The illegal Military Regime has announced that they will make a Budget statement on their plans to reduce FNPF pensions.

Will there be yet another Military Decree purporting to revise the FNPF Act in order to reduce pensions, and stop legal challenges, such as the current Burness/Shameem case, supposed to be heard in February 2012?

The Coconut Wireless is hinting that the Regime/FNPF has devised a scheme which will give existing pensioners a “Hobson’s choice” or the “Morton’s Fork” between two options, both of which will mean that their current contracts with FNPF will be trashed.

Pensioners have no idea what will be thrust down their throats on Friday (for sure, no one will be singing “Thank God It’s Friday”), and some are now reduced to begging this Regime for “permission” to discuss their just grievances in the media.

While FNPF pensioners wait for that Friday drama, they might want clear their cobwebs on the following five statements (especially Statement 3) that the Military Censors will not allow in the Fiji media:

1. Existing FNPF pensions cannot be legally reduced under the FNPF Act and the laws on contracts.

2. The FNPF Act does not allow FNPF to vary the pension rates differentially for allegedly high and low income pensioners.

3. FNPF’s Buffer Fund does have the financial capacity to pay existing pensions at their current rates for another 18 years, if the Buffer Fund is properly credited with interest payments from 1975 to the present, AND if the provisions of the FNPF Act had been strictly followed by successive Boards.

4. Successive Fiji governments, including the current illegal Military Regime, have been directly and solely responsible for whatever mess exists at FNPF today, and should be responsible in the unlikely event that there are short-falls in FNPF cash-flows.

5. The only proper way to change the FNPF Act is for an Independent Expert Commission of Inquiry into FNPF to make recommendations which should only be considered by a future elected Government.

These statements would all be elaborated in the Burness case, if it ever sees the light of day.

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Essential background

The Fiji National Provident Fund is not a “government owned public enterprise” to be used for the benefit of the government, the Fiji public or tax-payers in general. It belongs only to the workers whose contributions have funded it, although their interests coincide often with those f the Fiji public.

Historically, however, FNPF has been totally controlled by successive governments, from its inception till today, both through legislation and actual operation.

The FNPF was originally intended to be a compulsory savings scheme for workers, with all the savings and interest thereon to be returned to the worker as a lump sum on retirement (read the Legislative Council debates in 1968).

The system was then lawfully changed by Parliament in 1975 to introduce a pension annuity option, which was set at the high rate of 25% for single pensions, to encourage retirees to take the pension rather than the lump sum.

Despite that high rate of pension, the pension uptake was way less than 15% and even till now, less than 35%.

When the uptake proportion did begin to rise (late 80s and early 90s), an ILO study (1993) advised that the annuity rate should be brought down gradually to 10%.

But the 1998 Parliament decided to bring the pension rate down to 15%, gradually over ten years.

Even if actuarially unwise, this was a lawful decision made by Parliament, thereby legally under-writing the contracts which all pensioners have entered into.

To break these contracts is to make a mockery of justice, law and order, constitutionality, and the sacred powers and responsibilities of a lawfully elected Parliament, and the people it represents.

But first, why has the ILO projection that in the long term some 35% of retirees would take the pension, never been reached?

The FNPF’s pension gamble: the “risk of dying early”

While actuaries and “smart rich people” have concluded that the annuities between 15% to 25% have been excellent value, the historical reality has been that the majority of retirees (more than 70%) have not been taking up the “excellent” pension offers.

Yes, excellent returns, but you could also die early, and lose all.
 

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This is a tough choice even for educated people, and even at the current allegedly high 15% pension rate.

The low uptake of pensions indicates that Fiji’s people are risk averse, they are afraid of dying early, and they want money in the hand now, and not down the line.

I suspect that many of the retirees who took the pension option would be financially well-off and able to handle the risk of dying early.

Reality check: while some pensioners have found the annuity rates excellent value (which FNPF harps on about ad nauseam), other retirees have died before they “recovered their life savings” and their families have lost out permanently: there has been no comment from FNPF on these retirees who have lost their savings.

All pensioners have already taken this “gamble” offered by FNPF to them.

Current developments

The recent Promontory Report, based on the actuarial study by Mercer, and in the light of the recent poor investment and income record of FNPF, recommended the further reduction of the single pension rate to 9%, but only for future pensions (not existing pensions).

This Promontory Report has been very selectively used by the FNPF Board and Management to justify their planned reductions of all pensions.

Initially, FNPF Management stated that all annuity rates (existing and future) would be reduced to around 9%.

Then they backtracked to some nebulous proposal that they would reduce the existing pensions only of those above some “poverty line” (to be decided by themselves). I suspect they have been given sensible legal advice that the FNPF Act does not allow this differential treatment (as I explain below).

Coconut Wireless now suggests they have dreamed up another “scheme” to give the illusion of “choice” to existing pensioners. Wait for the 2012 Budget on Friday 25 November 2011, to reveal all.

Bottom line: pensioners must not forget that existing contracts of pensioners are legally valid and cannot be forcibly changed, by offering alleged “choices” to pensioners.

FNPF offered legal contracts to pensioners, approved by Fiji Parliament

The undisputed facts are:

(a) The current pensions were all freely offered by FNPF whose Boards have always been totally controlled by Government: all FNPF Board members have been appointed by Government

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(while Employers’ Associations and unions may nominate representatives, the final choice and appointments are made by the Minister); and the Chairman of the Board has always been appointed by Government.

(b) All decisions on annuity rates have been made by the elected Parliament: the FNPF Board can only make recommendations, not decisions.

