Fiji government must open up constitution process if it wants to achieve truly inclusive democracy, says Minority Rights Group International
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Is it any wonder that many of the innocent and anguished pensioners, who are being so ruthlessly selected for a reduction in income by the Fiji National Provident Fund, no longer trust the Fund? They have lost confidence and trust in the FNPF Board chair, Ajith Kodagoda, and his fellow trustees Tom Rickets, Sashi Singh, Taito Waqa and Tevita Kuruvakadua.
These five must bear the very heavy burden of responsibility for the injustice the FNPF is now imposing on many of its middle and working class members.
The FNPF representative who has attracted most of the anger and despair of the pensioners is chief executive Aisake Taito.
Mr Taito, as the public face and voice of the FNPF, is a catastrophe. His performances at meetings with the FNPF victims were marked by obvious impatience, evasions and arrogance. He contemptuously dismissed or ignored difficult questions and had the hide to remind frightened pensioners that they should not be “personal” about the FNPF’s plans.
Personal? For God’s sake, of course it’s personal when your very own pension fund, that had promised your pension rate was for life, is getting ready to shaft you. The shafting process goes right to the core of an elderly person’s life. In their autumn years their retirement plans, founded on their FNPF irrevocable pensions, are thrown into upheaval.
They face an immediate drop in their standard of living; it is harder for them to put food on the table, pay the bills, meet their medical expenses and their family responsibilities. Those who have obligations to banks and other financial institutions based on their fixed and legally binding lifetime pensions, have been betrayed in a most cruel way.
When a despairing casualty told Mr Taito that he might now lose his home and that the Fund was “ruining our lives” the FNPF CEO appeared unmoved and unimpressed. He showed not a shred of compassion. The complainant was merely told not to make the issue personal. Those in the audience heard this with disbelief. What sort of man was this?
When Mr Taito indicated in a media interview that the FNPF is enforcing its pension cuts from a position of strength, he completed the transformation of the Fund into a callous and pitiless bully.
To the hapless victims the message is clear: ‘We are strong, you are weak. So we will do what we like because we can.’
This FNPF strength Mr Taito refers to must also mean that the fund is quite capable of honouring its contracts with its members if it so wishes.
But it does not wish to. The FNPF was always going to slash the payments of those it had in its sights. Put another way it was ready and willing to default on its obligations. For make no mistake, what we are witnessing here is a default. The FNPF is brazenly failing to meet a financial obligation. No shame, no regrets and hang the consequences.
It has obligations to the pensioners who entered into irrevocable contracts with it. Those contracts could not be changed. Even the FNPF has said this. In a statement earlier this year it emphasised that pensions were paid out monthly for as long as a member lived.
It is instructive and enlightening that, when pension rates were changed previously, current contracts were honoured.
Messrs Kodagoda, Rickets, Singh, Waqa and Kuruvakadua should reflect deeply on this. So should Mr Taito. They should not just reflect. They should examine their consciences.
Mr James Raman, a reputable citizen and former FNPF trustee, states emphatically that during his time the Board made sure that whatever decisions were taken were in compliance with trustee obligations and in accordance with the laws.
He adds: “Furthermore, the question of annuity paid to existing pensioners did not arise as it was a non-issue since pensions were paid under a legally binding contract entered (into) between the FNPF and the pensioner. To do otherwise would have been illegal. The present board should take note of this.”
Messrs Kodagoda, Rickets, Singh, Waqa, Kuruvakadua and Taito have gone into a state of deep and deadly denial on this issue of contracts. It is deadly because of the harm it is doing to their pensioners.
Mr Taito, meanwhile, is asserting that the FNPF is acting within the law because the Solicitor General says so! The CEO appears to be refuting the existence of contracts.
But he has been unable to explain why Shauna Tomkins and Stephen Mason of the Promontory Financial Group, consultants to the fund, acknowledged the FNPF did have contracts with its pensioners. Mr Mason in particular should know about this. He was a special counsel with a major Australian law firm, a member of the Australian Law Reform Commission, and had worked as a parliamentary counsel.
In a report, Promontory makes at least five references to contracts FNPF has with pensioners. It talks of contract law and contracted rate – meaning the rate at which a pension is contracted. Promontory said there would be difficulty under contract law in adjusting current pensions and it assumed they would not be changed. It says sufficient funds should be set aside to ensure future payments at the “contracted rate” were met. Promontory found little support for withdrawing existing pensions, “capping” them or resetting them.
So the FNPF board now has an unavoidable duty to explain why it tossed aside this expert advice from its own consultants.
The answer must surely be that it was dead set on trashing its pensioner contracts come what may. But we need to know why it was so fixated on doing this? From where did this obsession come?
The FNPF has now decided on its unjust and cruel course of action.
But many questions and issues remain. They will not go away now, or in the future. They will haunt the Fund and the current trustees.
