Rashbrooke’s Indifference to Rule of Law and Justice

Geoff Rashbrooke, one of the actuaries advising the Fiji National Provident Fund in 2011, has strangely resurfaced in Fiji (Fiji Times article August 10, 2024) alleging that “any degree of reinstatement of former pensions by the FNPF… could only be at the expense of ordinary members”.

Rashbrooke glosses over all the illegality with which the Bainimarama Government broke the lawful contracts of the 2012 Pensioners turning their retirement into a time of uncertainty, emotional pain and financial loss for their families and dependents.

He totally ignores the illegal Decree throwing out the Burness case already being heard in court, thereby denying the 2012 Pensioners their basic international human right to go to court with their just grievance.

Let us be clear that the 2012 Pensioners are simply asserting the legality of the contracts offered by FNPF itself on Forms 9-OP, and hence the legal (and moral) obligation on the FNPF to abide by the terms, then in 2012 and today.

If Rashbrooke was either in 2011 or 2024 giving his actuarial advice to FNPF on what the pension rates should be for those who were retiring in future, no one would give a hoot.  But that is not the case here: he is giving advice on 2012 pensions already agreed to by FNPF and being paid.

It is appalling that Rashbrooke selectively ignores the 2011 final advice given to FNPF by senior actuaries Tomkins and Mason (of the company Promontory) that their recommendations for reduced pension rates were for future retirees, and not those already on pensions (I refer to them as the 2012 Pensioners) which they stated would be “difficult” to reduce under contract law. 

If Rashbrooke’s ill-considered advice supporting the consequences of the Bainimarama regime’s illegal breach of contracts of the 2012 Pensioners’ contracts is accepted by FNPF, it would also undermine the Coalition Government’s current efforts to restore Fiji’s broader Rule of Law undermined by the cancers left by the Bainimarama Regime and Government. 

Sadly, Rashbrooke in 2024 is displaying the same contempt for Fiji’s rule of law that he had in 2011, a contempt that would never be tolerated in his current country of residence, New Zealand or original home United Kingdom.

This article rebuts Rashbrooke’s allegations, devious and warped reasoning.

It also highlights some FNPF facts on the collapsed “Pension Take Up Rates” (Graph 1 below) and reality of declining numbers of pensioners (Graph 2 below), that Rashbrooke selectively and conveniently chooses to ignore in 2024, because they do not fit his agenda and “advice” to FNPF.

The legal contract Rashbrooke does not understand

I remind that Rashbrooke’s advice to FNPF in his 2024 Fiji Times article: 

1. refers to that very small group of 2012 Pensioners who had already accepted contracts on the 9-OP forms they signed and were already receiving pensions which had been freely offered by FNPF itself;

2.  The 9-OP forms specified the dollar amounts based on percentages determined by the lawfully elected Government of Fiji, led then by Sitiveni Rabuka (who is also Prime Minister today). These percentages were approved also by the Opposition Parties and their representatives in both Lower and Upper Houses of the Fiji Parliament, and therefore made law;

3. The 9-OP forms guaranteed that these 2012 Pensioners would receive these pensions (dollar amounts stated) until they passed away;

4.  The 9-OP forms stated clearly that once the pensioners had signed up on the 9-OP forms, they could not change the terms. i.e in fairness, neither should FNPF be able to do so, but it did.

Why does Geoff Rashbrooke not understand or respect the legal and moral basis of the 4 statements above, together representing the 2012 Pensioners basic human right to property, promised in a lawful contract, by the largest publicly owned financial institution in Fiji, bigger than all the banks put together?

Why does Rashbrooke choose to ignore the fact that Fiji’s Minister of Finance (Professor Biman Prasad) and the Coalition Government have fully recognized the illegality of the reduction of the 2012 pensions and made partial reparation using Fiji taxpayers’ funds?

