Lawyer blasts Fiji’s new superannuation decree

04 Sunday Dec 2011

Posted by in Articles & Reports

≈ Leave a comment

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.”

courts-and-trials

Selective quotes from my 1998 Parliamentary contribution to justify current changes ~Dr Wadan Narsey

03 Saturday Dec 2011

Posted by in Articles & Reports

≈ Leave a comment

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.

 

FNPF Transition Decree: last nail in the FNPF coffin ~By Dr Wadan Narsey

03 Saturday Dec 2011

Posted by in Articles & Reports

≈ 1 Comment

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 →

Its time for the FNPF Board to GO!

03 Saturday Dec 2011

Posted by in Articles & Reports

≈ Leave a comment

Here for the Pensioners , or here for themselves ???

INVESTMENT RETURNS CALCULATOR

Pensioner

FNPF
Principal Amount:

$10,000.00

$10,000.00
Annual Rate of Return:

1.00%

5.00%
Pension Amount Per Period:

-$175.00

-$175.00
Term of Pension (in Years):

5

5
Number of Payments Per Year:

12

12
Total Number of Periods (up to 360):

60

60
Total Interest Income:

$250.16

$1,432.52
Excess Paid by FNPF

($249.84)

  
Total Interest Received

$500.00

  
Balance Gained by FNPF  

$932.52
   

Pensioner

FNPF
Principal Amount:

$10,000.00

$10,000.00
Annual Rate of Return:

2.00%

5.00%
Pension Amount Per Period:

-$100.00

-$100.00
Term of Pension (in Years):

10

10
Number of Payments Per Year:

12

12
Total Number of Periods (up to 360):

120

120
Total Interest Income:

$940.03

$2,941.87
Excess Paid by FNPF

($1,059.97)

  
Total Interest Received

$2,000.00

  
Balance Gained by FNPF  

$941.87
   

Pensioner

FNPF
Principal Amount:

$10,000.00

$10,000.00
Annual Rate of Return:

2.33%

5.00%
Pension Amount Per Period:

-$75.00

-$75.00
Term of Pension (in Years):

15

15
Number of Payments Per Year:

12

12
Total Number of Periods (up to 360):

180

180
Total Interest Income:

$1,537.58

$4,590.37
Excess Paid by FNPF

($1,962.42)

  
Total Interest Received

$3,500.00

  
Balance Gained by FNPF  

$1,090.37


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.

A letter from Sue to FNPF Board

03 Saturday Dec 2011

Posted by in Letters to FNPF

≈ 9 Comments

Sirs 
You will see that this letter is sent to you in my name. Other than that you know absolutely nothing about me or my circumstances. In fact, I am quite sure that you know next to nothing about any FNPF pensioners – each is merely an FNPF ‘number’. The Nazis gave numbers to the inmates of concentration camps – they didn’t care about who those people were, either. 

You are aware of the huge turnout at the latest hearings. You cannot have missed the fact that there was even a walk-out in Labasa. Your senior pensioner scapegoat is now invalid; because the ‘little pensioners’ are mad as hell, not at the big pensioners, but at you, the board. They see, all too clearly, that if you go for the big fish, the little fish have no hope. They know all too well that a thing done once can easily be done again.

This whole ‘reform’ saga has been a comedy of errors right from the start – a start which the members knew nothing of until they were called upon to offer submissions to the board concerning a necessary FNPF reform. Only, of course, that is not strictly correct, since for the past decade and more letters to the Editors of our daily rags plugged away consistently at the need for reform and those warnings, many of them penned by Mrs Talei Burness, were blatantly ignored – how ironic is that? 

The initial call for submissions was a sham and that fact was blatantly obvious. Right from the start the FNPF knew where it was going and how to get there. Two sets of circumstances were manipulated to ensure that the fund would ultimately be wrested from its owners, that is, the members.
Continue reading →

FNPF Draft Decree 2011: Regime taking total control Dr Wadan Narsey

02 Friday Dec 2011

Posted by in Articles & Reports

≈ 16 Comments

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 →

Fiji National Provident Fund Transition Decree 2011 (Decree No 51).

