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Move to recover retired Judge’s ‘commuted pension’ is a violation of his fundamental rights, says SC
View(s):By Ranjith Padmasiri
The Supreme Court (SC) has determined that the fundamental rights of a retired Supreme Court Justice had been violated by the move to recover his ‘commuted pension.’ Accordingly, the court has ruled that all steps, decisions, including Cabinet decisions and Parliamentary Resolutions, to recover ‘commuted pension’ from retired judges of superior courts are void and of no force or avail in law.
In a 2:1 decision, a three-judge bench of the SC gave the ruling after considering a fundamental rights petition filed by retired SC Justice Upaly Abeyrathne. Justice Abeyrathne had challenged the deduction of certain percentages towards the recovery of the lump sum—which is termed ‘commuted pension’—paid to him upon his retirement, arguing that it blatantly violated both the Constitution and his fundamental rights enshrined in it.
A majority of the court had noted that the pension of Judges of the Superior Courts was paid without deduction for nearly 15 years. This had changed following a 2015 Audit Query, and a subsequent decision of the Audit and Management Committee of the Ministry of Public Administration, to recover the commuted pension amounts from the monthly pensions of Judges of the Superior Courts.
Justices S. Thurairaja and Shiran Gooneratne have written separate judgements ruling in favour of the petitioner.
In his ruling, Justice Thurairaja has pointed out that Article 108 (2) of the Constitution prohibits the reduction of salaries and pension entitlements of the Judges of Superior Courts, by overt or covert methods. While such salaries and pension entitlements may be increased as and when appropriate, any reduction or amendment to such entitlements that could potentially cause benefits to be deflated at a future time, can only be done by law approved by a two thirds majority in Parliament as well as by the People at a referendum, he has stressed.
Justice Gooneratne meanwhile, has noted that the Public Administration circulars used to recover the commuted pension from the petitioner cannot be enforced against Judges of the Supreme Court or the Court of Appeal in any manner that results in a reduction of salary or pension entitlement protected by Article 108 (2). Such circulars may, at best, operate only in respect of persons who do not enjoy constitutional protection, and cannot be invoked to defeat or curtail an absolute judicial right guaranteed by an express and unequivocal provision of the Constitution, he has added.
Justice Mahinda Samayawardhena though, has given a dissenting judgement, ruling that there has been no violation of the Constitution.
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