By: Mick Beddoes.

A week ago, the newly appointed Minister of Finance, Esrom Immanuel, out of the blue, issued a “Government statement on 2012 FNPF Reform” (communicated to the 2012 pensioner’s core group Chairman Ross MacDonald).

This statement represents firstly, a horrendous betrayal of the 2012 pensioners who had suffered the robbery of their property (i.e. irrevocable pensions) by the Bainimarama military regime and who have struggled for restitution after the Rabuka Coalition Government took office at the end of 2022.

Secondly, the MoF statement is also an egregious betrayal of parliamentary “rule of law” by explicitly using as a justification, the imposed dictates of the 2013 Constitution which has never been ratified by any Parliament or referendum, but instead, was unilaterally imposed on Fiji by the unelected Bainimarama/Sayed-Khaiyum military regime.

Sadly, this MoF statement is thereby also implicitly justifying the treasonous overthrow in 2006 of the democratically elected Qarase Government and all the illegal decrees that came after and were entrenched in the 2013 Constitution.

Can Fiji afford to give the message that “crime pays”.

Not ‘reform’ but robbery

THE personal pain and suffering of the 2012 pensioners have been frequently described in the media by letter writers such as Ronnie Chang, Rick Rickman, Dewan Chand, Colin Deoki, Libby Reade-Fong and many others who continue to write every week.

We remind that the reductions imposed on the 2012 pensioners by the military decrees was not any “reform” as euphemistically claimed, but a blatant robbery of their lawful property.

In 2012, the Bainimarama regime and FNPF broke the irrevocable contracts which had been offered to pensioners by FNPF on its own 9NOP forms.

These forms specified a pre-quantified pension payable per month (in dollars) for life, in return for FNPF taking over their accumulated lump sums at age 55.

The form specifically stated that no changes by the pensioners would be allowed. Neither did FNPF’s 9NOP Form permit or authorise FNPF to unilaterally change, amend, or alter its solemn undertakings given under it.

Through FNPF’s illegal breaking of contracts (which its consultants Promontory had specifically advised against) FNPF forced the 2012 pensioners to accept one of several options offered:

• accepting a reduced pension; or

• withdrawing their original lump sums; or

• adopting some combination of the two; or

• taking an annuity.

All options inevitably led to financial loss for the 2012 pensioners in the long term, with all their foregone entitlements being enjoyed by FNPF. It is a fundamental foundation of all good legal systems that wrong-doers should never be allowed to benefit from their wrong doing!!

The unelected Bainimarama/Sayed-Khaiyum regime also issued unratified Decree No.51 that illegally reduced pensions and stopped the lawful challenge of the late David Burness which was already being heard in the High Court. They thereby denied the 2012 pensioners their basic international human right to take their legitimate grievances to court for redress.

This statement by the new Minister of Finance is a sad reversal of the position adopted by his predecessor (Professor Biman Prasad) who, in his 2024 budget speech, had labelled this unilateral breaking of the pensioners’ contracts as “illegal”.

Using taxpayer funds, Prof Prasad had prospectively restored the pensions of those who had accepted reduced pensions, but he did not address the others who had also lost out, nor was there any settlement of back-pay.

So why, did the current Minister of Finance in his statement call the 2012 robbery of property belonging to the 2012 pensioners a “reform” as FNPF had tried to call it in 2012 ?

Who indeed are the people who drafted the minister’s statement which was allegedly approved by Cabinet?

The MoF statement merely states that “Cabinet has made the decision that there will be no backdated reinstatement of these pension payments… The total estimated cost is about $582 million, including about $372 million in backdated payments and a further $210 million in future liabilities.”

While we can accept these numbers for the moment, importantly, the rest of the MoF statement is full of erroneous misstatements and outright lies which have been perpetuated for more than 15 years by FNPF managements and boards.

Let us focus on the outright lies before we come to the “rule of law” betrayals which are the “elephants in the room” with significant long-term implications for Fiji.

Outright lie No.1: Ignoring the Pension Buffer Fund (PBF)

The MoF statement claims that: “Reinstating pensions backdated to 2012 would undermine (FNPF’s) sustainability and would require either the use of other members’ funds to subsidise previously high and actuarially unsustainable pension rates or significant additional fiscal resources beyond Government’s financial capacity. FNPF does not have the capacity to absorb this cost without compromising member balances and future returns.” This is a blatant outright lie.

The FNPF has always had the ability to pay for the lawfully contracted pensions because the democratically elected Parliament under the able leadership of the late Ratu Sir Kamisese Mara, established a Pension Buffer Fund (PBF) in 1975 precisely to pay for these pension liabilities.

