AUSTRALIA’S pursuit of Julian Moti, QC, has come to a shabby end in the High Court after eight bizarre years. The Fiji-born Australian lawyer has now averted trial on child sex charges because, said the court, his deportation from the Solomon Islands in 2007 was so bungled by Canberra that any trial would be an abuse of process.

A new government in Honiara anxious to rid itself of a man just sacked as attorney-general, declared Mr Moti “an undesirable person who has conducted himself in a manner prejudicial to the peace, public order, public morality, security and good government of Solomon Islands” and bundled him onto a plane for Brisbane.

They jumped the gun. Local law gave Mr Moti seven days to consider an appeal. The mistake was Honiara’s but Canberra connived in it by providing the necessary paperwork for Mr Moti and his guards to land in Brisbane. So a chase that cost a fortune, soured this country’s relations with both PNG and the Solomons and then tied up Australian courts for years has come to nothing.
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Posted at 03:54 on 07 December, 2011 UTC

The New Zealand Law Society says the Fiji interim regime’s latest decree goes against basic principles of the rule of law.

The Fiji National Provident Fund decree regulates changes to the country’s main pension scheme, and does not allow anyone to challenge its provisions in court.

It also gives the Attorney-General the power to stop any challenge already underway.

The chairman of the society’s Rule of Law Committee Austin Forbes QC says there are isolated and sometimes justifiable no-challenge provisions in other countries including New Zealand.

He says the catch-all nature of the Fiji decree is indefensible.

“That’s a breach of the accepted principles of the rule of law that legislation does not take away existing rights which are in the form of a current court proceeding that’s already been initiated. Secondly on a broader level I’m afraid it only demonstrates the continuing erosion of the rule of law and indeed democratic values in Fiji.”

Mr Forbes says the decree further threatens the independence of judges in Fiji.

News Content © Radio New Zealand International

Dear Mr Kodagoda & Associates

I write this time not about numbers and changes to FNPF but to ask just what sort of men you are? 

I sent you all an email on 24 November 2011 expressing my deep concern about  one of your pensioners, whom I had learned  was contemplating suicide because of the impact the changes on FNPF would have on him.  I was deeply concerned about him.  I thought you should be aware of this as it illustrated graphically the potential human impact the proposed changes to FNPF may have on some pensioners. 

But sadly not one of you responded, expressing concern, asking if you could help, offering advice or assistance, suggesting medical help or counseling, seeking help from a priest, the Church.  No….. nothing….just silence……nothing but silence from all of you.  Some of you know me personally, you could have phoned, you know my contacts.  And those of you I don’t know personally, you could have tried to contact me, after all Suva is not a large place.

Don’t you have any compassion, care, or  concern for the well being of your pensioners?  Words fail me…………..couldn’t any one of you have shown some concern………… even just a little bit?

Or is that you are gagged so much that you are stopped from showing even basic concern for your pensioners?

Look in the mirror, and reflect.  You could and should have done better. 

What an appalling indictment all this is on you six gentlemen as a whole.

You should be ashamed.  Truly ashamed.

Yours sincerely
RG McDonald
(Pensioner)

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.

Shaista Shameem (centre) at the UN Expert Commission with members Bhagwati from India (left) and Yokota from Japan (right). [Reuters]

AUDIO from Pacific Beat

Fiji’s new decree unprecedented: lawyer

Created: Fri, 02 Dec 2011 21:55:03 GMT+1300

Last Updated: Fri, 2 Dec 2011 17:21:00 +1100

A Fijian lawyer has condemned a new decree that will give the Government power to end court challenges over superannuation cuts.

The Fiji National Provident Fund Transition Decree sets out new, complex schedules for pension cuts that the government says are necessary because the superannuation fund has lost money.

But lawyer, Shaista Shameem told Radio Australia’s Pacific Beat the decree goes against the basic principles of international law.

The proposed cuts have prompted legal action by Ms Shameem’s client, 75-year-old retiree David Burness, who is facing a 64 per cent reduction in his monthly income.

Ms Shameem says the government’s decree is unnecessarily heavy-handed, and was issued so Mr Burness would lose his case.