Rashbrooke’s 2012 Article: trashing Fiji law

To grasp the extent of Rashbrooke’s biased and warped thinking, the public should read his 2012 presentation to an International Actuaries Association event in Hong Kong, available here:

http://www.actuaries.org/HongKong2012/Papers/MBR12_Rashbrooke.pdf

Rashbrooke acknowledged in his 2012 paper that a 2012 Pensioner (he did not name David Burness) had a legal case in court for breach of contract, but he honestly admitted “This is a legal argument and one on which the author is not qualified to give a definitive opinion.”  Why did Rashbrooke leave out these key words from his 2024 Fiji Times article?

Instead Rashbrooke went on to falsely allege in his 2012 Paper that because “the pensions have been returned without penalty and the pensioners have enjoyed much better than average investment returns, then a legal challenge was not considered likely to succeed.”  

This legal opinion was from an actuary who has just admitted that he was not qualified to give a definitive opinion on the legality of the case. 

Furthermore, Rashbrooke’s phrase “the pensions have been returned without penalty” would be laughable were the consequences not so painful for those 2012 Pensioners given a lump sum instead of their pensions for life, as I have demonstrated in my earlier Fiji Times article (July 6, 2024).

Rashbrooke then alleges in his 2024 Fiji Times article that “In relation to the assertion that pensioner were protected by contract, entitlements look to have arisen through statute, not business transactions. A legal case would seem unlikely to succeed.” Rashbrooke does not ask himself the logical question: why would the Bainimarama Regime impose a Decree to stop the 2012 Pensioners’ legal case being heard in court, if it was “unlikely to succeed”? 

Rashbrooke’s questionable and euphemistic thinking can be seen in the way he describes the draconian Decree stopping the legal case. He airily stated  “The new law provides protections against future legal challenge, but that was a matter of expedition [sic] rather than any concern about the legal foundation.”.

Rashbrooke’s warped thinking is evident when he suggests “Conceptually, it would have had the same effect had the FNPF established a new entity for members and transferred to it the member balances and the required solvency margin. This would have left the current pensioners to make their own arrangements for dealing with the insolvency.” 

How incredible that Rashbrooke was theorising that FNPF could just as well have created a new entity to which would be transferred all of the “member balances and the required solvency margin” while leaving the 2012 Pensioners to deal with the remaining “insolvency“? i.e. high and dry.

How dare Rashbrooke allege that pensioners’ legal case against FNPF’s breach of the 9-OP contracts were mere “assertions” and based on mere “statutes” not “business transactions”? Is Rashbrooke suggesting to the Fiji public that “business transactions” should be superior to Fiji’s “statutes” (laws)? 

How dare Rashbrooke ignore that the original “statutes” (or laws set by legislature) setting the pension rates were decided by the highest authority in Fiji- the democratically elected Sitiveni Rabuka Government in 1998, and made law by the unanimous vote of the Fiji Parliament (Lower and Upper Houses, Government and Opposition)?

Instead of acknowledging the sacred authority of the Fiji Parliament and its laws (statutes), Rashbrooke 12 years later again gives his opinions why an illegal Bainimarama Regime and the FNPF Board were correct in illegally breaking the contracts of the 2012 Pensioners and reducing their pensions or forcing them to take away “a lump sum”, both resulting  in a large financial loss for them. 

Rashbrooke is once more callously arguing that FNPF should not today be recompensing these 2012 Pensioners.

We need not debate the following

We are not debating whether some of the 2012 Pensioners were doing well (as some were) but some were also dying early just as many pensioners are doing today.  But that was the “luck of the draw” that FNPF had itself created and offered, not any of the pensioners’ making.

We are not debating whether the FNPF could sustain the 2012 Pensions. They could.  Even Rashbrooke acknowledges that ILO advice in 2011 had said they could. 

Pensioner Jackson Mar’s numerous detailed submissions over the last twelve years have clearly established that FNPF had more than adequate funds for the liability, to which the FNPF management have never bothered to answer (shame on them).

Pensioner Ross McDonald had even pointed out in a letter (14 June 2011) to CEO Aisake Taito that Section 10 of the FNPF Act Cap 219 clearly stated  that “If the Fund is, at any time, unable to pay any sum which is required to be paid under the provisions of this Act, the sum required shall be advanced to the Fund by the Government and the Fund shall, as soon as practicable, repay to the Government the sums so advanced.”   