FNPF initially thought that under Section 63 of the FNPF Act (which states that the FNPF Board may “prescribe the amount, frequency of payment and duration of any annuity payable under the provisions of paragraph (b) of section 64” as may be”) gives the Board authority to reduce existing pensions. This was a completely wrong interpretation, as that section simply refers to Section 64 (b) which gives powers only over the method of dispensing the annuity already decided upon by parliament, as a percentage of whatever balance the pensioner leaves with the Fund.

Once that percentage has been fixed (and the OP-9 form specifies both the percentage and the corresponding dollar amount), the amount of the total annual annuity in dollars and cents cannot be changed- as that would be changing the percentage of the final balance being given to the pensioner in a legal contract on the OP-9 form.

Nowhere in the signed contract (the 9-OP form) is there any clause which warns the pensioners that their pension rate may be changed in the future by the FNPF Board at its discretion.

Any attempt by the FNPF Board to therefore vary the annuity rate, already offered by FNPF to and accepted and signed by pensioners, would be totally contrary to the FNPF Act and in breach of the laws on contracts.

FNPF is a legal entity and able to enter into contracts.

Article 4 of the FNPF Act states that the FNPF Board shall be a body corporate and shall, by the name of “The Fiji National Provident Fund Board”, have perpetual succession and a common seal …. The Board may sue and be sued in its corporate name and may enter into contracts.

The legal corporate body (FNPF) made a clear offer (on Form 9-OP) to the retirees that should they choose the pension option (whether single, joint or combination) and leave all of some of their savings with the FNPF, they would receive in return an annuity (expressed explicitly in dollars and as a fixed percentage of their final balance) until they (or their nominated partner) died.

Legally, the FNPF Board may be sued if they break these contracts. The Military Regime’s FNPF Decree will no doubt ensure that the FNPF Board Members cannot be sued in Fiji.

It is a sad indictment of their character that none of the Board Members, who are all well-known public figures, have had the decency to reply to Ross McDonald’s pointed questions and suggestion that they behave honorably and resign from the FNPF Board, instead of being party to illegal and unjust decisions.

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Pensioners might want to investigate if Board Members can be sued in their individual capacity in Fiji, or abroad for those with foreign residencies and citizenships.

Promontory advised that existing pensions cannot be altered under contract law

The Promontory Report stated (paragraph 25):

“There have been some suggestions that existing pensions should be

withdrawn, capped or reset at a discount. … Any retrospective adjustment of

existing pension benefits would be difficult under contract law…… While an

adjustment to existing pensions remains a possibility (huh?), it is not further

considered in this paper”.

Promontory based the rest of their analysis and recommendations on FNPF not breaking its contracts with existing pensioners.

It would be totally scandalous and a sad indictment of the ethical character of international consulting companies like Promontory, if they even hinted to the FNPF Board behind the scenes, that they could break contracts with pensioners through illegal Military Decrees.

In their Report, Promontory Report clearly separated the problem of funding existing pensioners, from the problem of funding future pensioners, whose annuity rate of course, may be legally reduced by a lawful government and FNPF Board lawfully appointed.

FNPF cannot vary the pension rates differentially for low and high incomes

The FNPF Board previously announced that they will not reduce the existing pensions of some 89% of pensioners whose pensions are “below the poverty line”, but they will reduce those of the other 11% earning higher pensions.

However, Section 12 B of the FNPF Act specifically requires the Board “to act impartially towards beneficiaries and between different classes of beneficiaries.”

The allegedly rich pensioners cannot be treated differently from the allegedly poor pensioners.

I suspect that by now, the expensive FNPF lawyers (paid for by our savings) have probably advised the FNPF Board of this fact, which they should have known anyway if they had done their due diligence as Board Members, and carefully read the FNPF Act.

FNPF has the financial capacity to pay existing pensions

There are several legitimate sources to fund existing pensions.

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Source 1: The Pension Buffer Fund properly credited with interest

The Buffer Fund was expressly set up in 1975 to fund pensions, with all members injecting 2 cents in the dollar between 1975 and 1998, when the injection was (correctly in my view), stopped by Parliament. The Buffer Fund was then absorbed into the General Reserve in 2000 and kept earning income for the Fund.

The Buffer Fund Account was still maintained, and continued to receive all the final balances of members who chose the pension option.

But successive FNPF Boards wrongly neglected to pay interest on this Buffer Fund although the Fund earned income on these funds all these years.

My calculations (which closely match independent estimates by pensioner Jackson Mar) show that the properly credited Buffer Fund would in 2010 have amounted to roughly $870 millions which would cover around 18 years of the current annual pensions payout of around $47 million (less a few years if a lower interest rate was credited, and a few years extra as high earning pensioners gradually die off).

It is false of the FNPF to claim that they do not have the financial provisions to pay the existing pensions at the existing rates. FNPF management and Board have never made public the consultants’ figures on this issue.

Source 2: The savings from pensioners who die early

While FNPF has given numerous tables alleging cross-subsidization of existing pensioners by current contributors, it has never acknowledged nor given any data whatsoever on the numbers of pensioners who have died before they could “get back their money”.

These “savings for FNPF from those who die early” partly cover the costs of those annuities of pensioners who live on (allegedly for “too long”).

Source 3: The General Reserve

The General Reserve has also been contributed to by pensioners and has always been expected by the actuaries to be the final guarantor of pensions.

Ultimate Source 4: The Fiji Government

The FNPF Board is authorized under Section 10 of the FNPF Act:

“If the Fund is, at any time, unable to pay any sum which is required to be paid under the provisions of this Act, the sum required shall be advanced to the Fund by the Government and the Fund shall, as soon as practicable, repay to the Government the sums so advanced”

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The FNPF Board can legitimately make a case to the “Government of the Day” that they should pay any shortfall (which is not required as I state above).

