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
Continue reading →

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.

The following article has been moderated, the original can be seen at Coup 4.5

>http://www.coupfourandahalf.com/

The current Government of the Day is now passing around a Draft FNPF 2011 Decree, for comments from selected people. 

The Draft Decree has references to “codes of conduct” “transparency” “duty” to FNPF Members, duty to become a whistle-blower who will be protected, etc., etc., etc.

But quietly put in all the sections to do with the real control of the money flows, are  clauses which ensure that the “Government of the Day” and FNPF Board can do virtually anything they want to, with the life savings of the workers of Fiji.

The 7 member Board will be all appointed by the Minister.   There will be no direct representatives of FNPF contributors, or FNPF pensioners or  employees or  employers.

The Board will not be Trustees but shall “own” all the assets of the Fund and be free to do whatever they want, establish whatever policies and procedures they want.

Sorry, that’s not strictly correct: the Board will have to implement whatever is required through “a written law” (yet to be written). By whom, did you ask? Ha ha ha. 

The annuity (pension rate) to be paid from the Retirement Income Fund will be reduced to 8.7% single pension rate if you retire at 55 but the rate will slowly rise if you retire later- going up to 12.3% if you retire at 70.

The Board will also be given the powers to vary the annuity as and when they see fit (i.e. no need for elected Parliaments), with frequent advice from actuarial experts (who are how so fortunately guaranteed regular incomes from the FNPF).

And if the “Retirement Fund” makes a “surplus” (why on earth should it?) then the surplus goes to the General Fund, where the Board can dispose of any amount, as they wish.

Stuck somewhere is also a statement that the Board must ensure equity not just between different classes of fund contributors, but also between annuity receivers (i.e. pensioners) and current contributors.  i.e. this is the clause that will be used to reduce existing pensions, no doubt once the new Board has all the new “powers”.

Promontory had recommended that there be a separate Retirement Income Fund solely to pay for the annuities, and the General Fund which would manage the workers savings as they came in.  This made sense for the future.

But the Draft FNPF 2011 decree also recommends (Clauses 86, 87 and 88) the setting up of a strange undefined “Supplementary Fund”.

Read closely the Draft Decree about how this “Supplementary Fund” is to be set up (where the money is to come from), and how the funds are to be used, including, a reference to “a written law” (yet to be written).

Pensioner might ask themselves:  if this Government can trash already existing contracts between the elected Fiji Parliament and pensioners, why won’t it trash any future contract with future pensioners, allegedly governed by the Draft FNPF 2011 Decree?  Indeed, who can trust this Government to keep any contract?

Quiz for pensioners:  will the FNPF 2011 Decree change anything at all at FNPF?

The current FNPF Board and Management has been appointed by the same Government that is drafting this FNPF decree.  Answer “Yes” or “No” to the following questions:
Continue reading →

Revised FLP paper on the proposed ‘reforms’ to the FNPF

The long term viability of the FNPF can be maintained

without making cuts to the current rates of pension benefits.

Besides, pensions are too important a matter to be left to be

decided upon without free and informed public debate and

without considering other available options. Ideally, any

changes that need to be made should be left to a

democratically elected government with the mandate to carry

out such reforms.

Introduction

Years of mismanagement and plundering is threatening the long term

sustainability of the Fiji National Provident Fund, despite the fact that

it collects close to $300 million annually in members’ contribution.

The Fund is now proposing a series of drastic changes recommended by

hired foreign consultants, the most damning of which is a reduction in

the rates of annuity. Any such reduction will be a gross injustice to the

workers of Fiji who have contributed for years in the expectation that

they will receive adequate pension to be able to retire and live in

dignity in their old age.

The current annuity rate of 15% is to be reduced further to 9% under

the proposals now being considered by the Fund. Should this happen,

the ordinary worker will be lucky to pick $50 a week on retirement –

hardly a liveable payout – and well below the current poverty line of

$185 a week! It is to be noted that the annuity rate has already been

progressively trimmed from 25% to 15% in the past 10 years.

If the Fund’s viability is being threatened today, the workers should

not be penalised for it. The State must take full responsibility for the

current crisis at the FNPF – largely as a result of questionable

investment activity and failure to conduct timely sustainability reviews

of the Fund. A number of very large poorly or negatively performing

investments were made with the express approval of successive

governments and were influenced by political considerations rather

than the interests of the members of the Fund. As such the State must

be held accountable. (More on this later in these submissions).
Continue reading →

Commentary on Budget Announcement re ‘Civil Pensioners or those who fall outside the FNPF Scheme’- is this ‘windfall’ fair?

Dr Shaista Shameem

The Budget Speech on Fiji National Provident Fund Pensions was a shocker. Pensioners supporting the David Burness v FNPF and AG  case are still reeling from the implications of it for them, that is, having their FNPF contracts cancelled without compensation.

What astonished most pensioners, however, was the part of the budget speech titled ‘Pensioners’, on page 19 of the speech.

This part is quoted in full below:

‘Regarding civil pensioners or those who fall outside the FNPF scheme, they will receive an increase on their existing entitlements. The last time these civil pensioners received an adjustment it was for 1 percent, back in 2005.

This time, former civil servants, their spouses, former members of the disciplined forces, war veterans, retired judges, former prime ministers, ministers and former members of parliament will all receive a 20 percent increase on their existing entitlements’ (my emphasis)

From the perspective of the Burness case already in court, consider what this provision means. It seems judges who retire will get a refund of their FNPF balance (hard cash) plus a 20% increase in their judicial pensions.

An example may illustrate our disquiet in relation to this provision better: if Judge Smith had worked as a lawyer before being appointed a judge, he or she would have been a member of FNPF and therefore entitled to a FNPF pension. If Judge Smith had chosen to take the pension option, he or she would now be entitled, under the new decree, to both a refund of his or her FNPF balance, as well as a 20% increase in judicial pension upon retirement as a judge.

No one knows how many of the judges are members or beneficiaries of the FNPF pension scheme but the public perception that judges in this category will receive a windfall at the expense of other FNPF pensioners cannot be dismissed. FNPF pensioners’ pensions, on the other hand, are not inflation adjusted.

The possible implications of a decree bequeathing such a windfall on the hearing of the Burness case cannot be ignored or dimissed.  

A landmark House of Lords case is pertinent in this regard: In Re Pinochet Judgment of 17^th Decemner 1998 and 15^th January 1999, where the Law Lords said…’it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest’.

Public perception in this instance, in which a FNPF pensioner’s pension is to be reduced significantly whereas judicial pensions are to be increased by 20%, all by decree, is surely something to consider quite seriously in light of the aforementioned Re Pinochet decision.

Under these circumstances what would be the judicial attitude towards the strike out application currently being made by the FNPF and Government in the Burness case?