be a minimum of 15 years for judges from the High Court upwards to get their full pensions but few in the courts appear aware of the revisions to the Judges’ Remuneration Act (JRA) 1971, passed in Parliament two months ago, that gave senior judges a shorter time to get pensions while junior judges now have to spend 18 years to get their full pension.

“The whole thing is purposely catered to Zaki,” DAP federal lawmaker Lim Kit Siang told The Malaysian Insider when contacted.The Ipoh Timur MP said the proposal had been debated in the Dewan Rakyat in June but that the costing was not known then.

The new law is effectively immediately. The few lawyers who know the amended law, also known as Act 45, have attacked it as being tailored to reward the outgoing CJ. They added that the changes are discriminatory to judges.

The most significant change involves enabling those holding the judiciary’s top three posts, namely that of the Chief Justice, the President of the Court of Appeal and the Chief Judge of Malaya or Sabah and Sarawak, to be rewarded with a full pension.

A new provision rewarding the country’s top three judges was created under section 9 of the JRA, which reads: “Notwithstanding anything in this Act but subject to section 8, a person holding the office of Chief Justice, President or Chief Judge shall be entitled to maximum pension if he has held either office or all the offices for a period in the aggregate of not less than three years.”

For Zaki, the son of a former Lord President of the Federal Court, Tun Mohamed Azmi Mohamed, this amendment to the law is most opportune.

The former Umno lawyer was directly appointed into the judiciary as a Federal Court judge on September 5, 2007 and fast-tracked to the post of Court of Appeal President on December 11 that same year

Less than a year later, on October 8, 2008 Zaki was elevated to the judiciary’s topmost post as Chief Justice — setting a record for the fastest-rising judge in the country.
Under the new law, full pension now amounts to three-fifths of the top-ranking judge’s last drawn salary, revised upwards from half the amount.

Lim said the opposition pact had raised questions over the motive for the amendment, if it was to benefit “only Zaki”.

However, the veteran politician was silent when asked if there were objections to the second significant amendment, to extend the number of years of service for the other judges from 15 to 18 in order for them to qualify for full pension.

Former Bar Council chief Ragunath Kesavan said the amendment to section 5 of the JRA was even more unfair, contrasted against the acceleration of the judiciary’s top three while other judges saw their years in service added on to qualify for full pension.

“That is obviously unfair to the judges. If you’re a judge, you’re a judge. There should not be a distinction made between them,” he said, adding that few of those currently on the Bench were aware of this piece of news.

The lawyer said that 99 per cent of judges were promoted from the pool of government lawyers in the Attorney-General’s Chambers and spent an average two years as judicial commissioners (JCs) or probation judges before being confirmed.

The other one per cent were experienced lawyers from private practice. None of them had a choice in how long he could serve as a judge as the retirement age is set at 66, Ragunath said.

Veteran lawyer Sankara Nair echoed the Bar chief’s view, noting further that the discriminatory amendments appear to be in conflict with the Federal Constitution, the highest law in the country.

Article 147 of the Constitution, which provides for the protection of pension rights states that: “The law applicable to any pension, gratuity or other like allowance granted to a member of any of the public services, or to his widow, children, dependent or personal representatives, shall be that in force on the relevant day or any later law not less favourable to the person to whom the award is made.”

Sankara feels the government is trying to cut costs with the pension move.
Both Ragunath and Sankara explained that it meant a person who was currently a judge or a JC would be subject to these changes to the JRA, now in effect, despite it not being the terms of their deal when they accepted their appointment.
“This is when the Bar Council must come out and take a stand. The Bar Council must ask for a review. Even the judges must be protected,” Sankara said.
He said the judges have been “emasculated” by the amended law because they are unable to even hear the case if it was challenged in court because of the limits of their job.

Malaysian Bar president Lim Chee Wee has yet to respond to The Malaysian Insider when contacted last week for comment.

“I think the government is trying to cut costs,” Sankara replied to The Malaysian Insider when asked his view of the motive for such amendments.

“The cost of the judiciary is rising because the number of High Court judges has increased,” he said.

Records show that the federal government will incur extra spending of about RM1.854 million a year due to the increase in the number of judges, including those in the newly-formed special anti-corruption courts.

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