It has been past governments who have enjoyed easy finance at relatively lower interest rates than charged by the private sector, and they moreover are responsible for whatever financial mess the FNPF currently finds itself in (see below).

Note FNPF Boards’ Continuing Breach of Section 8 of FNPF Act

Section 8 (FNPF Act) requires that “the Board shall, having considered the recommendation of the General Manager”, declare a rate of a rate of interest to be paid to members’ credit, not less than 2 1/2 per cent per annum provided that:

“no rate of interest exceeding 2 1/2 per cent per annum shall be so declared, unless, in the opinion of the Board, the ability of the Fund to meet all payments required to be paid under this Act is not endangered by the declaration of such rate”.

Yet year after year, the FNPF Board has declared a rate of interest higher than 2 ½ percent. Even this year (2011) FNPF Board has credited more than 5% to Members’ funds.

Yet simultaneously, the same FNPF Board and Management allege that existing pension rates are unsustainable, and have been known to be unsustainable for more than a decade.

The FNPF Board has been in clear breach of the FNPF Act by declaring rates of interest which are in excess of 2 ½ percent and at the same time claiming that the Fund is unsustainable.

While not doing what it is specifically required to do by the FNPF Act, the FNPF Board is attempting to do what is nowhere authorized in the FNPF Act, namely to reduce existing annuities contracted to existing pensioners or their beneficiaries.

Government total control of FNPF

It is extremely relevant to this case that that the Government-controlled FNPF Board has been the ultimate decision-maker on all large lending decisions (how much and interest rates) including loans to Government; all large investment decisions (ATH, Natadola, Momi, FSC, Air Pacific) and the interest rate to be credited annually to the FNPF Members: these have all impacted on the current financial viability (or lack of it) of FNPF.

Even the Promontory Report criticized the government’s excessive and negative influence on the FNPF, at the expense of the real owners of the Fund:

Paragraph 90 of the Report:

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“In discussion with stakeholders… appointments have been seen as highly politicized and blamed for some of the poorer investment outcomes. A common theme was that Government had interfered too much with operations and decision-making of the Fund.

Paragraph 91

“Policy Principle: the FNPF Board should comprise a majority of independent members. The Board’s primary fiduciary responsibility is to act first and foremost in the interests of the fund members, not representative groups, Government or even the wider interests of Fiji.”

Promontory advised that any new legislation needed to spell this out explicitly and the law be strengthened in this regard.

It can be seen therefore, even from a Report that was commissioned by the FNPF itself, that FNPF contributors and pensioners have had no say whatsoever in any of FNPF Board decisions, that Government has had over-riding negative influence, and that the Fund’s governance structure should be changed in order to make it independent of government, and to manage the fund only in the owners’ interests.

But don’t hold your breath waiting for any Military Decree to implement these Promontory recommendations. But they are happy to claim that consultants have advised this and that which they are now going to implement, come hell or high water.

Poor investment decisions by FNPF Boards

A relevant question for investigation is whether successive FNPF Boards have been giving loans to the Fiji Government at relatively low rates which the governments would not have received from the commercial banks, locally or internationally.

Is the current liquidity crisis of FNPF due to bad Board decisions made on the large investments at Natadola, Momi, GPH, FSC, Tappoo City etc which are not returning the loans on time?

Would an independent FNPF Board have made the large loans to FSC which has technically been insolvent for a couple of years, and whose problems have been worsened because of the Regime’s refusal to hold elections in 2009 (hence EU refusal to grant 300 million dollars for sugar industry restructure?

How much has FNPF lost in income and capital value because of Fiji Government’s decisions through the RBF to bring back FNPF investments from abroad?

Would an independent FNPF Board have made a $200 million loan to Air Pacific?

If a truly independent Board and FNPF had been free to invest internationally and locally, would this have resulted in higher returns to Members and higher sustainable annuities to pensioners? 8

The Military Coups’ impact on FNPF

Pensioners must also think about the broad context of economic stagnation in which FNPF has been forced to operate these last five years.

To what extent is the current FNPF crisis due to lack of investment, lack of economic growth, lack of growth in employment and incomes and FNPF contributions, due to the continuing political uncertainties and the results of the 2006 Military coup and the 2009 purported abrogation of the 1997 Constitution?

To what extent is the high rate of inflation which is eroding all pensions and funds in the Pension Fund caused by the massive deficit financing by the Government (using easy funds obtained from the FNPF), and lack of economic growth?

These are all questions which would need to be examined in detail with full facts and figures, and all available reports, made available to an expert Commission of inquiry, and to Fund Members and Owners.

Governance issue: refusal to make public all reports and FNPF data

Under the provisions of the Act, the FNPF and all its assets belongs to the current contributors and pensioners. The FNPF Board are only trustees, and together with the FNPF Management, are supposed to be accountable and transparent to the members.

Yet, for several years now, both the FNPF Board (current and preceding ones) and Management (current and preceding ones) have adamantly refused to make available to the beneficiaries of the Fund, all the various Reports and relevant data on the sustainability of the FNPF.

They make a mockery of the “Core Values” which FNPF proudly and falsely advertises on its website:

Accountability: Being answerable and having the courage and honesty to take ownership of our actions; Fairness: Treating everyone in an equitable and nondiscriminatory manner; Integrity: Being honest and fair to all our stakeholders; Excellence: Always maintaining highest standards.

The latest data on their “Key Indicators” webpage ends with 2007 data- already four years out of date. How pathetic.

