Kerajaan Malaysia v MIOR ROSLI BIN MIOR MD JAAFAR (W-01(NCvC)(A)-109-02/2024)

MALAYSIAN ARMED FORCES COUNCIL ... APPELLANTS

BATUMALAI @ PURUSOTHAMAN A/L BATUMALAI (NRIC NO.: 480105045041)

MD RAZI BIN SAAFEE @ SHAFEE (NRIC NO.:680424075607)

MOHD ISHAK BIN NORDIN (NRIC NO.:570512086851) ... RESPONDENTS [In the High Court of Malaya in Kuala Lumpur Originating Summons No.: WA-24NCvC-3989-11/2022

Mior Rosli Bin Mior Md Jaafar (NRIC No.: 560524085937)

Basir Bin Ab. Rahman (NRIC No.: 510220025569)

Anuar Bin Abdul Hamid (NRIC No.: 510226025041)

Yaakob Bin Md Lazid (NRIC No.: 570509026583)

Mohd Nawi Bin Husin (NRIC No.: 590101105825)

Shuib Bin Taib (NRIC No.: 580202025809)

Abdul Halim Bin Long (NRIC No.: 510109025157)

Zamzali Bin Seman (NRIC No.: 650905026083)

Shahawarudin Bin Ismail (NRIC No.: 431013055217)

Batumalai @ Purusothaman A/L Batumalai (NRIC No.: 480105045041)

Arujunan A/L Wairamuthu (NRIC No.: 5210100250890

Sharuddin Bin Ismail (NRIC No.:581122086251)

Ishak Bin Yaccob (NRIC No.: 560901025985)

Zainal Abidin Bin Ahmad (NRIC No.: 590411026065)

Ishak Bin Mohd Lazid (NRIC No.: 540525025583)

Ismail Bin Sulaiman (NRIC No.: 570822035953)

Mohd Shafir Bin Kasim (NRIC No.: 550706025637)

Moganandass A/L Sakarapani (NRIC No.: 580510026299)

Sahadan Bin Omar (NRIC No.: 610511026009)

Abd Razak Bin Saad (NRIC No.: 590523026035)

Md. Yusof Bin Saad (NRIC No.: 601019025691)

Jamaludin Bin Hasan (NRIC No.: 530125025251)

Md Yusop Bin Othman (NRIC No.: 500616075053)

Tahir Bin Jusoh (NRIC No.: 530109025155)

Samsuddin Bin Hamat (NRIC No.: 660321086647)

Aman Shah Bin Mohd Ali (NRIC No.: 610901107285)

Hamzah Bin Husin (NRIC No.: 531110085969)

Ahmad Zahid Bin Mat Som (NRIC No.: 651009086541)

Md Razi Bin Saafee @ Shafee (NRIC No.:680424075607)

Taufek Bin Mohd Radzi (NRIC No.: 650718086435)

Ismail Bin Nazalan (NRIC No.: 620520086635)

Mohamad Bin Idris (NRIC No.: 601117086367)

Salleh Bin Baharom (NRIC No.: 680204085643)

Jaafar Bin Arshad (NRIC No.: 530119025527)

Mohd Aris Bin Saad (NRIC No.: 550830086533)

Omar Shahrim Bin Mohd Khiruddin (NRIC No.: 691024086773)

Taufek Bin Mohamod (NRIC No.: 660802086293)

Shaharum Bin Abdul Hamid (NRIC No.: 600908086721)

Mohamad Zafri Bin Abu Bakar (NRIC No.: 660306086403)

Razalai Bin Tahir (NRIC No.: 630905086547)

Adnan Bin Yahya (NRIC No.: 630102087917)

Kamarudin Bin Osman (NRIC No.: 551021086167)

Zakaria Bin Sedek (NRIC No.: 650801016729)

Loo Woi Chin (NRIC No.: 591016055557)

Abd Jalil Bin Ramli (NRIC No.: 560323086343)

Aminuddin Bin Mohd Hussin (NRIC No.:490101085037)

Amran Bin Ibrahim (NRIC No.: 610426086859)

Mustafa Bin Manas (NRIC No.:580531086397)

Aklasmia Bin Ismail Ali (NRIC No.: 500917085845)

Mohd Ishak Bin Nordin (NRIC No.: 570512086851) ... Plaintiffs

Government of Malaysia

Prime Minister of Malaysia

Senior Minister of Defence

Malaysian Armed Forces Council Defendants] CORAM: HASHIM BIN HAMZAH, JCA WONG KIAN KHEONG, JCA ISMAIL BIN BRAHIM, JCA

In the above appeal (This Appeal), I have been previously given a draft written judgment of my learned brother, Hashim bin Hamzah JCA (Hashim Hamzah JCA's Judgment).