All FNPF members at the time including most of the present aggrieved pensioners were required by a law of Parliament, to inject 2 cents in the dollar into the PBF between 1975 until 1998, when the cash injection was stopped by a similarly elected Parliament (as also was its sovereign right).

The law also provided a Government loan guarantee that could be resorted to whenever FNPF was unable to meet its financial commitments.

Inexplicably, however, in 2000 without any explanation by FNPF in its annual reports, the parliamentary established Pension Buffer Fund was absorbed into the General Reserve. Who in FNPF authorized this move which undermined an Act of Parliament?

The account was still maintained in name by FNPF and received all the lump sum balances of members who chose the pension option and from which was paid out, the contracted pensions.

But the FNPF Board omitted (or perhaps refused) to pay interest into the Pension Buffer Fund even though (as part of all FNPF Reserves) also invested to earn income. That interest income from the PBF was then improperly credited to the benefit of all members, but not the pensioners.

We say that a statute that provides inter alia for the payment of interest generally and which does not expressly exclude or prohibit the payment of interest to a specified account, is obliged to pay interest to the unspecified account.

Had the Buffer Fund been credited with the interest all other funds were being credited with, even in 2011 when the robbery took place, Narsey has estimated that the Buffer Fund would have amounted to a massive $877 million.

This figure far exceeds the $582 million supposedly required to pay for the full restitution of the 2012 pensioners’ irrevocable contracts (the MoF statement informed that the $582 million comprised $372 million for backpay and $210 million to be paid for future pensions).

Narsey has estimated that by 2025 the Pension Buffer Fund receiving its due interest income, receiving new pensioners’ lump sums on retirement and paying pensions, would have a credit of $1,382 millions (more than a billion).

In other words in paying what is due to the wronged 2012 pensioners, FNPF would today still have a surplus of $800 million in the Pension Buffer Fund, if it had been properly credited with interest as it should have been.

Contrary to claims in the MoF statement, full restitution to the 2012 pensioners can be made without any need for subsidies from General Members who would indeed still be profiting by $800 million. There would certainly not be any need whatsoever for any subsidy from Government.

If the backpay is done in three installments (as Narsey has previously suggested in his The Fiji Times article of December 13 2025: The 2012 FNPF Pensioners’ Robbery: the way forward”), only $132 million per year would be required for the backpay (and only for the first three years), and perhaps a mere $20 million annually for continuing pensions (currently paying $23 million annually).

Given the buoyancy of FNPF annual financial flows according to it’s annual reports, FNPF can easily accommodate restitution to the 2012 pensioners, as even greater adjustments were made during the recent COVID period.

But the Coalition Government, the Fiji Parliament and Fiji should note the far more dangerous long term implications of the MoF statement for Fiji’s Rule of Law and Parliamentary Democracy.

A brutal dagger into the Fiji’s rule of law

Soon after the Fiji Government had changed, there was a light satirical piece by lawyer Richard Naidu “Rule of law – Maybe a time for Aiyaz to reflect” (FT Jan 28 2023). More on Richard Naidu below as he is currently a legal adviser to FNPF.

Readers would be better off reading a far more serious article Narsey wrote on the universal principles of good “rule of law” (FT 16 March 2024: “The rule of law cancer in Fiji”) when he had called on the Rabuka Government to urgently address unresolved constitutional issues in its term in Parliament.

One essential cog in the rule of law “wheel” Narsey had pointed out was that laws must be made and changed in an open and transparent way by the people and all decisions must be made by a representative elected Government.

In complete contrast, no one knows to this day who were responsible for the drafting of the 2013 Constitution, which was never passed by an elected Parliament or adopted in a public referendum.

Yet somewhat ironically, to change a sentence in the 2013 Constitution, the draftsman demanded that there must be a three quarters majority vote in Parliament followed by a three quarters “yes” vote in a referendum of all the registered voters in Fiji (not voters actually voting), a virtual impossibility.

With far reaching implications for the rule of law are sentences in the MoF statement that use as justification for Government’s impotence and inertia, the provisions of the 2013 Constitution. These sentences plunge a dagger into the heart of the Constitution as a “living document”.

The MoF statement thus asserts: “The 2013 Constitution of the Republic of Fiji provides clear legal guidance on this matter. Section 173(3) expressly prohibits Parliament or Government from enacting any law that would retrospectively alter the legal effect of the 2012 FNPF reforms. This means Government cannot undo past decisions, restore old pension rates from 2012, or authorize compensation, damages, or backdated payments arising from those reforms. Any such action would be unconstitutional.”