Publicly available consultants’ Reports have serious gaps in data, and none of them give the details of actuarial projections based on the life expectancies; therefore one has no idea if their assumptions and analyses are correct. Some of their assumptions about future life expectancies may even be wrong.

The Board Members and FNPF management ought to be taken to task for their abject failure to abide by these “Core Values”.

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Possible errors in actuarial assumptions

The Promontory Report’s recommendations were based on the Mercer actuarial study. The Mercer presentation at the symposia organized by FNPF stated that the mortality rates they used were derived from “the 2008 Fijian population life tables prepared by the World Health Organization” (no problem) but they used “mortality improvement based on experience of the Australian population over 25 years as reported in the current Australian Life Tables (2005-07).”

Demographers know that projections of improvements in Australian mortality cannot be used to predict future trends in Fiji’s mortality. Australia’s life expectancy is rising, their people are living longer, and drawing pensions for longer, hence their annuity rates have to be lower.

However, if Fiji’s mortality falls or stagnates, then Fiji’s pensioners will die earlier than predicted by Australian trends, and Fiji’s pension annuity rates would need to be relatively higher.

All indications are that Fiji’s mortality will not fall like Australia’s and Fiji’s life expectancies will not rise like Australia’s (detailed explanation excluded here). Similar errors seem to have been made by the ILO actuarial projections and the possible differences are significant.

Would estimates of sustainable annuity rates change if we made more relevant life expectancy assumptions? We don’t know. But we should find out through an Independent Commission of Inquiry, before any changes are made to future pensions.

Amendments to FNPF Act Only through an elected Parliament

All changes to the Fiji National Provident Fund Act have historically been implemented through elected parliaments, with full responsibility falling on the people’s own elected representatives, whether the decisions were correct or incorrect.

This is the only way in which such drastic changes should be made to a legislation that will affect the lifetime savings and pensions of hundreds of thousands of waged and salaried persons in Fiji, and impact on the wider economy.

There should first be an Independent Commission of Inquiry which would examine all the financial, economic, actuarial expert analyses and reports, consider the past history (including key decisions, successes, failures, errors in judgment by FNPF Managements and Boards etc ) and give reasoned and balanced advice on the future path for the Fiji National Provident Fund.

If the Independent Commission finds that the actuarial studies, properly revised to Fund members satisfaction, do indicate the need for reviews of the pension fund, then that would no doubt go ahead, but only with social approval and social consensus, through an elected Parliament.

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All calls for greater accountability of the FNPF Board, have been totally ignored by this Military Regime, giving the lie to their Charter’s promises of accountability and transparency.

Continuing media censorship, takes away our basic human rights of freedom of expression including our rights to discuss publicly our just grievances..

Pensioners’ legitimate interests are just one casualty of this Military Regime.

The breaking of contracts with pensioners will be merely another example of the many legal and social contracts this illegal Military Regime has broken, and continues to break, with impunity.

The defense of pensioners’ rights are part of the bigger challenge to defend all our human rights in this country.

These challenges cannot be separated. To separate them is to basically state that one wants our own rights to be safeguarded, while others’ basic human rights are others’ problems.

By Dr Wadan Narsey ~26-11-2011

The illegal Military Regime has announced their plans to go ahead with their FNPF restructuring (more later, on that), and effectively, they are trashing the contracts that FNPF had signed with pensioners.

Existing pensioners will be give a choice of receiving back their final balance when they retired (in nominal dollars, of course), or go on to the new single pension rates which will range from 8.7% if you are 55 to 12.3% for those 70 years old and over.

This will give existing pensioners a “Hobson’s choice” or more correctly, the “Morton’s Fork” between two options,  both of which will imply an effective reduction to their existing contracted entitlements.

Or they can go ahead with the Burness/Shameem legal case (supposed to be heard in February 2012) to try and stop the Regime from changing their existing contracts.

But of course, there may yet be another Military Decree stopping any challenges in court.

Before that choice is thrust down our throats, and while we beg the Military Regime for “permission to discuss our just grievances in the media”, FNPF pensioners might want to clear their cobwebs on the following five statements, and especially Statement 3:

1.         Existing FNPF pensions cannot be legally reduced under the FNPF Act.

2.         The FNPF Act does not allow FNPF to vary the pension rates differentially for allegedly high and low income pensioners.

3.         FNPF has the financial capacity to pay existing pensions at their current rates for another 18 years, if the Buffer Fund had been properly credited with interest payments from 1975   to the present, AND if the provisions of the FNPF Act had been strictly followed by    successive Boards.

4.         Successive Fiji governments, including the current illegal Military Regime, have been        directly and solely responsible for whatever mess exists at FNPF today

5.         The only proper way to change the FNPF Act is for an Independent Expert Commission   of Inquiry into FNPF to make recommendations which should only be considered by a      future elected Government.

Essential background
The Fiji National Provident Fund is not a “government owned public enterprise” belonging to the Fiji public and tax-payers, but it belongs only to the workers whose contributions have funded it.

Historically, however, FNPF has been totally controlled by successive governments, from its inception till today.

The FNPF was originally intended to be a compulsory savings scheme for workers, with all the savings and interest thereon to be returned to the worker as a lump sum on retirement (read the Legislative Council debates in 1968).

The system was then lawfully changed by Parliament in 1975 to introduce a pension annuity option, which was set at the high rate of 25% for single pensions, to encourage retirees to take the pension rather than the lump sum.

Despite that high rate of pension, the pension uptake was way less than 15%.

Then when the uptake proportion did begin to rise (late 80s and early 90s), an ILO study (1993) advised that the annuity rate should be brought down gradually to 10%.