Hashim Hamzah JCA's Judgment has provided the reasons why we have allowed This Appeal with no order as to costs (Our Decision).

I agree with Hashim Hamzah JCA's Judgment and wish to provide an additional ground in support of Our Decision (Supporting Judgment).

A draft copy of this Supporting Judgment (Draft) had been previously forwarded to Hashim Hamzah and Ismail Ibrahim JJCA. Both my learned brothers had agreed with the Draft.

I shall refer to the parties as they were in the High Court.

In this case, the learned Judicial Commissioner had decided that, among others-

all the defendants in this case (Defendants) failed to adjust the pension for all pensioners of the Malaysian Armed Forces (MAF) who had retired before 1.1.2013 [Pensioners (Retirement Before 1.1.2013)] at a rate and manner in which adjustments had been made by the Defendants to MAF pensioners who retired after 1.1.2013 [Pensioners (Retirement After 1.1.2013)]; and

compared to the Pensioners (Retirement After 1.1.2013), the failure of the Defendants as stated in the above sub-paragraph (1) {Defendants' Failure To Adjust Pension [Pensioners (Retirement Before 1.1.2013)]} had discriminated against the Pensioners (Retirement Before 1.1.2013). Consequently, the Defendants' Failure To Adjust Pension [Pensioners (Retirement Before 1.1.2013)] had breached Article 8(1) of the Federal Constitution (FC) against the Pensioners (Retirement Before 1.1.2013).

This Supporting Judgment will discuss whether the Defendants' Failure To Adjust Pension [Pensioners (Retirement Before 1.1.2013)] constituted a contravention of the equality provision in Article 8(1) FC. C. Scope of Article 8(1) FC

Article 8(1) FC provides as follows: "Equality Article 8(1) All persons are equal before the law and entitled to the equal protection of the law." (emphasis added).

The nature and application of the equality provision in Article 8(1) FC has been explained by our Federal Court and summarised in the following judgment of the Court of Appeal in Mohd Azizul bin Abd Wahab v Tan Sri Dato' Seri Abdul Hamid bin Bador & Ors [2025] MLJU 965, at [34] to [39]: [34] In the Federal Court case of Khong Teng Khen, at p. 170, Suffian LP delivered the following 2-1 majority judgment: "Article 8 guarantees to all persons equality before the law and its equal protection. Regulations 6,7,13,19, 20 and 21 prescribe rules of procedure and evidence different from those applicable under the Criminal Procedure Code and the [Evidence Act 1950] and to that extent they are discriminatory, but as between all persons charged with security offences within the meaning of regulation 2(1) they are not discriminatory and do not therefore offend against Article 8. It would have been different if the regulations provide that some persons charged with security offences are to be subject to one set of rules and others charged with similar offences to another set of rules. The principle underlying Article 8 is that a law must operate alike on all persons under like circumstances, not simply that it must operate alike on all persons in any circumstance, nor that it "must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons ... for the purpose of legislation", Kedar Nath v State of West Bengal AIR 1953 SC 404 406. In my opinion, the law may classify persons into children, juveniles and adults, and provide different criteria for determining their criminal liability or the mode of trying them or punishing them if found guilty; the law may classify persons into women and men, or into wives and husbands, and provide different rights and liabilities attaching to the status of each class; the law may classify offences into different categories and provide that some offences be triable in a Magistrate's court, others in a Sessions Court, and yet others in the High Court; the law may provide that certain offences be triable even in a military court; fiscal law may divide a town into different areas and provide that ratepayers in one area pay a higher or lower rate than those of another area, and in the case of income tax provide that millionaires pay more tax than others; and yet in my judgment in none of these cases can the law be said to violate Article 8. All that Article 8 guarantees is that a person in one class should be treated the same as another person in the same class, so that a juvenile must be tried like another juvenile, a ratepayer in one area should pay the same rate as paid by another ratepayer in the same area, and a millionaire the same income tax as another millionaire, and so on." (emphasis added). The above judgment by Suffian LP was concurred by Wan Sulaiman FCJ, at p.176. Ong Hock Sim FJ dissented in Khong Teng Khen, at p.171 to 176, but did not decide with regard to Article 8(1) FC. [35] Khong Teng Khen had been applied by the Federal Court in Datuk Haji Harun bin Idris v Public Prosecutor [1977] 2 MLJ 155. Suffian LP delivered the following judgment in Datuk Haji Harun bin Idris, at p.165 to 166: "6. In India the first question they ask is, is there classification? If there is and subject to other conditions, they uphold the law. If there is no classification, they strike it down. With respect we would agree with the Solicitor-General's submission that the first question we should ask is, is the law discriminatory, and that the answer should then be - if the law is not discriminatory, if for instance it obviously applies to everybody, it is good law, but if it is discriminatory, then because the prohibition of unequal treatment is not absolute but is either expressly allowed by the constitution or is allowed by judicial interpretation we have to ask the further question, is it allowed? If it is, the law is good, and if it is not, the law is void. is based on "reasonable" or "permissible" classification, using the words used in the passage reproduced above from the judgment in Shri Ram Krishna Dalmia AIR 1958 SC 538, provided that

