A petition to the Prime Minister Commodore Voreqe Bainimarama calls for an independent inquiry to consider the “issues, contradictions and discrepancies” surrounding the Fiji National Provident Fund’s new pension scheme.

The petition is signed by pensioners who say their monthly payments have been unjustly reduced. About 3600 of them will be affected.

They believe they have been discriminated against and that their fundamental rights have been breached.

The petitioners described the Transition Decree that gave effect to pension changes as “undemocratic” and “iniquitous”. Its provisions and effects were “shocking”.

In addition to many pensioners, petition signatories include supporters of their cause, current FNPF members and a number of leading citizens. Among them are former prime ministers Laisenia Qarase, Mahendra Chaudhry and Sitiveni Rabuka. Taufa Vakatale, Fiji’s first female acting prime minister and a current constitutional commissioner, has signed, along with Mick Beddoes, who served as leader of the opposition. Also signatories are Mere Samisoni, a backbencher in the last parliament and Poseci Bune, previously a Minister in Commodore Bainimarama’s government and administrations led by Laisenia Qarase and Mahendra Chaudhry.

Mr Amraiya Naidu, a retired senior civil servant and ambassador, is a signatory with other former senior government officials. Rev Akuila Yabaki, chief executive of the Citizens Constitutional Forum has signed; so have social justice advocate, Father Kevin Barr, and chief executive of the Consumer Council of Fiji, Ms Premila Kumar.

The petition signatures are complemented by on-line endorsements on the pensioners’ website.

Pensioner and petitioner Talei Burness delivered the petition today to the Prime Minister’s office. She was accompanied by fellow pensioners Waqa Ledua, David Eyre and Pratap Singh.

Mr Singh and Mr Ledua joined pensioner spokesperson Ross McDonald in releasing the document to the media.
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Why the Burness/Shameem case is not likely to be heard
Professor Wadan Narsey February 2012

In August 2011, upon request by lawyer ShaistaShameem for the David Burness case,  I provided a statement of my assessment of the proposal of the Fiji National Provident Fund Board to reduce the annuity rates of existing pensioners.

Despite being postponed from last year to February 8 of 2012, the legal case has not been heard, and no date is being set for the hearing- no doubt a consequence of the FNPF Transition Decree (see the last section of this article).

The pensioners may as well have an idea of what was presented in that Statement for the Burness/Shameem case, as it may explain why the legal case is not likely to be heard: the FNPF Board does not have a legal leg to stand on, whatever may be the horrendous legal and consultants’ fees they are paying, using our savings.

There were four questions pertinent for the Burness/Shameem case, which I attempted to answer in my Statement:

Question 1      Can FNPF pensions be legally reduced?

To read the answer and the whole paper click on the following link:

Narsey Statement 2012 Feb 21 a 

PRESS RELEASE February 15 2012 

David Burness and other pensioners who are taking the Fiji National Provident Fund and the Attorney General to court over FNPF’s proposed pension cuts are fully supporting the petition to the Prime Minister to review government’s decision to slash FNPF pensions on March 1^st 2012.

Lawyer for David Burness and Others in the court action, Dr Shaista Shameem said that her clients were supporting the petition to the Prime Minister because their hearing date of 8^th February had been cancelled by the Court and no new dates had been set for the case to be heard.

She said her clients were disappointed with the High Court for not informing them or their lawyer about a new date for the hearing.  She said it was crucial that the case was heard before the new Decree slashing her clients’ pensions came into effect.

Daily telephone calls to the High Court Registry on the proposed date for the hearing were answered with a mere ‘we will let you know’ which is not satisfactory, Dr Shameem said. Her clients had a right to be heard without delay, especially when the February 8^th hearing date had been cancelled without explanation other than information given informally that the judge dealing with the case, Justice P. Hettiaracchi,  had not yet returned from his leave.

Apparently Justice Hettiaracchi returned to Fiji last weekend but no further communication was available from the court on the status of Burness and Others’ applications for human rights redress. David Burness has now been joined by 13 other applicants to claim a rights violation in relation to their pension cuts.

Dates for filing of documents by Burness, FNPF and the Attorney General were set by the court in October 2011. However, neither the FNPF nor the AG met the deadline given by the court for filing their documents. No documents have yet been filed by the AG.

Dr Shameem said that the entire court process for the Burness case was both confusing and detrimental to her clients who had been praying for justice from the court.

Her clients were disappointed with such silence from the court system.