But the 1998 Parliament decided to bring the pension rate down to 15%, gradually over ten years.

Even if actuarially unwise, this was a lawful decision made by Parliament, thereby legally under-writing the contracts which all pensioners have entered into.

To break these contracts is to make a mockery of justice, law and order, constitutionality, and the sacred powers and responsibilities of Parliament, and the people it represents.

But why is it that the ILO projection that in the long term some 35% of retirees would take the pension, has been proven inaccurate?

The FNPF’s pension gamble: the “risk of dying early”

Why is it that while actuaries have concluded that the annuities between 15% to 25% have been excellent value, the historical reality has been that the majority of retirees (more than 70%) have not been taking up the “good” pension offers?

Of course, the return was high.  But there is the risk of dying early and losing all thereafter.

This is a tough choice even for educated people, and even at the current allegedly high 15% pension rate.

I suspect that many of the retirees who took the pension option would be financially well-off and able to handle the risk of dying early.

Don’t forget that while some pensioners have found the annuity excellent value (which FNPF harps on about), some retirees have also died before they “recovered their life savings”: their families have lost out (no comment from FNPF on these losers).

Recent developments
The recent Promontory Report, based on the actuarial study by Mercer, and examining the recent poor investment and income record of FNPF, recommended the further reduction of the single pension rate to 9% but only for future pensions (not existing pensions).

This Promontory Report has been very selectively used by the FNPF Board and Management to justify their planned changes to existing pensions.

At one stage FNPF Management stated that all annuity rates (existing and future) would be reduced to around 9%.

Then they backtracked to some nebulous proposal  that they would reduce the existing pensions only of those above some “poverty line” (to be decided by themselves).

Coconut Wireless now suggests they have dreamed up another “scheme” to give the illusion of “choice” to existing pensioners.    Wait for the 2012 Budget on Friday 25 November 2011, to reveal all (and more).

But pensioners must not forget that existing contracts of pensioners are legally valid and cannot be forcibly changed, by offering alleged “choices” to pensioners.

FNPF offered legal contracts to pensioners, approved by Fiji Parliament

The undisputed facts are:

(a) The current pensions were all freely offered by FNPF whose Boards have always been totally controlled by Government: all  FNPF Board members have been appointed by Government (while Employers’ Associations and unions may nominate representatives, the final choice and appointments are made by the Minister); and the Chairman of the Board has always been appointed by Government.

(b) All decisions on annuity rates have been made by the elected Parliament: the FNPF Board can only make recommendations, not decisions.

FNPF initially thought that Section 63 of the FNPF Act which states that the FNPF Board may “prescribe the amount, frequency of payment and duration of any annuity payable under the provisions of paragraph (b) of section 64” as may be” gives the Board an authority to reduce existing pensions.   This was a completely wrong interpretation, as that section simply refers to Section 64 (b) which gives powers only over the method of dispensing the annuity already decided upon by parliament as a percentage of whatever balance the pensioner leaves with the Fund.

Once that percentage has been fixed (and the OP-9 form specifies both the percentage and the corresponding dollar amount), the amount of the total annual annuity in dollars and cents cannot be changed- as that would be changing the percentage of the final balance being given to the pensioner in a legal contract on the OP-9 form.

Nowhere in the contract (the 9-OP form) is there any clause which warns the pensioners that their pension rate may be changed in the future by the FNPF Board at its discretion.

Any attempt by the FNPF Board to vary the annuity rate, already offered to and accepted by pensioners, is therefore totally contrary to the FNPF Act and in breach of the laws on contracts.

FNPF has the full capacity to enter into contracts
Article 4 of the FNPF Act states that the FNPF Board shall be a body corporate and shall, by the name of “The Fiji National Provident Fund Board”, have perpetual succession and a common seal …. The Board may sue and be sued in its corporate name and may enter into contracts.

A legal corporate body (FNPF) made a clear offer (on Form 9-OP) to the retirees that should they choose the pension option (whether single, joint or combination) and leave all of some of their savings with the FNPF, they would receive in return an annuity (expressed explicitly in dollars and as a fixed percentage of their final balance) until they (or their nominated partner) died.

Legally, in a civilized world without arbitrary Military Decrees, the FNPF (and the Board Members) may be sued if they break these contracts.

If FNPF Board Members cannot be sued in Fiji, it should be investigated if those with foreign residency, can be sued in their home countries.

Promontory advised that existing pensions cannot be altered under contract law

The Promontory Report stated (paragraph 25):

“There have been some suggestions that existing pensions should be

withdrawn, capped or reset at a discount. … Any retrospective adjustment of

existing pension benefits would be difficult under contract law……  While an adjustment to existing pensions remains a possibility (huh?), it is not further considered in this paper”.

Promontory based the rest of their analysis and recommendations on FNPF not breaking its contracts with existing pensioners.

The Promontory Report clearly separated the problem of funding existing pensioners, from the problem of funding future pensioners, whose annuity rate may be legally reduced by any lawful government.

FNPF cannot vary the pension rates differentially for low and high incomes
The FNPF Board previously announced that they will not reduce the existing pensions of some 89% of pensioners whose pensions are “below the poverty line”, but they will reduce those of the other 11% earning higher pensions.

However, Section 12 B of the FNPF Act specifically requires the Board “to act impartially towards beneficiaries and between different classes of beneficiaries.”

Forget poverty lines, etc etc.

FNPF has the financial capacity to pay existing pensions

There are several legitimate sources to fund existing pensions.

Source 1:  The Pension Buffer Fund

This was expressly set up in 1975 to fund pensions, with all members injecting 2 cents in the dollar between 1975 and 1998, when the injection was stopped by Parliament.   The Buffer Fund was then absorbed into the General Reserve in 2000.