CEO Aisake Taito had declined to reply to this legitimate observation. So much for FNPF’s annual boasts of being accountable and transparent to Members.

Rashbrooke in his 2012 paper also acknowledged that this ultimate Government guarantee of FNPF was in the legislation but observed “this section has never been called on or otherwise tested.”  

But then Rashbrooke outrageously asserted that “In the event that it became apparent that a claim might be made in circumstances where the advance could not be repaid, it is not unreasonable to assume the government would not accept this outcome”. 

Why on earth should Rashbrooke imply likely dishonesty on the part of the Fiji Government, especially given that it has totally controlled the FNPF Board since inception.

We note also that the Fiji Government has also derived massive benefits from FNPF such as generous low interest loans on tap (that comprise a large chunk of Fiji’s Public Debt) or crucial loans to key enterprises like FSC, FDB and Fiji Airways when they were struggling. The Fiji Government has never reneged on its financial guarantees, as Rashbrooke alleges without evidence that it might.

The Criminal Illegality that Rashbrooke ignores

While Rashbrooke is making many allegations that the 2012 reduction of FNPF pensions (rates and dollars) were justified, he very conveniently ignores the unpleasant draconian facts and “elephants in the room” staring into his face:

(a) He totally ignores that the 2012 reduction of pensions and “breach of contract” was instigated by the illegal Bainimarama Regime which had overthrown the democratically elected lawful government of the late Laisenia Qarase (possibly to stop prosecution of some powerful individuals for the deaths of fie CRW soldiers in military custody); 

(b) Rashbrooke totally ignores that the legal Burness case which was being heard by the judiciary was then thrown out by the illegal Decrees of this same illegal Bainimarama Regime, thereby

(c) Rashbrooke totally ignores that these 2012 Pensioners were denied their basic international human right to go to court for a perceived grievance (and that many of them have died between 2012 and today, including the late David Burness and his wife Talei).

If Rashbrooke were to ignore (a), (b) and (c) above in New Zealand or UK I suspect that this professional reputation would be in tatters. 

Rashbrooke merely noted in his 2012 Hong Kong article that “one pensioner” (David Burness is not named) had “made application to the High Court in a test case pleading that his human rights would be violated should the government attempt to change the rules. The Court did not immediately dismiss the case but granted the plaintiffs time to better develop pleadings.” 

Rashbrooke then conveniently ignores that the Bainimarama Regime had thrown out the Burness legal case by merely stating in his 2012 article “The new law provides protections against future legal challenge, but that was a matter of expedition [sic) rather than any concern about the legal foundation.” One presumes that Rashbrooke meant “expediency” in his 2012 article. 

Rashbrooke clearly thinks that he can get away with his kind of nonsense in Fiji, which is currently agonizing on how to resolve the constitutional mess in the rule of law left to the elected Coalition Government by the previous Bainimarama Government.

Rashbrooke ignores the collapse of the Pension Take Up Rate

Rashbrooke’s selective use of statistics is further demonstrated by his refusal in 2024 to continue a an extremely important graph that he had in his 2012 paper for the Actuaries event in Hong Kong, for the “Pension Take Up Rate”.

This graph showed clearly that the  “Pension Take Up Rate” had dramatically declined from a high of 37% of those retiring in 2004 to just above 15% in 2011.

All actuaries’ reports have stated that any decline in the Pension Take Up Rate made it easier to fund the pensions even at the rates prevailing in 2011.

But my Graph 1 here shows that since 2011, the Pension Take Up Rate has been falling even further down to below 5% for the last five years.

Why then did Rashbrooke not comment in his 2024 Fiji Times article that the Pension Take Up Rate has collapsed from 15% in 2011 to 3.7% in 2023?

How appalling that neither has FNPF ever expressed concern that while FNPF is supposed to be a “Pension” Fund, more than 96% of the retirees are not taking the pension option but the lump sum.

