On 23rd of January 2025, we attended a talk organised by BAC Education and the Inns of Court Malaysia. We had a delightful opportunity to listen to The Hon. Justice Datuk Vazeer Alam Mydin Meera on the topic of “The Evolving Role of Judges In Shaping Legal Precedents and Public Policy”. Given how insightful the talk was, we think it is worth to discuss how Legal Precedents had shaped Public Policy in Malaysia. Justice Datuk Vazeer Alam had mentioned that, in deciding a case, Judges must navigate depending on the legal context and political climate.
Public Policy is a principle of law that holds that no subject can lawfully act in a manner that is injurious to the public, or against the public good. In Malaysia, the supreme law is the Federal Constitution, which serves as the legal framework for all laws in Malaysia, allowing the court to review and overturn a law on the basis of its inconsistency with the Federal Constitution.
We had frequently acquainted ourselves with cases involving fundamental liberties particularly, under Article 5 to Article 13 of the Federal Constitution. However, we would like to bring readers’ attention to the issue associated with Article 147 of the Federal Constitution which protects pensions, gratuities, and other allowances for public servants, their families and personal representatives, as one of the examples cited by Justice Datuk Vazeer Alam in illustrating the importance of upholding the principle of Public Policy.
In Malaysia, The Pensions Adjustment Act 1980 (Act 238) provides, among others, for the adjustment of pensions and other benefits of officers in the public service and in statutory and local authorities and of the dependants of such officers, for the granting and adjustment of pensions and other benefits of the dependants of certain categories of such officers, and for matters related thereto [1]. Thereafter, the Pensions Adjustment (Amendment) Act 2013 (2013 Amendment Act) came into force. Under the old scheme, the amount of pensions receivable by a pensioner correspondingly increased whenever there was a salary revision for a public officer, provided the pensioner and public officer were of the same grade, whereas under the new scheme, any salary revision in the prevailing salary scheme applicable to public officers in service would be of no consequence to the pensioners, even though they may be of the same grade [2]. Undoubtedly, the new scheme is less favorable to the pensioners.
Be that as it may, the Federal Court case of The Government of Malaysia & Anor v. Aminah Ahmad (Suing In Her Personal Capacity And On Behalf Of 56 Retired Members Of The Public Service [2023] 5 MLRA 498) had ruled that the 2013 Amendment Act had contravened Article 147 of the Federal Constitution leading to the restoration of original pensioned amount which was the old scheme. It was stated by the learned Judges that Article 147 of the Federal Constitution requires that the “later law” must not be “less favorable”.
To summarise, the courts play a vital role to ensure that a law enacted does not offend public needs while maintaining fairness to all when there is an intersection between Law and Public Policy.
[1] Act 238
[2] [2023] 5 MLRA 498
Disclaimer: This article is for informational purposes only and does not constitute any legal advice. If you have any questions or require further information on this matter, please do not hesitate to contact us directly.