Legislators’ pensions: Denying a legitimate expectation

The Parliamentary Pensions Act No.1 of 1977 is applicable to any Sri Lankan citizen who had served in the Legislature since 7 July 1931. The rationale for this legislation was to ensure that participation in the Legislature will not be the prerogative of the affluent

The Government, of course, has the right to decide to terminate the entitlement of a legislator to a pension. Parliament has the right to give effect to that decisionIt is significant that Article 36 of the Constitution, which declares the entitlement of the President to a pension, states quite explicitly that any amendment or repeal of that Article shall not have retrospective operation. Why, then, should legislators be subjected to a different standard?

.  However, sound public policy requires that a law should be prospective, and not retrospective 

In 1976, the late Felix R. Dias Bandaranaike initiated the legislation that would provide a person who had retired after serving in the national Legislature for a minimum period of five years with a pension during his or her lifetime. 

The Parliamentary Pensions Act No.1 of 1977 is applicable to any Sri Lankan citizen who had served in the Legislature since July 7, 1931. A person who has served for the minimum period in the aggregate is entitled to a monthly payment of a pension amounting to one-third of the substantive monthly allowance currently payable to a Member of Parliament, and a maximum of two-thirds of such substantive monthly allowance if he has served for a period of fifteen years as such Member. The rationale for this legislation was to ensure that participation in the Legislature will not be the prerogative of the affluent. 

The Government now proposes to repeal this Act with retrospective effect. The Supreme Court has ruled that the Bill may be passed with a simple majority.

Unfortunately, the original 1977 Act was thereafter amended by successive Governments in 1982 and 1990 to enable the payment of a pension, not only to a retired legislator, but also to a widowed spouse, and thereafter to any surviving children as well. Those amending Acts negated the purpose for which the original Act was enacted in 1977, and perhaps even contributed to the Government’s decision to abolish the right to a pension altogether. 

During the past 50 years, every person who was elected to the national legislature had a legitimate expectation that when he or she ceased to serve in that capacity, having done so for at least five years, that retiree will receive a monthly sum from the parliamentary non-contributory pension scheme.  That is a statutory entitlement which retired legislators now enjoy in common with thousands of others who had similarly served the State in public or judicial capacities. 

In public law, a well-established concept is that of legitimate expectation.  In their dealings with the public agencies, private persons are entitled to rely upon statements or decisions notified to them. That is the legitimate expectation of any citizen.

It may be reasonable to deny a pension to a legislator who has subsequently been elected to the office of President and thereby become entitled to a presidential pension in terms of Article 36 of the Constitution. It may also be reasonable to deny (or perhaps suspend for a specified period) the payment of a pension to a legislator who has subsequently been disqualified from being elected to the legislature under Article 89 of the Constitution by reason of a conviction under the Bribery Act or for a corrupt practice under the law relating to elections, or upon being imposed a sentence of imprisonment for a period in excess of two years following a conviction for a criminal offence.

The Government, of course, has the right to decide to terminate the entitlement of a legislator to a pension. Parliament has the right to give effect to that decision.  However, sound public policy requires that a law should be prospective, and not retrospective.  

The Parliament ought, therefore, to retain the Parliamentary Pensions Act No. 1 of 1977 (but not the 1982 and 1990 amendments) and provide that it shall not apply to any legislator who is elected to such office on or after the date on which the amending Act comes into force. It is significant that Article 36 of the Constitution, which declares the entitlement of the President to a pension, states quite explicitly that any amendment or repeal of that Article shall not have retrospective operation. Why, then, should legislators be subjected to a different standard?