the classification is founded on an intelligible differentia which distinguishes persons that are grouped together from others left out of the group; and

(ii) the differentia has a rational relation to the objects ought to be achieved by the law in question. The classification may be founded on different bases such as geographical, or according to objects or occupations and the like. What is necessary is that there must be a nexus between the basis of classification and the object of the law in question. The Solicitor-General submits that if the Indian doctrine of classification is to be accepted by our courts, which he argues has not been done, it may be accepted subject to the modification that the courts should not take it upon itself to consider whether the classification is reasonable or not, a task which should be left to the legislature. In our opinion the doctrine of classification should be accepted by our courts, subject to what we said in paragraph 6 above. We adhere to what was said in Public Prosecutor v Khong Teng Khen ... As regards the narrower question whether or not the courts should leave it to the legislature alone to go into the reasonableness of the classification, we think that the court should not, that in other words the court should consider the reasonableness of the classification." (emphasis added). The test laid down in Datuk Haji Harun bin Idris is known as the "Reasonable Classification Test". Premised on the Reasonable Classification Test, if an Impugned Matter provides for different classes and different treatment for different classes, the Impugned Matter is not discriminatory and does not therefore infringe Article 8(1) FC if the following three conditions are fulfilled cumulatively:

the Impugned Matter provides for the same treatment for all persons in the same class $ [1^{\mathrm{st}} $ Condition (Reasonable Classification Test)];

there is an "intelligible differentia" (reasonable, rational or logical basis) for the provision of different classes and different treatment of different classes by the Impugned Matter, namely, there is a reasonable classification basis $ [ 2^{n d} $ Condition (Reasonable Classification Test)]; and

there exists a nexus between the reasonable classification basis and the object of the Impugned Matter $ [ 3^{rd} $ Condition (Reasonable Classification Test)]. [36] It is to be noted that when Khong Teng Khen and Datuk Haji Harun bin Idris were decided, our Parliament had abolished appeals to the Privy Council on constitutional and criminal matters. In other words, the Federal Court which decided Khong Teng Khen and Datuk Haji Harun bin Idris was our apex court then. [37] The Reasonable Classification Test has been applied by our highest court in the following cases (in chronological order):

in the Supreme Court case of Malaysian Bar & Anor v Government of Malaysia [1987] 2 MLJ 165, both the 2-1 majority judgment (delivered by Mohd. Azmi SCJ, at p.170) and dissenting judgment (by Salleh Abas LP, at p.167 and 168), had applied the Reasonable Classification Test;

the following judgments in the Federal Court case of Abdul Ghani bin Ali @ Ahmad & Ors v Public Prosecutor [2001] 3 MLJ 561 -