01 Thursday Dec 2011

Posted by in Press Releases

≈ Leave a comment

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 25th –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

FNPF in Crisis, says Mr Taito December 1st, 2011

01 Thursday Dec 2011

Posted by in Grey Power Editor

≈ Leave a comment

Suddenly the FNPP is in crisis. For months the Fund management has been assuring us that the FNPF is operating well and our money is safe. In October the FNPF reported strong results with a net surplus of $243 million. Assets were up and contributions to the FNPF were the highest in the Fund’s history. To add icing to our cake investment income grew steadily. We say “our cake” because the FNPF belongs to its members and pensioners are members. It does not belong to the Government.

So the Fund has presented a very positive picture and naturally we welcome this. But now, out of the blue, the FNPF CEO Mr Aisake Taito, is referring to the FNPF’s “current crisis”. This is extremely alarming. He made the comment in the Fiji Government’s propaganda rag, the Fiji Sun.

Mr Taito has never spoken in these terms before.

He did not spell out precisely what the crisis is. But with a financial institution like the FNPF a crisis usually relates to urgent money problems. So what are these pressing problems that have emerged so soon after the triumph of the recently declared surplus, improved assets, and record contributions? Has the FNPF unexpectedly moved into reverse?

Mr Taito should be asked about this at the current round of meetings.  For the sake of accountability and good corporate governance, Mr Taito should provide the details of the disaster that has struck the FNPF.

It cannot be about payment of current legally binding pensions because the Fund has said consistently that it can continue for another 40 to 45 years as it is presently organised.

Mr Taito should also stop spreading the false story that the many pensioners who are upset and angered by the FNPF’s insensitive and cruel handling of their monthly entitlements, are trying to stop the Fund’s reforms. Mr Taito knows very well that this is not true.

We are not fools. We understand the need for reform for future sustainability. But we do not accept that the reform should involve smashing current pension contracts .

About ninety percent of the 11000 pensioners are below the poverty line. We welcome the FNPF’s plans to “top up” their payments although these arrangements appear to be less than generous.

That leaves about 1200 of us who face the big chop. The majority of our group are from the working and middle classes, ordinary, hardworking citizens who have contributed to Fiji and continue to do so. We have also contributed to the FNPF and helped to subsidise other pensioners before we reached retirement age.

We do not deserve the hard-hearted and uncaring treatment dispensed to us by the management and board of the FNPF.

Shame on them, we say. A big shame on them.

Questions for Aisake Taito CEO FNPF

01 Thursday Dec 2011

Posted by in Articles & Reports, Letters

≈ Leave a comment

Aisake:  On 23rd July this year you stated that the new pension measures would be introduced over a period of five years to give the pensioners a chance to adjust……………….. Have you now changed your mind ?

Aisake:  On 30th November 2011 you stated to the media, namely the Fiji Sun, that there were thousands of “Well Off” people getting paid high pensions, by our calculations on the figures published by the FNPF there are less than 50   ………………. Have you lost your ability to do simple additions, if so why are you still CEO of the FNPF.

Aisake:  The word transparency figures strongly in the FNPF slogan……………. Why do you not practice it ?

Aisake:  FNPF lent $200 million dollars to Air Pacific ………………………. Was this US dollars and did you carry out due diligence to ascertain that they could repay the loan or even the interest, and how much interest did you negotiate on our behalf and why haven’t you TOLD US?  

Aisake:  Given the fact that all the funds you are manipulating belong to the members not the government, ,,,,,,,,,,,,,,,,,,Why are you and the FNPF Board handing the responsibility to the government to reduce FNPF pensions at a time they are increasing, judicial, disciplined forces, politicians and civil servants pensions by 20% ?

Aisake:  Recently in October you reported strong results for FNPF with a net surplus of $243 million. Today 1st December you are quoted as stating the FNPF is “In Crisis” ………………. Are you incapable of telling the truth?, or are you just a moron ?

Aisake:  The maximum age on the FNPF pension brochure that you circulated on Monday is 69……………………….Is this when you think we MUST die ?

 

Fijipensioners welcome any other questions for Aisake Taito in our comments columns