Commentary on Budget Announcement re ‘Civil Pensioners or those who fall outside the FNPF Scheme’- is this ‘windfall’ fair?

Dr Shaista Shameem

The Budget Speech on Fiji National Provident Fund Pensions was a shocker. Pensioners supporting the David Burness v FNPF and AG  case are still reeling from the implications of it for them, that is, having their FNPF contracts cancelled without compensation.

What astonished most pensioners, however, was the part of the budget speech titled ‘Pensioners’, on page 19 of the speech.

This part is quoted in full below:

Regarding civil pensioners or those who fall outside the FNPF scheme, they will receive an increase on their existing entitlements. The last time these civil pensioners received an adjustment it was for 1 percent, back in 2005.

This time, former civil servants, their spouses, former members of the disciplined forces, war veterans, retired judges, former prime ministers, ministers and former members of parliament will all receive a 20 percent increase on their existing entitlements’ (my emphasis)

From the perspective of the Burness case already in court, consider what this provision means. It seems judges who retire will get a refund of their FNPF balance (hard cash) plus a 20% increase in their judicial pensions.

An example may illustrate our disquiet in relation to this provision better: if Judge Smith had worked as a lawyer before being appointed a judge, he or she would have been a member of FNPF and therefore entitled to a FNPF pension. If Judge Smith had chosen to take the pension option, he or she would now be entitled, under the new decree, to both a refund of his or her FNPF balance, as well as a 20% increase in judicial pension upon retirement as a judge.

No one knows how many of the judges are members or beneficiaries of the FNPF pension scheme but the public perception that judges in this category will receive a windfall at the expense of other FNPF pensioners cannot be dismissed. FNPF pensioners’ pensions, on the other hand, are not inflation adjusted.

The possible implications of a decree bequeathing such a windfall on the hearing of the Burness case cannot be ignored or dimissed.  

A landmark House of Lords case is pertinent in this regard: In Re Pinochet Judgment of 17th Decemner 1998 and 15th January 1999, where the Law Lords said…’it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest’.

Public perception in this instance, in which a FNPF pensioner’s pension is to be reduced significantly whereas judicial pensions are to be increased by 20%, all by decree, is surely something to consider quite seriously in light of the aforementioned Re Pinochet decision.

Under these circumstances what would be the judicial attitude towards the strike out application currently being made by the FNPF and Government in the Burness case?