However the account was still maintained, and continued to receive all the final balances of members who chose the pension option.

But successive FNPF Boards wrongly neglected to pay interest on this Buffer Fund although the Fund earned income on these funds.

My calculations show that the properly credited Buffer Fund would in 2010 have amounted to some $870 millions (or a bit less given that the interest income has to be spread over all the shareholders’ funds), which would cover around  18 years of the current annual pensions payout of around $47 million (and probably more as high earning pensioners gradually die off).

It is false of the FNPF to claim that they do not have the financial provisions to pay the existing pensions at the existing rates.

Source 2:  The savings from pensioners who die early

While FNPF has given numerous tables alleging cross-subsidization of existing pensioners by current contributors, it has never acknowledged nor given any data whatsoever on the numbers of pensioners who have died before they could “get back their money”.

These “savings for FNPF from those who die early” partly cover the costs of those annuities of pensioners who live on (allegedly for “too long”).

Source 3:  The General Reserve

The General Reserve has also been contributed to by pensioners and has always been expected by the actuaries to be the final guarantor of pensions.

Ultimate Source 4:   The Fiji Government

The FNPF Board is authorized under Section 10 of the FNPF Act:
“If the Fund is, at any time, unable to pay any sum which is required to be paid under the provisions of this Act, the sum required shall be advanced to the Fund by the Government and the Fund shall, as soon as practicable, repay to the Government the sums so advanced”

The FNPF Board can legitimately make a case to the “Government of the Day” that they should pay any shortfall (which is not required as I state above).

It has been past governments who have enjoyed easy finance at relatively lower interest rates than charged by the private sector, and they moreover are responsible for whatever financial mess the FNPF currently finds itself in (see below).

Note FNPF Boards’ Continuing Breach of Section 8 of FNPF Act
Section 8 (FNPF Act) requires that “the Board shall, having considered the recommendation of the General Manager”, declare a rate of a rate of interest to be paid to members’ credit, not less than 2 1/2 per cent per annum provided that:
“no rate of interest exceeding 2 1/2 per cent per annum shall be so declared, unless, in the opinion of the Board, the ability of the Fund to meet all payments required to be paid under this Act is not endangered by the declaration of such rate”.

Yet year after year, the FNPF Board has declared a rate of interest higher than 2 ½ percent. Even this year (2011) is has credited more than 5% to Members’ funds.

Yet the current FNPF Board and Management allege that existing pension rates are unsustainable, and have been known to be unsustainable for more than a decade.

The FNPF Board has been in breach of the FNPF Act by declaring rates of interest which are in excess of 2 ½ percent and at the same time claiming that the Fund is unsustainable.

While not doing what it is specifically required to do by the FNPF Act, the FNPF Board is attempting to do what is nowhere authorized in the FNPF Act, namely to reduce existing annuities contracted to existing pensioners or their beneficiaries.

Governance issue: refusal to make public all reports and FNPF dataUnder the provisions of the Act, the FNPF and all its assets belongs to the current contributors and pensioners. The FNPF Board are only trustees, and together with the FNPF Management, are supposed to be accountable and transparent to the members.

Yet, for several years now, both the FNPF Board (current and preceding ones) and Management (current and preceding ones) have adamantly refused to make available to the beneficiaries of the Fund, all the various Reports and relevant data on the sustainability of the FNPF.

They make a mockery of the “Core Values” which FNPF proudly and falsely advertises on its website:

Accountability: Being answerable and having the courage and honesty to take ownership of our actions; Fairness: Treating everyone in an equitable and nondiscriminatory manner; Integrity: Being honest and fair to all our stakeholders; Excellence: Always maintaining highest standards.

The Board Members and FNPF management ought to be taken to task for their abject failure to abide by these “Core Values”.   The latest data on their “Key Indicators” webpage ends with 2007 data- already four years out of date.  How pathetic.

Publicly available consultants’ Reports have serious gaps in data, and none of them give the details of actuarial projections based on the life expectancies; therefore one has no idea if their assumptions and analyses are correct.

Some of their assumptions about future life expectancies may even be wrong.

Possible errors in actuarial assumptions
The Promontory Report’s recommendations were based on the Mercer actuarial study. The Mercer presentation at the symposia organized by FNPF stated that the mortality rates they used were derived from “the 2008 Fijian population life tables prepared by the World Health Organization” (no problem) but they used “mortality improvement based on experience of the Australian population over 25 years as reported in the current Australian Life Tables (2005-07).”

Demographers will know that projections of improvements in Australian mortality cannot be used to predict future trends in Fiji’s mortality. Australia’s life expectancy is rising, their people are living longer, and drawing pensions for longer. If the Australian patterns of mortality improvement did apply to Fiji, then Fiji’s people would also be living longer, and the sustainability of FNPF pensions may indeed require relatively lower pension or annuity rates for Fiji.

However, if Fiji’s mortality falls or stagnates, then Fiji’s pensioners will die earlier than predicted by Australian trends, and Fiji’s pension annuity rates would correspondingly need to be relatively higher.

All indications are that Fiji’s mortality will not fall like Australia’s and Fiji’s life expectancies will not rise like Australia’s (detailed explanation of this is excluded here).  Similar errors seem to have been made by the ILO actuarial projections.

Government’s excessive role in FNPF
Note that the Government-controlled FNPF Board has been the ultimate decision-maker on:

(i) all large lending decisions (how much and interest rates) including loans to Government.

(ii) the interest rate to be credited annually to the FNPF Members.

