By Dr Shaista Shameem, Counsel for David Burness

In case pensioners had missed it, Decree No 51 FNPF Transition Decree was released today to the public, backdated to November 25th –D-Day (Disaster Day) for pensioners.

Most of the initial sections of the Decree contain the usual indecipherable language which drafters of Fiji’s pension decrees like to employ for no other reason than to confuse and frighten elderly people. The FNPF decrees are a death sentence for many who will no longer be able to afford even the most basic of medical care when they need it most. I am very glad my parents are not alive to witness this total violation of the rights of old people and destruction of their limited means.

Part 4 of the Decree is where the real sting lies. Titled ‘Protections’ (it clearly means protection of the government from civil suit rather than protection of the rights of people), this part of the decree gives, among other things, power to the Attorney General or his appointee to tell the court, tribunal or other judicial mechanism to terminate a proceeding or any challenge to the new FNPF decrees.

In all my experience as a litigator and practicing lawyer, I don’t believe I have ever seen a provision similar to section 11 (6) of Decree No 51, which states as follows:

A court, tribunal or any other adjudicating body in which a proceeding, claim, challenge or dispute…. had been commenced must, on application by the Attorney General…, issue a certificate to the effect that a proceeding, claim, challenge or dispute, and all orders (however described) in the proceeding, have been wholly terminated on the date of commencement of this Part.

This provision, in layperson’s language, says that if the Attorney-General makes an application to the court to terminate a proceeding in relation to FNPF decrees the court must (note the mandatory word ‘must’) issue a certificate to state that the proceedings have been wholly terminated. By this provision, the AG of Fiji is directing the court to issue a certificate of termination for challenges to the FNPF decrees. As everyone knows, the Burness case is one such challenge.

Section 11 (6) of the Decree is direct interference by the AG with the powers of the judiciary. He can tell the court to terminate the Burness case in which he is a party- the AG is the third respondent. This is evidence of abuse of power by decree. Will the High Court comply with such an application by the AG? Courts, historically, have been quite creative when it comes to disregarding executive (non parliamentary) interference with its jurisdiction, as the landmark Anisminic case showed.

Further to this, the new decree has pronounced, by way of section 11 (1) that the decree is ’not to be taken to be inconsistent with a human right or similar right’, and section 11 (2) states that the decree is ‘not to be taken to provide for a deprivation of property of anyone’. Such drivel is decreed in the face of all international case law to the contrary.

Obviously, the drafters of the decree think they can decide what constitutes (God-given) human rights and what does not. If section 11 of Decree No 51 were not so tragic in its effect, it would be laughable. The drafters and policy-makers clearly did not attend the workshops convened by the Fiji Human Rights Commission during the glorious days of the 1997 Constitution which, in Chapter 4, represented the decision of the people on definitions of human rights.

Such Donkey-Kong type of law-making emanating from the AG’s Office does not augur well for Fiji’s future. 

To read the Decree in full click on the following link > FNPF transitional decree