the decision of Abdul Malek Ahmad FCJ (as he then was), at p. 579 to 581; and

Ahmad Fairuz FCJ's (as he then was) judgment, at p. 594 to 596; and

the judgment of the Federal Court delivered by Augustine Paul JCA (as he then was) in Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd [2004] 2 MLJ 257, at [35] to [40] and [47] to [50]. [38] In the Federal Court case of Alma Nudo Atenza v Public Prosecutor and another appeal [2019] 4 MLJ 1, Richard Malanjum CJ had added the condition of "proportionality" (Proportionality Condition) in deciding whether an Impugned Matter has complied with Article 8(1) FC. According to Alma Nudo Atenza, at [142] to [145] and [150] - [142] Next to consider is whether the incursion into the presumption of innocence under art 5(1) satisfies the requirement of proportionality housed under art 8(1). [143] The first stage in the proportionality assessment is to establish whether there is a sufficiently important objective to justify the infringement of the right, in this case the right to presumption of innocence. The legislative objective in inserting s 37A is to overcome the problem of the prosecution failing to prove the element of trafficking as defined in the DDA. Drug trafficking has been a major problem in the country. It needs to be curbed. One way is to secure convictions of drug traffickers which can be considered a sufficiently important objective and one which is substantial and pressing. [144] The second stage of the inquiry is to consider whether the means designed by Parliament has a rational nexus with the objective it is intended to meet. The effect of s 37A, as elaborated above, is to shift the burden of proof to an accused on the main elements of possession, knowledge, and trafficking, provided that the prosecution establishes first the relevant basic facts. It is at least arguable that the resulting ease of securing convictions is rationally connected to the aim of curbing the vice of drug trafficking. Bearing in mind that the validity of individual presumptions are not in issue in the present appeals, it is not necessary for us to analyse the rational connection between custody and control on one hand and possession and knowledge on another, or the connection between possession and trafficking (see R v Oakes at para 78). [145] The third stage of the inquiry requires an assessment of proportionality. It must be emphasised any restriction of fundamental rights does not only require a legitimate objective, but must be proportionate to the importance of the right at stake. [150] Based on the factors above - the essential ingredients of the offence, the imposition of a legal burden, the standard of proof required in rebuttal, and the cumulative effect of the two presumptions - we consider that s 37A constitutes a most substantial departure from the general rule, which cannot be justified and disproportionate to the legislative objective it serves. It is far from clear that the objective cannot be achieved through other means less damaging to the accused's fundamental right under art 5. In light of the seriousness of the offence and the punishment it entails, we find that the unacceptably severe incursion into the right of the accused under art 5(1) is disproportionate to the aim of curbing crime, hence fails to satisfy the requirement of proportionality housed under art 8(1)." (emphasis added). [39] The Proportionality Condition had been adopted by Tengku Maimun CJ in the Federal Court in Ketheeswaran a/l Kanagaratnam & Anor v Public Prosecutor [2024] 1 MLJ 851, at [130] to [133], as follows: [130] The jurisprudence of art 8(1) is beyond settled. In order to achieve equality in the truest sense of art 8, decided cases have held that discrimination is allowed except in certain cases. In relation to art 8(2), discrimination only on the grounds stated in that article is prohibited against citizens unless expressly authorised by the FC. However, if an argument is made in respect of art 8(1), then the following must be shown. [131] Firstly, there must be an intelligible differentia between the categories of persons (or classes of persons) that are classified within a certain group against persons (or classes of persons) who can be clearly classified outside of that group. In other words, the discrimination must be intelligible and clear - not arbitrary or wanton. The first element of art 8(1) looks for a clear distinction between who is discriminated. This assessment ensures that the discrimination is not done arbitrarily. [132] The second element of art 8(1) which is usually the one at issue in most cases, looks at the basis of discrimination. Here, it must be established that the differentiation in the first element was enacted in furtherance of a legitimate legislative aim and that there is a reasonable nexus between the discrimination and that legislative aim. If there is no objective and justifiable reason for the discrimination, then in such a circumstance, the measure will have violated art 8(1). [133] In relation to the second element, more recent cases decided in the past few decades such as Alma Nudo, also emphasise the importance of proportionality in the assessment of the measure. In other words, even if the legislative measure which is discriminatory was pursued for a legitimate aim, the measure may still be violative of art 8(1) if the extent of the measure taken is disproportionate to the legitimate legislative aim it seeks to achieve." (emphasis added).