By Dr Shaista Shameem, Counsel for David Burness

In case pensioners had missed it, Decree No 51 FNPF Transition Decree was released today to the public, backdated to November 25^th –D-Day (Disaster Day) for pensioners.

Most of the initial sections of the Decree contain the usual indecipherable language which drafters of Fiji’s pension decrees like to employ for no other reason than to confuse and frighten elderly people. The FNPF decrees are a death sentence for many who will no longer be able to afford even the most basic of medical care when they need it most. I am very glad my parents are not alive to witness this total violation of the rights of old people and destruction of their limited means.

Part 4 of the Decree is where the real sting lies. Titled ‘Protections’ (it clearly means protection of the government from civil suit rather than protection of the rights of people), this part of the decree gives, among other things, power to the Attorney General or his appointee to tell the court, tribunal or other judicial mechanism to terminate a proceeding or any challenge to the new FNPF decrees.

In all my experience as a litigator and practicing lawyer, I don’t believe I have ever seen a provision similar to section 11 (6) of Decree No 51, which states as follows:

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

This provision, in layperson’s language, says that if the Attorney-General makes an application to the court to terminate a proceeding in relation to FNPF decrees the court must (note the mandatory word ‘must’) issue a certificate to state that the proceedings have been wholly terminated. By this provision, the AG of Fiji is directing the court to issue a certificate of termination for challenges to the FNPF decrees. As everyone knows, the Burness case is one such challenge.

Section 11 (6) of the Decree is direct interference by the AG with the powers of the judiciary. He can tell the court to terminate the Burness case in which he is a party- the AG is the third respondent. This is evidence of abuse of power by decree. Will the High Court comply with such an application by the AG? Courts, historically, have been quite creative when it comes to disregarding executive (non parliamentary) interference with its jurisdiction, as the landmark Anisminic case showed.

Further to this, the new decree has pronounced, by way of section 11 (1) that the decree is ’not to be taken to be inconsistent with a human right or similar right’, and section 11 (2) states that the decree is ‘not to be taken to provide for a deprivation of property of anyone’. Such drivel is decreed in the face of all international case law to the contrary.

Obviously, the drafters of the decree think they can decide what constitutes (God-given) human rights and what does not. If section 11 of Decree No 51 were not so tragic in its effect, it would be laughable. The drafters and policy-makers clearly did not attend the workshops convened by the Fiji Human Rights Commission during the glorious days of the 1997 Constitution which, in Chapter 4, represented the decision of the people on definitions of human rights.

Such Donkey-Kong type of law-making emanating from the AG’s Office does not augur well for Fiji’s future. 

To read the Decree in full click on the following link > FNPF transitional decree

Counsel for David Burness and others in the multiple action against the Fiji National Provident Fund and Government’s decision to make substantial changes to pensions already granted to pensioners has requested the Chief Executive Officer Aisake Taito to stop insulting her clients in public meetings. Taito has referred to her clients and pensioners as being ‘well-off’ and beneficiaries of ‘overly generous’ pensions at the expense of FNPF members.

Dr Shaista Shameem, whose challenge on behalf of David Burness and others is already in court, said that pensioners receiving pensions from FNPF are elderly, and have no other source of income. Many are in ill-health. They were told when they retired that the pensions they would be getting would be given to them for life. They did not make any other arrangements for alternative sources of income and many are past the age when they can find work. These pensioners had a contract with the FNPF, and it is the court that will determine the outcome of the case, not Mr Taito.

For Mr Taito to arrogantly threaten to reduce the pensions of those who do not accept the FNPF and Government proposal by the end of the year when a case challenging this decision on human rights grounds is before the courts, is simply irresponsible, ruthless and dictatorial. Such announcements insult the judicial mechanisms of Fiji.  

Dr Shameem said her client and others seeking the court’s decision will continue to pursue their case in court irrespective of the announcement. The proposal of the FNPF is unacceptable to Mr Burness.

In the meantime, Dr Shameem said Mr Taito should stop throwing insults at her clients in public. As a public officer whose salary is paid by tax-payers, including former tax-payers, Mr Taito should exhibit more decorum in public meetings.

The Essential National Industries (Employment) Decree: AG’s Media Statement on 10^th September is a Mis-use of Human Rights Principles and Law

Press Release by Dr Shaista Shameem
Former UN Special Rapporteur and Human Rights Expert; former Director and Chairperson of the Fiji Human Rights Commission.

