Open Letter to Justice Pradeep Hettiarachchi, Judge of the Fiji High Court in the matter of David Burness v the Fiji National Provident Fund, the President of Fiji and the Attorney General, and other Applicants, [Civil Action 183 of 2011]

Dear Hon. Justice Hettiarachchi,

We, as pensioners who filed our own applications in court on August 30th alongside Mr David Burness in Civil Action 183 of 2011, write to respectfully urge you, as a Justice of the High Court, not to accede to any application by the Attorney-General to terminate our applications for human rights redress against the Fiji National Provident Fund and Government decision to cancel our pension contracts by decree.

We know that it was for the Court to decide whether or not the pensioners had a contract with the Fiji National Provident Fund but Decree No 51 removes our right, which is a fundamental human right, to be heard on this point by a court of law. Specifically, section 11 (6) of the Decree states:

(6)  A court, tribunal or any other adjudicating body in which a proceeding, claim, challenge or dispute to which subsection (5) applies had been commenced must, on application by the Attorney-General, issue a certificate to the effect that the 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.

The Attorney General is the 3rd Respondent in our applications. Section 11 (6) of the Decree makes it mandatory for the Court to terminate our proceedings upon a mere application by the 3rd Respondent.  

May we, at least, be heard on why our proceeding should not be terminated by the Court just on an arbitrary application by a party to the action?

We also ask to be heard on why the breach of our FNPF contracts constitutes a human rights violation, notwithstanding section 11 (1) of Decree No 51 which states that our pensions are not regarded as human rights or property rights. The Court will be aware, as a matter of judicial notice, that Fiji’s Prime Minister recently, in the UN General Assembly, announced the country’s commitment to the UN Charter. The UN Charter obliges the state of Fiji, in international law, to protect all human rights, including property rights.

Specifically, in relation to our contracts with FNPF, we would appreciate the opportunity to be heard on the following Legal Dictionary definition of contracts in accordance with our applications to the Court:

If one party makes a statement or a promise that causes another party to rely on that statement in such a way that he or she is financially injured by that reliance, then a court will enforce the statement or promise as if it was a completed contract. The court does not need to find an agreement or consideration in order to enforce the promise like a contract.

We also seek to be heard on whether, under the landmark Anisminic principle, the High Court should accede to any application made by the Attorney-General, pursuant to section 11 (6) of the Decree, to terminate our case already before you. The Anisminic principle shows that courts are always reluctant to give effect to any ‘legislative’ provision that attempts to exclude their jurisdiction. Even when a purported exclusion is clearly worded in a statute, courts have said that they are not precluded from scrutinizing such a provision to determine whether they are in fact excluded. In our specific circumstances, we would like to point to an inconsistency between Decree No 51 and Fiji’s recent commitment to the UN Charter, which would allow us to be heard prior to any certificate of termination being granted by Your Lordship.

We are aware that Decree No 51 is not a ‘legislative’ provision (that is, not enacted by the legislature); it is an executive decree and, therefore, exclusionary clauses such as Section 11 (6) must be even more strictly interpreted by the Court. We believe the Court can find a way to review the legality of such a provision from the universal human rights protective principle of the ‘right to be heard’. Hon. Justice Hettiarachchi, you will be aware that the right to be heard comes also from the common law, originating in the Latin phrase ‘Audi Alterum Partum’ which has found its way from the Magna Charta to all constitutional documents and human rights law since time immemorial. We understand this phrase to mean that ‘no one shall be deprived of their rights and possessions without a hearing in a court of law’.

As Fiji Citizens and law abiding people who have, for all our lives, respected and followed the rule of law in Fiji, we believe we have the right to ask the courts of Fiji for justice for a violation of our rights. We believe that our courts of justice, and in our case yourself, Hon. Justice Hettiarachchi, have good reason to give us an opportunity to be heard, particularly on rebuttable presumptions in Decree No 51 which affect our rights.

The applications of all of us, that is, retired and elderly pensioners of Fiji who were locked into a mandatory pension scheme under both Cap 92 Employment Act and Cap 219 FNPF Act, should not be terminated in such a cavalier fashion by the executive institutions of the State so that even a Court of Justice, in which we had so much faith, is now made completely out of bounds.

We apologize for communicating with you in this way, but section 11 (6) of Decree No 51 has left us with no other choice. The Government is forcing us to accept an untenable option.

Please accept, Sir, assurances of our highest consideration and respect.

Yours sincerely,

FNPF Pensioner Applicants for Human Rights Redress filed in the High Court on 28th June, 19th August and 30th August 2011.