The simple question that Dr Shaista Shameem, counsel for Burness v FNPF and the AG has for Tompkins and Rashbrooke, upon reading the Fiji Times is this:
If, as Tompkins and Rashbrooke say, (1) FNPF pensions were ‘not contracts’ and (2) the FNPF pensioners were ‘winning at someone else’s expense‘ , why did the Government and FNPF (joined at the hip), and taking advice from the Solicitor General who is a party to the action, not allow the High Court to decide these legal questions?
Surely these legal issues, since they have been challenged in the Burness case, can only be decided by a court of law? Why was there a need for FNPF and the Government to interfere with the independence of the judiciary by including section 11 (6) in Decree No 51?
Dr Shameem is certain that neither Tomkins nor Rashbrooke (nor indeed the Solicitor General Christopher Pryde) would be allowed to get away with this type of blatant abuse of power in their own countries, namely Australia and New Zealand. Especially where a radical alternation in pension rights has been implemented without the due process of parliament. The NZ Law Society has already commented on Decree No 51 as purposely interfering with the power of a judge to decide a case already in the High Court.
She says Tompkins, Rashbrooke and Pryde’s actions in discriminating against FNPF pensioners represent the worst form of neo-colonialism and export of neo-liberal market ideology to a Pacific Island nation. Due to its political naiveté the Fiji Government has no idea what this new pension policy will mean for the people of Fiji in the long run. Aisake Taito’s lack of economic acumen is apparent every time he makes a press statement.
Dr Shameem says the people of Fiji deserve better than carpetbaggers from Australia and New Zealand deciding their fate and they certainly deserve a lot better than Taito’s tight-shirted ‘attitude’ problem.
Members of the public at the FNPF public consultation at Rishikul Secondary School. Picture: ATU RASEA (The expressions of hopelessness and distrust on their faces says it all)
* Disclaimer: The following opinions expressed are those of the authors’ Shauna Tomkins and Geoff Rashbrooke and are not intended as legal or financial advice.
Statements continue to be made about the FNPF reforms that are simply not true.
Predictably, the termination of the pension scheme has been met with anger and cynicism by those affected who even question the need for reforms in the first place. Many pensioners understand that the new life annuity arrangements are offered at a much lower conversion rate and alternative investments will not generate the returns enjoyed under the old life annuities arrangements. The reason is obvious ù there are no investments available to support pensions at a rate of 25 per cent or even 15 per cent that are of an acceptable risk for individuals or FNPF for that matter. There never were.
Prior FNPF boards, management and successive governments ù elected and otherwise ù failed to implement a proper fix to the problem. This is despite 20 years of warnings by the International Labor Organisation, World Bank, IMF, actuaries and special advisors. The 1999 changes did little to solve the problem. Ironically, subsequent drives to encourage taking the life pension at entitlement only made the problem worse.
Unfortunately, those pensioners most affected by the termination/refund plan will not be satisfied with anything other than the status quo ù no change. While an easy solution may have been to change only conversion rates on future pensions and leave the past pensions alone, to do so continues to discriminate against working members in favour of pensioners and compounds past mistakes. Status quo would mean that members continue to pay for the next 30 years. It means a 25yo in the work force today retires with potentially 30 per cent less because earnings must be redirected to pay these pensions.
The self-interest is understandable and so it is no surprise that mis-statements continue to be made by those who believe that they have the most to lose. The silent majority who will benefit from the changes remains just that ù silent.
Here are the 10 biggest myths about the FNPF reforms.
What’s up with the FNPF now? Front page plus page 3 in the Fiji Times on Wednesday 14th, front page and page 3 again today, Thursday 15th. An we now have one Geoff Rashbrooke in the mix in addition to Shauna Tomkins and Stephen Mason.
1: In Taito-speak we are told that the World Bank, the IMF and the Reserve Bank of Fiji ‘support’ the FNPF reforms. Unfortunately for the FNPF the Fiji Times reporter missed the underlying double-speak of the Taito-babble.
2: On page one today, Ms Tomkins and Mr Rashbrooke are quoted thus…The reforms are comprehensive and address structure, solvency, refocus on retirement, prudential regulation, governance, greater independence from political interference and sound risk management. The reforms are robust and aim to avoid a repeat of current problems.
This quote does not mention the arbitrary cutting of current pensions. It is concerned solely with the restructuring of the administration of the FNPF. It is obvious that ‘refocus on retirement’ refers to future pensioners. ‘Refocus on retirement’ cannot be interpreted to mean ‘focus on cutting current pensions.