 The enactment of the Essential National Industries (Employment) Decree No 35 of 2011 on 29^th July is fundamentally inconsistent with the foundations of the Employment Relations Promulgation 2007 (ERP), and jettisons the comprehensive public consultations and consensus-building that the Employment Relations Bill involved. By so doing Decree No 35 also has the effect of expressing the State of Fiji’s disregard of the International Labour Organization’s Conventions 87 and 98 which it has ratified.
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Counsel for David Burness, Dr Shaista Shameem, says that the advertisements placed by Fiji National Provident Fund in the newspapers in four (4) parts over the past four (4) weekends have utterly failed to convince her client and others in the multiple action against the FNPF and the Fiji Government that the intended cuts to their FNPF pensions are based on sound principles of integrity and good faith. David Burness is taking the FNPF and Government to court in response to proposed cuts to his pension.

Dr Shaista Shameem said the FNPF advertisements show that the proposals put forward by FNPF are politically or personally motivated since the pensioners selected for the proposed reductions are handpicked. The reductions will apply only to select pensioners who are being deliberately targeted for reasons best known to FNPF and Government.

She said that in the most recent advertisement published in the Fiji Times of Saturday September 3^rd , the FNPF describes the pensions awarded to her clients as a ‘windfall’ when it was nothing of the sort. A ‘windfall’ is like an unexpected gift, which the FNPF pension never was, since it was always awarded on the basis of proper calculation at the time of retirement, says Dr Shameem. The FNPF advertisement was therefore deliberately misleading. She says FNPF needs to get its act together on the terminology it uses in public advertisements because, in using certain words without knowing what they mean, it is misrepresenting the issue to the people of Fiji.

Dr Shameem says that FNPF advertisements were not able to provide a single lawful reason or shred of evidence why the pensions of some pensioners should be reduced. FNPF has therefore failed to convince her clients that such proposed reductions are legitimate. All it has done is to instil a deep sense of fear in a small group of pensioners that FNPF and Government can target anyone they like for discriminatory treatment just because they, seemingly, have the power to do so in the present political climate. This shows arbitrary action, and lack of good faith on the part of FNPF and the Government towards elderly people in Fiji who have earned the right to their pensions. Such fear and insecurity faced by pensioners will have a domino effect on the rest of the adult population, most of whom are members of the FNPF.

Dr Shameem says that the FNPF advertisements placed in the newspapers over the past four weeks will be referred to in the David Burness and other court actions as an example of deceptive and misleading conduct on the part of FNPF and Government. FNPF and Government have clearly opened the door to even more public criticism of their proposals by such advertising.  By direction of the Ministry of Information, the media have not been able to publish press statements from David Burness to provide the alternative view.

 FNPF and Government lawyers told the Court last week that they will make another effort to strike out the Burness action. However, Dr Shameem says her client and all his supporters are ready with their legal arguments to prevent any attempt to strike out Mr Burness’ application for human rights protection on this issue of national significance.  

The Essential National Industries (Employment) Decree: AG’s Media Statement on 10^th September is a Mis-use of Human Rights Principles and Law

 Press Release from Dr Shaista Shameem
Former UN Special Rapporteur and Human Rights Expert; former Director and Chairperson of the Fiji Human Rights Commission. 

The enactment of the Essential National Industries (Employment) Decree No 35 of 2011 on 29^th July is fundamentally inconsistent with the foundations of the Employment Relations Promulgation 2007 (ERP), and jettisons the comprehensive public consultations and consensus-building that the Employment Relations Bill involved. By so doing Decree No 35 also has the effect of expressing the State of Fiji’s disregard of the International Labour Organization’s Conventions 87 and 98 which it has ratified.
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These include Press Releases that the Fiji Media could not publish due to PER restrictions. Click on the PDF to read content:

Press Statement Burness v FNPF

Burness v FNPF and AG Press Statement 2

Press Statement # 3

Burness v FNPF press statement #4

Press Statement # 5

 AG’s statement on Pacific Beat that asking the President of Fiji to appoint a Commission of Inquiry is ‘laughable’ since he does not have that power’:

Grey Power Response:

The rights of the elderly of Fiji were protected by the 1997 Constitution. If there is presidential power to abrogate the Constitution, then surely there must be a presidential power to establish a Commission of Inquiry in the national interest, since appointing a Commission of Inquiry is a ‘prerogative’ power used for the public good.

Fiji AG says Aust-NZ travel bans affect pension fund

Fiji’s interim Attorney-General, Aiyaz Sayed-Kaiyum, says travel bans by Australia and New Zealand on members of Fiji’s post-coup regime are hampering efforts to bring more expertise onto the Board of Fiji’s troubled pension fund.

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