(iii) the three historical decisions approved by Parliament: the original 1975 decision to pay 25% annuity on single pensions; the 1998 decisions to reduce pensions gradually from 25% to 15%, and the stopping of contributions to the Buffer Fund.

(iv) all large investment decisions, including the questionable price paid for the majority shares in ATH which independent assessors thought may have been more than $100 million or probably up to $150 million in excess; and the cost blowout at Natadola and Momi.

Even the Promontory Report criticized the government’s excessive and negative influence on the FNPF:

Paragraph 90 of the Report:

“In discussion with stakeholders… appointments have been seen as highly politicized and blamed for some of the poorer investment outcomes. A common theme was that Government had interfered too much with operations and decision-making of the Fund.

Paragraph 91

“Policy Principle: the FNPF Board should comprise a majority of independent members. The Board’s primary fiduciary responsibility is to act first and foremost in the interests of the fund members, not representative groups, Government or even the wider interests of Fiji.”

Promontory advised that any new legislation needed to spell this out explicitly and the law be strengthened in this regard.

It can be seen therefore, even from a Report that was commissioned by the FNPF itself, that FNPF contributors and pensioners have had no say whatsoever in any of FNPF Board decisions and that Government has had over-riding influence.
Poor investment decisions by FNPF Boards
A very important question for investigation is whether successive FNPF Boards have been giving loans to the Fiji Government at relatively low rates which the governments would not have received from the commercial banks, locally or internationally.

Would a truly independent Board and FNPF, free to invest internationally and locally, have been able to receive higher interest rates from the Fiji Government which could have resulted in higher returns to Members and higher sustainable annuities to pensioners?

Is the current liquidity crisis of FNPF due to bad Board decisions made on the large investments at Natadola, Momi, GPH, FSC, Tappoo City etc which are not returning the loans on time?

Would an independent FNPF Board have made the large loans to FSC which has technically been insolvent for a couple of years, and whose problems have been worsened because of the Regime’s refusal to hold elections in 2009 (hence EU refusal to grant 300 million dollars for sugar industry restructure?

How much has FNPF lost in income and capital value because of Fiji Government’s decisions through the RBF to bring back FNPF investments from abroad?

The Military Coups’ impact on FNPF
To what extent is the current FNPF crisis due to lack of investment, lack of economic growth, lack of growth in employment and incomes and FNPF contributions, due to the continuing political uncertainties and the results of the 2006 Military coup and the 2009 purported abrogation of the 1997 Constitution?

To what extent is the high rate of inflation which is eroding all pensions and funds in the Pension Fund caused by the massive deficit financing by the Government (using easy funds obtained from the FNPF), and lack of economic growth?

These are all questions which would need to be examined in detail with full facts and figures, and all available reports, made available to an expert Commission of inquiry, and to Fund Members and Owners.

Amendments to FNPF Act Only through an elected Parliament
All changes to the Fiji National Provident Fund Act have historically been implemented through elected parliaments, with full responsibility falling on the people’s own elected representatives, whether the decisions were correct or incorrect.

This is the only way in which such drastic changes should be made to a legislation that will affect the lifetime savings and pensions of hundreds of thousands of waged and salaried persons in Fiji, and impact on the wider economy.

There should first be an Independent Commission of Inquiry which would examine all the financial, economic, actuarial expert analyses and reports, consider the past history (including key decisions, successes, failures, errors in judgment by FNPF Managements and Boards etc ) and give reasoned and balanced advice on the future path for the Fiji National Provident Fund.

If the Independent Commission finds that the actuarial studies, properly revised to Fund members satisfaction, do indicate the need for reviews of the pension fund, then that would no doubt go ahead, but only with social approval and social consensus, through an elected Parliament.

All calls for greater accountability of FNPF Board, have been ignored by this Military Regime, giving the lie to their Charter’s hollow  promises of accountability and transparency.

Continuing media censorship, takes away our basic human rights of freedom of expression including our rights to discuss publicly our just grivenances..

Pensioners’ legitimate interests are just one casualty of this Military Regime.

The breaking of contracts with pensioners will be merely another example of the many legal and social contracts this illegal Military Regime has broken, and continues to break,  with impunity.

The defense of pensioners’ rights are part of the bigger challenge to defend all our human rights in this country.

These challenges cannot be separated.   To separate them is to basically state that one wants our own rights to be safeguarded, while others’ basic human rights are others’ problems.

Annex             My Early Warning Signals on FNPF

“The ATHL monopoly: between the devil and the deep blue sea”, The Fiji Times, 6 March 2002:

How FNPF’s purchase, at an extremely inflated price, of majority shares in the ATH super monopoly condemned to a quandary where to protect its investment, it would have to squeeze maximum dividends out of its ATH shares, and hence the maximum from Vodaphone, Telecom Fiji and FINTE, at the expense of consumers and the economy.

“The Reserve Bank and the FNPF: funny business for the guv”. The Fiji Times, 12 March 2002:

The inherent conflicts interest for the Governor of the Reserve Bank who  was also appointed as Chairman of FNPF and also Chairmanship of FINTEL: with the RBF forcing FNPF to bring back its investments (thereby losingrevenue and risk minimisation for FNPF), RBF’s role as regulator of Fiji’s financial system while FNPF was a huge player in the financial market, etc. A similar conflict of interest was also always there with the Permanent Secretary of Finance, or other Permanent Secretaries being appointed as Chairman of the FNPF Board.

“Communications Monopoly monsters at work” The Fiji Times, 21 May 2004:

How the communications monopolies were doing huge damage to Fiji economically and socially, and FNPF, to gain short-term dividends, was harming itself in the long run by supporting monopolistic practices which squeezed the economy, reduced economic growth and job creation and thereby squeezed its own long-term growth in contributions from existing and new members.