The IMF, World Bank and Reserve Bank of Fiji silence is equal to a screaming banshee. Where, in black and white, has one of these institutions declared that the arbitrary cutting of private contributory pensions is advisable? Nowhere. They haven’t and they won’t because the result would be uproar.
Meanwhile, Tomkins, Rashbrooke and Mason can only stand aside while their words are mangled and misreported. Turn to page 3 to the last paragraph of today’s report. It states…”Pensioners are not being victimised although clearly some individuals will feel a greater financial impact than others”. This is reported as if a direct quote from Tomkins, Rashbrooke and Mason, and that is just too hard to believe they said that.
Here’s more Taito-prattle. He says…Whilst we can only learn from our past, we should not dwell on it. Well, here’s a bit of Greypower logic for Taito – unless you dwell on your past you’ll learn nothing from it. Pensioners right now are certainly focussed on their past, many of them kicking themselves for not grabbing the lump sum and running with it. They are caught up in thoughts of ‘if only’.
And he urges those ‘who might be affected to be selfless’. Taito-blab! It is not the pensioners who will need to be selfless – it is their children who will have to support them! Grandchildren? What should have gone towards their education and treats will now be spent on their grandparents; grandparents who are rightfully angry, resentful, and humiliated.
All this Taito-gibbering in the Fiji Times does nothing but confirm that the FNPF board knows that it is WRONG – and several current pensioners, professional money-men, have the figures to prove that. So please, Taito and board, cut the crap? Don’t tell us again that pensions are being cut world-wide – we know they are – they are government pensions, not private pensions held in trust by a fund owned by its members. Stop telling us that you are being ‘fair to all’ because you are patently NOT. Stop telling us that we were enjoying ‘overly generous’ pensions as if you were doling out favours.
Until the board goes public with concrete evidence that the IMF, the World Bank, the Reserve Bank of Fiji, and named ‘actuaries and legal experts’ did indeed advise the arbitrary cutting of current pensions, pensioners will not believe one word of Taito’s gibberish no matter how much he witters on.
Still no sign of Fast Talking High Flying Dave, but Pacific Sun has been using Air Pacific’s Boeing 737 aircraft to service the Nadi – Suva- Nadi route to transport passengers from Nadi to Nausori and back.
The question is what percentage of seats are filled each way, and how much money are we losing, by not using the ATR 42 or the Convair
Since the tortuous FNPF reform began six months ago, the Fund’s CEO Mr Aisake Taito has shown himself to be a Grandmaster of misinformation, confusion and contradiction.
Many pensioners now take most of what he has to say on their FNPF payments and the Fund, with a ladle of salt. By a process of contagion, FNPF itself is also viewed with skepticism. It too cannot be trusted.
The plain truth is that neither management nor the board can get their story straight.
Let us relook at just two of Mr Taito’s recent assertions which reinforce perfectly his credibility problem.
In the light of these statements by Mr Taito, comments in the FNPF’s notorious and mean FNPF Transition Decree require very close scrutiny. Bear in mind these must have been approved by the board.
About two weeks ago Mr Taito said the FNPF was in crisis. Inexcusably Mr Taito did not spell out the precise nature of this. He left fund members to ponder nervously on his meaning. What was the danger? Was the FNPF unstable and ready to collapse? Had another of its investments failed, leading to a heavy loss? Perhaps he was referring to the FNPF’s decision to default on legally secured payments to pensioners? For that is certainly a crisis.
There was no clarification. The crisis evaporated and Mr Taito quickly moved on.
He then decided that the FNPF was acting from a position of strength. As Greybeard has said, this unmistakably projected the FNPF as well able to meet its commitments, including payment of existing contracted pensions. Indeed it has said on numerous occasions that it can continue as it is presently structured for another 40 to 45 years. By that time the pensioners whose lives are being violated and ripped apart now will have been with their Maker for a long time.
Now turn to part 2, clause 4 of the abhorrent Transition Decree. After stating that the current pension arrangements cannot be sustained, it says they “create funding shortfalls with the associated risk of insolvency.”
So the FNPF is taking us back into crisis mode. Mr Taito’s position of strength no longer applies.
The relevant wording of the Decree is in the present tense. That can only point to a clear and present danger of insolvency. For insolvency read bankrupt.
So FNPF where are we? Crisis and collapse or financial strength?
The overarching question is why we have to tolerate such patent inconsistencies from our pension fund, its management and board? This comes down to massive failure of corporate governance by an organisation which bizarrely holds itself up as a model for others. The FNPF is in a complete state of self-delusion. Now, that is a crisis along with the pension default.
Has anyone seen Fast Talking High Flying Dave ?
