Radio Australia News Report

Fiji lawyer condemns decree on superannuation fund

The lawyer representing a Fiji pensioner taking to government to court to halt cuts to superannuation payments has criticised a decree which could halt such cases.

Shaista Shameem, of Shameem Law in Suva, is acting for David Burness, who is taking the coup installed military government to court alleging proposed changes to the fund, including large cuts to pensions, are discriminatory.

The interim government has just issued a decree which gives it the power to end such court challenges.

Radio Australia is waiting for the Fiji government to respond to a request for an interview.

Presenter:Bruce Hill
Speaker:Shaista Shameem, principal, Shameem Law

SHAMEEM: Well it’s a direct interference with the powers of the judiciary by the Attorney General. One of the sections of the decree says that if the Attorney General makes an application to the High Court to terminate a proceeding, which is what Burness’s case is about, then the High Court has to issue a certificate of termination.

HILL: So essentially that makes the Attorney General a party to the case but also he .. declares himself the winner?

SHAMEEM: In the Burness case the Attorney General is the third respondent, so basically he is a party to the case, and he can direct the court to terminate the proceeding.

HILL: Is there any kind of law like this in any other Commonwealth country?

SHAMEEM: No and in fact none of the other decrees in Fiji have this kind of section or this kind of provision. So this is a first even for Fiji.

HILL: Why is the government so intent on this case about the National Provident Fund and people’s pensions? What is it that’s got them to institute this kind of very heavy-handed law?

SHAMEEM: Well clearly because David Burness was going to win his case.

HILL: And if he’d won his case, what would that have meant for the government?

SHAMEEM: Well it would have meant a serious loss of face, it would have meant a serious loss of face not only for the Fiji National Provident Fund, but also for the Attorney General and the drafters, as well as the government as a whole. All case law internationally shows that pensions are a human right, and that they cannot be removed by the government. And so under those circumstances had we been allowed to proceed through the court system, we would have won this case.

HILL: But I suppose the government might well argue that the Fiji National Provident Fund simply doesn’t have the money to fund the pensions the people feel they’re legally entitled to, and so legal obligation or not, there just isn’t the money?

SHAMEEM: Well that’s in fact something we dispute, because economic analysis and accountant analysis show that it’s in fact the very opposite, that there are different ways of dealing with the situation of the problems within the FNPF, in fact also the situation that has not been clearly disclosed to everyone, that we can in fact through a different system and different calculations, support current pensions as well as the same pensions in the future. And that was going to be part of our case. We have already submitted those papers to the court. So clearly the other side, FNPF and the government have seen those papers, those submissions made by economists and people who’ve been involved in the FNPF for a very long time, and it’s very obvious that they didn’t have a leg to stand on because the analysis was all there. And so this is their response to the issue.

HILL: Well if indeed the Attorney General does make an application to basically have this legal case by David Burness that you’re representing terminated, what can you do about it? Apparently under this decree that’s the end of it?

SHAMEEM: Yes I’m afraid David Burness is very upset about it and rightly so, and he’s got a few things to say. But we’ll see. I’m not second-guessing anything, I will wait for the certificate of termination if it comes my way. Hopefully the judges may find a way of side-stepping it, but that’s really up to the court now.