How extraordinary that the MoF statement asserts that in resolving the case of the 2012 pensioners, the elected Coalition Government must strictly abide by a self-proclaimed Constitution that begins with a blatant untruth : “We , the people of Fiji …..hereby establish this Constitution…”.

What is more, the same document has never been accepted in a national referendum nor has it been scrutinised, debated and passed by an elected Fijian Parliament despite the Bainimarama Government being in effective control from 2006 to 2022 and despite it winning 2 parliamentary elections.

Undermining sacred principle of parliamentary democracy

How utterly extraordinary that the unknown, nameless, and faceless individuals who drafted the 2013 Constitution can with the stroke of disingenuity, insert a clause that boldly asserts that no future Parliament can enact any law that would retrospectively “alter the legal effect of the 2012 FNPF reforms”.

We have no hesitation in rejecting such an unprecedented wholesale trashing of the long established doctrine of “parliamentary supremacy” which declares that a democratically elected Parliament must have absolute sovereignty and can make or unmake any law it chooses.

This also means some unnamed creator of the 2013 Constitution cannot bind or hamstring a future democratically elected Parliament, as all democratically elected Parliaments have the same unlimited legislative powers to enact laws for the peace, order and good government of Fiji and its people at any point in time.

How extraordinary also that the MoF statement ignores a recent Supreme Court opinion that was sought by the Coalition Government itself where the court opined inter alia that the amendment provisions of the 2013 Constitution were not set in stone, but that two thirds of the elected Parliament and a simple majority in a referendum would be enough to change elements in the Constitution.

The Supreme Court also declined to recognise the validity of parts of sections 173 which is referred to in the MoF’s ‘Statement’.

Ignoring “property” rights of the 2012 pensioners

It is extraordinary that The MoF statement asserts “Section 26 of the Constitution protects property rights. The retirement savings of FNPF members constitutes their private property. Using those funds to finance retrospective reinstatement would amount to taking members’ property without consent and would expose Government and FNPF to significant legal challenge”.

Pray, what about the even earlier and similar property rights of the 2012 pensioners? Aren’t they also entitled to the same protection?

Their property rights were forcibly taken and altered without their consent by a military regime and without any compensation in the 2012 robbery.

Indeed, the restitution that the 2012 pensioners have called for would come completely from the PBF, not the General Members’ balances or property rights.

Note that the PBF surpluses which strictly belong to pensioners have instead been used for the benefit of the General Members for more than twenty and they continue to rise annually even now.

Why is it that the legal advisers of the MoF and FNPF so brazenly ignore the property rights of the robbed 2012 pensioners?

Who are FNPF’s legal advisers?

We have no idea if there was any input of FNPF lawyers into the MoF statement.

But we do know that in a meeting that the core group of the 2012 pensioners had with the FNPF Board a few months ago (with Narsey attending by zoom from Melbourne), Richard Naidu was present and spoke as FNPF’s lawyer.

Astonishingly Naidu lectured us at length on the need for FNPF to follow the “law” as it stood. He repeated over and over that the 2011 Decrees stopped the FNPF from addressing the 2012 pensioners’ grievances.

Richard Naidu made no mention of the dastardly origins of the 2013 Constitution as opposed to the 1997 Constitution which had been approved by both Houses of the Fiji Parliament yet treasonously trashed by the Bainimarama Government.

The MoF statement also totally ignored that the core group in its submissions to Government and the FNPF Board had included, with the assistance of former chief justice Daniel Fatiaki, a draft Bill which would set aside the FNPF Act 2011 and the FNPF Transition Act 2011.

Most pensioners have had the greatest of respect for FNPF’s lawyer Richard Naidu, as an ethical and courageous opponent of military coups, illegal governments and media censorship, despite his persecution by military regimes.

Just three years ago when the Bainimarama Government tried to criminalise him over a trivial social media post, Professor Narsey wrote an article defending Naidu, published internationally by Asia Pacific Review (15 October 2022 “Shameful silences at another unfolding tragedy in Fiji”).

The 2012 pensioners would like to hope that ethical FNPF’s lawyers, including Richard Naidu, would have some professional sympathy for the 2012 Pensioners whose lawful irrevocable contracts were trashed by FNPF, their property stolen, and their lawful case in court thrown out, denying them their fundamental human right to go to court.

The 2012 pensioners hope that the legal justice of their case and avenues for lawful solution, are recognised by FNPF’s ethical lawyers who could then ethically advise FNPF to seek a lawful and just settlement, especially as the 2012 pensioners are prepared to consider compromises to enable speedy resolution.

Sadly, their numbers dwindle by the week.