If the FNPF is so certain that it does not have contractual obligations, why is it afraid to confront that question in court? Why is it a party to an iniquitous decree that robs its own members of a fundamental legal right? When Mr Taito speaks of acting from a position of strength, is he referring to the savage force of the decree?
Are the FNPF trustees prepared to go down in history as the perpetrators of the Great Contract Smashing? Are they ready to take responsibility for making Fiji into a land of broken contracts?
They know very well that observance of the law of contracts is vital for creating and maintaining commercial, investment and community confidence. The businessmen among them have an especially keen understanding of this.
If the law governing contracts is broken, an economy is damaged and investors shy away. Without investment an economy cannot produce enough jobs.
If the FNPF – Fiji’s largest financial institution – has dumped contracts once, what is there to stop it doing so again? Why should members ever trust the FNPF?
Messrs Kodagoda, Rickets, Singh, Waqa, Kuruvakadua and Taito: Hear this. Our struggle continues against all your power and strength. It will end when we have the justice to which we are entitled.
Decrees like the ones in relation to the Fiji National Provident Fund reform cannot be legally challenged according to the draft constitution however the decrees can be amended or removed altogether by the next parliament.
Questions were raised by FNPF pensioner Rick Rickman in the draft constitution consultation session in Lautoka on why the FNPF decree cannot be challenged.
Rickman said he and other pensioners entered into a legal contract and their pension has been cut under the reform.
Attorney General Aiyaz Sayed-Khaiyum said while the decrees can be reviewed or changed by the next parliament, people should understand that the FNPF reforms were necessary.
Sayed-Khaiyum said FNPF is not in existence to only pay pensions for the current pensioners but it is a long term fund.
He did not say how or at what rate of interest the government is repaying the almost 2.9 BILLION dollars it owes the pension fund.
Brigadier-General Aziz said the Prime Minister had started a new political path for the nation, which was totally different from what the nation had experienced from past governments.
He said after the takeover in 2006, the Bainimarama-led Government had to attend to some sad issues from the past.
Promises, he said, had been made by politicians as a way to win quick votes, but it was rather sad that these votes were never translated into meaningful change.
The RFMF’s chief of staff said another issue which the Government had worked on was land.
“Land is usually a controversial issue and past governments used it as a political tool to gain votes from the landowners.”
However, he said very little was done compared to what’s being done by the current Government.
The Prime Minister had introduced land reforms and with these reforms more land was made available on new favourable terms and conditions.
Land reform is a priority for the development of the resource-based sector which will be mutually beneficial for both the landlords and tenants.
Brigadier-General Aziz says one of the objectives of the reforms now in place is to eradicate abuse and corruption.
The way forward for Fiji, he says, is for the Government to hear people’s concerns and act positively.
Now, he said, past politicians were ganging up and making criticisms against the Government.
“However, they have not ever put forward to members of the public their way forward for the nation.”
He said the RFMF would work with the Prime Minister to see that he retains leadership after the 2014 elections.
He urged members of the public to join the military in supporting the Prime Minister in his bid to lead the nation in 2014.
The new political direction the nation is now experiencing, according to the RFMF’s chief of staff, can only be carried forward by the Prime Minister and his Government
The Charter and accountability of John Samy and Archbishop Mataca
6 April 2013
The reputations of John Samy and Archbishop Mataca have taken a heavy beating from prodemocracy advocates, over the Regime’s use of the Charter in justifying the 2006 coup.
But a November 2011 letter to Commodore Bainimarama suggests that critics (including myself) may have been too harsh in their judgment of Mataca and Samy.
The People’s Charter was formulated under the chairmanship of Commodore Bainimarama and Archbishop Petero Mataca, who presented the final product to the people of Fiji.
The intellectual driving force was John Samy, an internationally respected former ADB functionary, and former Fiji senior civil servant victimized and driven out during the 1987 military coup in Fiji.
The People’s Charter and its “Pillars” of development have for six years been heavily used by the Bainimarama Regime as their primary public justification for their continued hold on government and “constitutional reform”.
While the first clause of the Charter stated that the people of Fiji would abide by and strengthen the 1997 Constitution, it was purportedly abrogated following the 2009 Court of Appeal judgment against Bainimarama.
Mataca and Samy have made no public statement on the Regime’s widespread abuse of all the praiseworthy principles espoused in the Charter or even on the purported abrogation of the 1997 Constitution.
Their silence has been interpreted by critics as a fraud on the hundreds of thousands of Fiji people who were led to support the Charter, believing that the Regime would abide by the 1997 Constitution as clearly stated in the Charter.
But it is now clear that John Samy and Archbishop Mataca did speak out on the Regime’s abuse of the Charter principles, in a 17 November 2011 letter to Bainimarama, not previously made public.