How appalling that the FNPF Annual Reports no longer give the graph that I give here, which they used to give in earlier Annual Reports?  Who made that decision to leave out this graph from the Annual Report? Did any of the Board Members object?

Rashbrooke also refuses to acknowledge that the numbers of pensioners has not been increasing dangerously as the fearmongers had alleged in 2011. In fact the number of pensioners had dropped dramatically in 2012. It has dropped even further in 2023 and there is little prospect of it increasing dramatically into the future.

But pointing out these two salient negative trends would not suit Rashbrooke’s fearmongering narrative that the FNPF should not pay the reparations to the 2012 Pensioners.

It is dismaying that the new FNPF Board also declines to ensure that such important statistics and graphs are clearly presented in the Annual Reports, while any amount of useless information and colourful photos occupy much of the space.

Any FNPF views on Rashbrooke?

To any outside observer, it would seem that actuarial expert Rashbrooke is trying to curry favour with FNPF management and Board by arguing against any restitution to the 2012 Pensioners.

I call on the Chairman of the FNPF Board (Mr Daksesh Patel and new members Adish Naidu, Attar Singh, Joweli Taoi and Ms Susie Waqabaravi) and the FNPF Management to inform the Fiji public whether 

(a) they were aware of Rashbrooke’s intended article for Fiji Times

(b) whether they quietly agreed (wink and a nod) to let him go ahead, despite the sensitivity of the issues currently under consideration by the FNPF Board and the Minister of Finance.

I remind the FNPF Board of the many decent and responsible Fiji citizens among the 2012 Pensioners who have publicly requested justice. They include Jackson Mar, Ross McDonald, Isake Komailevuka, Professor Vijay Naidu, Dr Esther Williams, Dewan Chand, Amraiya Naidu, Rishi Ram, Daniel Fatiaki. and many others.  Sadly, many have passed away already without justice being done to them and their families ((like the brave late David Burness and his late wife Talei). 

Hope for Rule of Law in Fiji

Thankfully, there is some hope that the rule of law will be fully restored in Fiji with full justice delivered to the 2012 Pensioners.

It is serendipity that the current Prime Minister (Sitiveni Rabuka) is the same person under whose Government the original FNPF statutes were passed (whatever may be Rashbrooke’s apparent indifference to “statutes”). Rabuka could come full circle and re-establish those pensioners rights which his Government had determined twenty five years ago.

It is not serendipity that the FNPF is in a strong financial position today, because illegally reducing the 2012 Pensions over the last thirteen years has put hundreds of millions of dollars stolen from the 2012 Pensioners into its kitty all accumulating at compound interest to more than $800 millions today, as Jackson Mar has amply pointed out.

Sadly, the public have never held to account that unethical 2012 FNPF Board and especially its Chairman then whose business links would probably not bear looking into for possible conflicts of interest with the Bainimarama Regime and donations to the Fiji First Party.

But I am sure that the FNPF Board today will have the full support of the Minister of Finance and Deputy Prime Minister (Professor Biman Prasad), if they were to try to correct this terrible historical blot on FNPF’s  reputation left by a previous unprincipled FNPF Board and management. 

The Minister of Finance has already proven his good will and compassion by using taxpayers’ funds to restore the pensions from 1 August 2024 of those who had been forced to accept lower amounts in 2012. There is more to be done for those who had been forced to take lump sums also implying even larger losses for them. Of course, there is also the need to restore the “back pay” for both groups of 2012 pensioners.

May I also suggest that current FNPF Members demand at the next talkfest organized by FNPF Management around the country, that at least 3 members of the FNPF Board be elected by them. The Board Members should also be totally accountable only for the Members’ interests as had been recommended in 2011 by the Promontory Report to FNPF, but conveniently ignored by all FNPF Boards and Governments since then.

Disclosure: Professor Wadan Narsey is one of the 2012 Pensioners and he also helped Dr Shaista Shameem in 2012 to prepare the David Burness case, which was thrown out by an illegal Bainimarama Regime Decree.