“It would have meant a serious loss of face, not only for the Fiji National Provident Fund Transition but also the attorney general, the drafters and the Government on a whole,” she said.

“All case law internationally shows that pensions are a human right and cannot be removed by the government. 

“Under the circumstances, had we had been allowed to proceed through the court system, we would have won this case.”

• Tags:
• fiji
• superannuation
• programs-and-initiatives

courts-and-trials

I normally do not react to anonymous criticisms of what I write. I will respond to this one- because the FNPF management has also similarly selectively quoted me from what I said in Parliament (all there in Hansard of 13 August 1998, pp. 499 to 505). 

The Fiji Government in 1998 Parliamentary had proposed to gradually reduce the single pension annuity rate from 25% to 15% by one percentage point per year.  This is what I said (and the Hansard shows that I was even attacked by my own NFP colleagues in Parliament then): 

“Once you realize that the funds are not sustainable at 25% and you conclude that, through actuarial studies that the real sustainable rate for the funds is 15% of your final balance to be given as pension, why do you not bring in that change straight away because if it is not sustainable, it is not sustainable. You are saying that those young people who are working now, and who will be working over the next ten years, will be contributing out of their income to maintain us older people at 25 percent or 23 percent, but when it comes for them to retire they will only be getting 15%”. 

It was my professional view then, as now, that the annuity rates above 15% should not have been offered by the FNPF Board, and Parliament should not have approved that change.  But they did. 

1.  These single annuities above 15% were 

            (a) good business gambles for those who lived on long enough 

            (b) bad business gambles for those who died early; 

            (c) bad business decisions by the FNPF Management and Board then (who may have had conflicts of interest), and Parliament which approved that recommendation. 

2.  But once these rates above 15% were verified by Parliament in the Laws of Fiji, and offered by FNPF quite explicitly on the OP-9 form, they became lawful  contracts which cannot be broken. 

3. Nowhere in my 1998 contribution did I say that existing contracted pensions above 25% should be arbitrarily reduced to 15%. 

4. The current FNPF/Regime proposals are about further reducing the annuity from 15% to 9%
            (a) without the approval of the Fiji Parliament,

            (b) with the public being denied all the actuarial studies and reports on 
                FNPF investment disasters 

            (c) unlawfully reducing the existing annuities already contracted by FNPF. 

To try to selectively quote my 1998 parliamentary views to justify the current actions by the FNPF and the Regime (as even FNPF management has often attempted) is thoroughly dishonest.

The President has signed the unlawful “Fiji National Provident Fund Transition Decree” which trashes lawful contracts between FNPF and pensioners, takes away their basic human rights to personal property, and removes their basic human right to take their just FNPF grievances to court (while it shamelessly claims that no one’s human rights are adversely affected by this Decree).

The FNPF Transition Decree claims in Part 2, that: 
“the principal object of this Part is to ensure that the arrangements for the provision of annuities by the Board are sustainable, non-discriminatory, and do not involve cross subsidy of one group (pensioners and annuitants) by another (FNPF members).”

Such phrases are also in the draft FNPF Act, and the drafters have no idea (or they don’t care) how internally inconsistent all these phrases are even within their Decrees (elaborated below).

The Decree makes a pathetic attempt to justify itself by referring to IMF, World Bank, ILO and “actuarial experts” who we know all recommended reductions of future annuities, but none recommended the breaking of lawful contracts and basic human rights to property nor of denying recourse to justice for existing pensioners. 

These agencies need to be publicly challenged as to whether they lend their support to this unlawful Decree which undermines laws of contracts and fundamental human rights of pensioners in Fiji.

The Decree has five Parts:
Part 2:  Terminates the current pensioners’ claims
Part 3:  Share investment scheme (not commented on here)
Part 4:  Protections (what a farce).
Part 5:  Regulations (not commented here)
Part 2:  Trashing lawful contracts
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Here for the Pensioners , or here for themselves ???

It is time for ALL members and Pensioners to call for the immediate resignation/dismissal of these individuals who are not putting pensioners interest first.It was never the intent of the FNPF that the fund should make profit from pensioners. Under CEO Aisake Taito this has changed, as the above figures clearly indicate, the fund is paying minimal rates to pensioners while skimming profits for themselves.