The Christmas Season Chaos continues, today’s Air Pacific flight from Brisbane was delayed for 14 hours, yet there is no word from the CEO or his high powered USA management team, are they on their Christmas break already?.
Government has invested $23,000,000 of taxpayers money to attract tourists plus they have invested $200,000,000 of FNPF members money, we all expect and deserve better from Fast Talking High Flying Dave Pflieger.
The future tourist numbers to our country depend on Air Pacific giving the best possible levels of service, and it is just not happening.
Now is the time for the FNPF board who have invested enough of our money to purchase the airline outright, to demand action, or better still withdraw the loan facility.
Is it any wonder that many of the innocent and anguished pensioners, who are being so ruthlessly selected for a reduction in income by the Fiji National Provident Fund, no longer trust the Fund? They have lost confidence and trust in the FNPF Board chair, Ajith Kodagoda, and his fellow trustees Tom Rickets, Sashi Singh, Taito Waqa and Tevita Kuruvakadua.
These five must bear the very heavy burden of responsibility for the injustice the FNPF is now imposing on many of its middle and working class members.
The FNPF representative who has attracted most of the anger and despair of the pensioners is chief executive Aisake Taito.
Mr Taito, as the public face and voice of the FNPF, is a catastrophe. His performances at meetings with the FNPF victims were marked by obvious impatience, evasions and arrogance. He contemptuously dismissed or ignored difficult questions and had the hide to remind frightened pensioners that they should not be “personal” about the FNPF’s plans.
Personal? For God’s sake, of course it’s personal when your very own pension fund, that had promised your pension rate was for life, is getting ready to shaft you. The shafting process goes right to the core of an elderly person’s life. In their autumn years their retirement plans, founded on their FNPF irrevocable pensions, are thrown into upheaval.
They face an immediate drop in their standard of living; it is harder for them to put food on the table, pay the bills, meet their medical expenses and their family responsibilities. Those who have obligations to banks and other financial institutions based on their fixed and legally binding lifetime pensions, have been betrayed in a most cruel way.
When a despairing casualty told Mr Taito that he might now lose his home and that the Fund was “ruining our lives” the FNPF CEO appeared unmoved and unimpressed. He showed not a shred of compassion. The complainant was merely told not to make the issue personal. Those in the audience heard this with disbelief. What sort of man was this?
Air Pacific has chartered a Convair from Air Chatham of Tonga for an undisclosed period of time, because the two aircraft purchased by their expert expatriate management from USA have had to be grounded as a result of undisclosed deficiencies, resulting in increased road transportation between Labasa and Savusavu since Pacific Sun are not currently flying to Savusavu.
On Friday December 9th Air Pacifics Hong Kong flight and Melbourne flights were cancelled, plus there were changes of aircraft for the Sydney flights causing more delays and disruptions.
Passengers scheduled to travel on FJ810 from Nadi to Los Angeles on Sunday, December 11, will now travel on Monday, December 12. “This is due to the delayed arrival of a Boeing 747-400 aircraft from routine ‘C’ check in Singapore,” said an airline statement. (This aircraft would qualify for an FNPF pension based on its age )
Air Pacific is also facing further problems as a result of mechanical problems on its only Boeing 767-300ER aircraft in Hong Kong, which is expected to delay a number of flights.
A statement by Air Pacific yesterday advised customers that because of the delayed departure of its B767 from Hong Kong to Nadi because of maintenance issues with a cargo door, several flights to New Zealand and Australia have been cancelled, rescheduled, or passengers re-accommodated on other airlines. “Flight 411 to Auckland was cancelled (yesterday) and those passengers flew to Auckland at midnight last night on a chartered Air New Zealand 777-300 aircraft. The chartered flight departed Auckland at 7:45pm yesterday evening, arrived at 10:45pm in Nadi and returned Auckland at midnight. Arriving Auckland at 04.00; such a nice time to start the day.
All of this spells Chaos for Christmas
Why should we the Greybeards and younger members be concerned?, Well Air Pacific was recently given $200,000,000 of our money.. Question is, why do they need the money now?, is it to secure the purchase of aircraft that Airbus are very anxious to sell, or is it to prop up the day to day expenditure of the airline?.
Fast talking high flying CEO Dave Pflieger has been in charge for well over a year together with a management team from the USA to support him, yet things seem to be going from bad to worse.
The latest song from the Airport Serenaders should be “Where have all the aircraft engineers gone”, or can we look forward to another dubious duet from the AG and his Golden High Flying Boy Dave..
It is little wonder that the Prime Ministers airline of choice is Korean Air
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.
FNPF Pensioner Applicants for Human Rights Redress filed in the High Court on 28th June, 19th August and 30th August 2011.