Premised on the above Federal Court cases, whether an executive policy, action or decision (Executive Policy/Action/Decision) has breached Article 8(1) FC depends on a determination of the following issues:

whether the Executive Policy/Action/Decision had provided for the same treatment for all persons in a particular class;

if the answer to the question in the above sub-paragraph (1) is in the affirmative, the Executive Policy/Action/Decision has not discriminated against any person and there is therefore no contravention of the equality provision in Article 8(1) FC by the Executive Policy/Action/Decision;

if the answer to the issue in the above sub-paragraph (1) is "no and the Executive Policy/Action/Decision had discriminated against a particular person or group of persons (X) with regard to all other persons (Y) in the same class as X, the following questions arise-

is there is an "intelligible differentia" (reasonable, rational or logical basis) for the provision of different treatment of X and Y by the Executive Policy/Action/Decision? If the answer to this question is in the affirmative, there is a reasonable classification of X and Y by the Executive Policy/Action/Decision (Reasonable Classification);

whether there exists a nexus between the Reasonable Classification and the object of the Executive Policy/Action/Decision [Object (Executive Policy/Action/Decision)]; and

is the Reasonable Classification proportionate to the Object (Executive Policy/Action/Decision)?;

if the answers to all the three issues in the above subparagraphs (3)(a) to (c) are "yes", the Executive Policy/Action/Decision did not violate the equality provision in Article 8(1) FC; and

if any one or more of the three questions in the above subparagraphs (3)(a) to (c) is/are answered in the negative, the Executive Policy/Action/Decision had breached the equality provision in Article 8(1) FC. D. Did the Defendants' Failure To Adjust Pension [Pensioners (Retirement Before 1.1.2013)] breach Article 8(1) FC?

Firstly, as explained in Hashim Hamzah JCA's Judgment, there was no Defendants' Failure To Adjust Pension [Pensioners (Retirement Before 1.1.2013)]. On this ground alone, This Appeal should be allowed.

Secondly, even if the Defendants' Failure To Adjust Pension [Pensioners (Retirement Before 1.1.2013)] exists, I am of the respectful view that the Defendants' Failure To Adjust Pension [Pensioners (Retirement Before 1.1.2013)] has not breached the equality provision in Article 8(1) FC. My reasons are as follows:

there is a Reasonable Classification by the Defendants to explain the different treatment of -

the Pensioners (Retirement Before 1.1.2013); and

the Pensioners (Retirement After 1.1.2013). The "intelligible differentia" between the above two categories of MAF pensioners is due to the application of "Garis Panduan Pelaksanaan Pindaan Syarat-Syarat Perkhidmatan Angkatan Tentera Malaysia" dated 17.1.2013 (GP) and "Surat Pelaksanaan Kesetaraan Pangkat dan Penambahbaikan Jadual Gaji Minimum Maksimum (JGMM) Bagi Perkhidmatan Angkatan Tentera Malaysia Di Bawah Sistem Saraan Malaysia" dated 14.3.2013 (JGMM). It is clear from Hashim Hamzah JCA's Judgment that GP and JGMM do not constitute a salary revision but were instead an amendment to the terms of service of serving members of the MAF [which can only apply to the Pensioners (Retirement After 1.1.2013) and not to the Pensioners (Retirement Before 1.1.2013)]. Hence, the existence of Reasonable Classification with regard to the Pensioners (Retirement Before 1.1.2013) and Pensioners (Retirement After 1.1.2013);

the object of GP and JGMM was to "equalise" (menyetarakan) and enhance (menambah baik) the salary scales of serving MAF members with members of the Public Services [Object (GP/JGMM)]. The Object (GP/JGMM) was not to discriminate the Pensioners (Retirement Before 1.1.2013) in favour of Pensioners (Retirement After 1.1.2013). In my view, there exists a nexus between the Reasonable Classification and the Object (GP/JGMM); and

the Reasonable Classification is certainly not disproportionate to the Object (GP/JGMM). DATE: 4 JUNE 2025 WONG KIAN KHEONG Judge Court of Appeal For the Appellants: Encik Ahmad Hanir bin Hambaly @ Arwi (Senior Federal Counsel) & Ms. Kogilambigai Muthusamy (Federal Counsel) (Attorney General's Chambers) For the Respondents: Encik Mohamed Haniff bin Khatri Abdulla & Puan Nurul Huda bt. Razali (Messrs Haniff Khatri)