The letter also goes a long way towards redeeming the reputations of these two individuals who clearly held strongly enough to the principles of their Charter to protest in no uncertain terms, when the Regime refused to abide by the principles of the Charter they had themselves helped formulate and approve.
This letter (coming to me via anonymous channels) raises for public debate the very neglected principle of accountability of leaders to the people of Fiji, for their past actions.
The recommendations made by Samy and Archbishop Mataca are still of relevance to the problems that Fiji faces today, and have greater weight coming from previous Regime supporters.
[Wherever the letter mentions "the principles of the Charter", you can equally substitute the "principles of the 1997 Constitution".]
Contents of the Letter
This is a summary of the contents of the letter, using their own words wherever appropriate, and critical statements numbered by me, for emphasis
John Samy and Archbishop Mataca pointed out that in March 2007, the following had been impressed (presumably by John Samy) on Bainimarama, his Cabinet Ministers and the Ministry Council:
1. that the Interim Government (including Fiji’s Military) did not have the legitimacy or the mandate from the people of Fiji to undertake any of the major reforms desperately needed;
2. that the IG’s Roadmap was being imposed on the people of Fiji undemocratically;
3. that it was not clear what the IG was seeking to achieve through the “Clean Up” campaign;
4. that for sustainable democratic governance, the widest possible cross-section of the Fiji public must be meaningfully involved.
It was in this context that the Regime agreed to the National Council for Building a Better Fiji (NCBBF) processes to be led by John Samy, the People’s Charter was formulated, and, eventually “approved by 64% of the adult population of Fiji”.
Samy and Mataca pointed out that they had repeatedly emphasized to the Regime that the purpose of the Peoples Charter was
5. not to replace the Constitution but to strengthen it;
6. to respect and safeguard human rights and fundamental freedoms of individuals and groups, safeguarded by adherence to the rule of law and our respect for human dignity, and
7. to hold responsible and accountable those who hold positions of leadership in communities, organizations, and at the national level.
However, with great disappointment, Mataca and Samy informed Bainimarama that since 2009
8. “a number of actions taken by the IG have signaled that it has drifted away from the spirit and key principles of the Peoples Charter, that it has betrayed the people of Fiji on its most solemn promises”.
The most significant of such disappointing signals was the
9. abrogation of the 1997 Constitution in April 2009
10. the Public Emergency Regulations, originally meant to be temporary but which has been in place for more than two years
11. restrictions on the media
12. restrictions on peoples’ basic freedoms and rights, such as those of free speech and assembly
Samy and Mataca noted
13. “the current environment in Fiji is highly controlled and it has instilled a growing sense of fear amongst the populace… more widely perceived as being repressive”.
Instead of being transparent and accountable in its governance, the IG has
14. “adopted a strong-fisted, unilateralist approach which has been increasingly alienating the very people who could be playing an active role in building broad-based consensus”.
Serious issues of transparency, accountability and overall governance have been emerging, such as
15. a few Cabinet Ministers (especially Bainimarama and the Attorney General) holding multiple portfolios
16. rumors that both were being paid exorbitant salaries, not through the Minister of Finance but a close relative of the AG, through a high-fees based contractual arrangement
17. the militarization of key institutions of the State.
These, Samy and Mataca pointed out, had fuelled the growing perception that
18. “you, your Ministers and the Military Council are now enjoying power and the benefits associated with it so much that you will not relinquish it voluntarily; that power has corrupted you all”.
19. the IG’s handling of the FNPF issues and
20. the imposition of the Essential Industries Decree, without following the due consultation processes, had called into question whose agenda for change the IG is now pursuing, especially as they violate the key principles contained in the People’s Charter.
21. Previous supporters of the IG were “becoming increasingly disillusioned” with a “growing feeling of betrayed by you and the IG”; that instead of practicing transparent and accountable governance, you have adopted the “might-of-the-military” approach to ruling Fiji.
Their Recommendations Continue reading »
Richard Naidu explains in simple language the deficiencies in the proposed Fiji Constitution relating to the Governments intended control of the Judiciary and the dangers it represents:
Click the following link:http://www.youtube.com/watch?v=kv_cLZ9WchQ >
Spare a few minutes to read the full obituary of a hero who set benchmarks in in his life.. Just click the following link:> http://www.telegraph.co.uk/news/obituaries/military-obituaries/special-forces-obituaries/9961915/Fred-Marafono.html?fb
Please, please stop the ridiculous Talk Back TV shows immediately Frank. They do not do you justice and they do nothing to improve the credibility of the AG’s proposed Constitution. In short they are an embarrassment for the country.
Do the right thing Frank, do what any right thinking Prime Minister would do; refer the proposed draft to a Constituent Assembly, made up of independent intellectuals, not political wannabees, or your normal group of bum kissers that stick to you like shit to a blanket.
Let all the people of Fiji have a Constitution that we can be truly proud of.
You have the power to do this Prime Minister, exercise that power for the future of Fiji.