“Auditors between the devil and the deep blue sea”. The Sunday Times, 14 August 2005:

that the implications of the Professor Michael White’s analysis of FNPF accounts by auditors on  how FNPF would appear to be far worse if proper accounting procedures were to be followed in respect of the massive premium paid by FNPF for ATH shares, and the likely loss of value once competition was brought into the telecommunications industry

“Stock markets, sharks, suckers and victims”. Islands Business, May 2006:

While stakeholders in the Fiji Stock Exchange had been attempting to encourage the public to convert their savings into shares in the stock market, it points to the dangers lurking in the future, especially if governments, under pressure from WTO or just a good change in policy, try to reduce monopolies, such as cement  producing companies, or ATH. There would be inevitable losses in share value,which stock market stakeholders were not pointing out. FNPF had even been encouraging its members, wrongly in my view, to use their FNPF money to buy shares in ATH.

“Coup wolves circling FNPF” Fiji Sun, 14 March 2009 and The Fiji Times 13 March 2009.

Fijian Holdings Limited, a company controlled by the Military Government, tried to            borrow more than a hundred millions from FNPF, when private banks had refused.     FNPF refused. More ominously, the Military Government wants to borrow hundreds of      millions, basically to sustain their increased recurrent expenditure and military over-   spending. The private banks, local or overseas, will not oblige. If FNPF continuously          gives in to such lending pressures from Government, without economic growth, it will only encourage inflation to rise in the long term, thereby slashing the real value of           everyone’s savings and pensions. And if ever pensioners totally lose confidence in FNPF,   it may become insolvent, with future pension rates slashed, and even existing pensions             reduced in dollar terms. The key issue is that the FNPF Board is now controlled by an        unelected Military Government’s appointees and we the FNPF contributors who own the         savings do not have a single direct representative on the FNPF Board who can be          accountable to us.

Then came the Military Regime’s censorship of Fiji media, which Fiji meekly accepted.  Most of the rest of the articles had to be published abroad.

“Saving FNPF and Fiji”  Pacific Scoop, 12 May 2010.

FNPF announced a $327 million “write down” in its investment value (with some $300 million of that due to the Natadola loan). But FNPF also has some other large exposures which are not looking good: Momi, FSC and other private sector borrowers. And very strange that RBF has lent $22 million to the Fiji Sugar Corporation (FSC). These are all extremely worrying developments for FNPF, RBF and for Fiji. Urgent need for Public Inquiry. How did these massive losses take place? Who should be held responsible? Might it get worse for FNPF? And how should FNPF management be strengthened to prevent further unwise decisions?

“Helping FNPF, despite media censorship”. Pacific Scoop. 18 January 2011:

With a stagnating economy FNPF revenues have been severely constrained. Few new jobs have been created and existing incomes have not grown; many loans are nonperforming; returns on FNPF investments have been declining; and large amounts of capital values have been written off because of mismanagement. But collectively, FNPF contributors and pensioners remain the largest group of spenders in the Fiji economy. This article constructively suggested how FNPF contributors and pensioners could direct their consumption expenditure towards FNPF investments (such as Holiday Inn, the Intercontinental, and Tappoo City), and change FNPF policies for the better. How FNPF management could encourage this by providing financial incentives and changing their management structure. Called on FNPF stakeholders (FNPF itself, unions, pensioners, civil servants etc) to conduct marketing campaigns in the aid of FNPF assets and loans recipients.

“Your money is not fully yours”. The Fiji Times 7 May 2011:

While Fiji citizens technically own their money, they and their institutions (like FNPF) are not free to invest it where they wish to- they must obtain RBF permission to invest abroad. FNPF, which used to keep moderate amounts of their funds abroad in order to diversify their investments, have also been forced to bring them back, wherever there have been foreign exchange reserves crises, and suffered losses as a consequence. Whatever the FNPF loses in income, is gained by the RBF, which passes it n to the Government of the day, to spend and enjoy. Fiji citizens, who were forced to keep their investments in Fiji, have paid a heavy price, periodically.

“FNPF sinks lower” Pacific Scoop. 26 May 2011:

That the FNPF symposium being organized by the FNPF and the Military Regime was a farce. The FNPF management and Board, under orders from the Bainimarama Regime,  continue to hide all the reports that would reveal that the Bainimarama Regime is itself directly and indirectly responsible for a large part of the mess that the FNPF is currently in and the urgency of needed reforms; The Bainimarama Regime will continue to milk the FNPF cow, which, with increased contributions and reduced payouts, will give them even more of our savings to use ad misuse, however they wish. The contributors to FNPF and the pensioners of FNPF, will have no choice in the matter. With media censorship, they cannot even publicly and freely discuss these massive changes to your pension fund.

Called on the contributors and pensioners of FNPF to demand the public release of all the reports by IMF, WB, ILO and recent independent consultants; demand the release of all the reports on the investigation into the investments at Natadola, Momi; demand that the majority of the FNPF Board Members must be democratically elected by the current FNPF contributors and with pensioners having separate elected representation; demand that the Chairman of the Board must be from these elected Members and definitely not some foreigner as currently; demand that any decision on changes to the FNPF must be made by the elected Board and not the current Board and Management; demand that FNPF must be allowed to invest as much of its funds abroad as is prudently advisable and that RBF must recompense FNPF for all the lost earnings because of foreign investments brought back; demand that the FNPF management swear oaths of allegiance to the real owners of the Fund- the contributors and the pensioners, and not to an illegal Military Government.