Wednesday, June 29, 2011

DAVID FOWLER BURNESS Vs FIJI NATIONAL PROVIDENT FUND

Posted on Coup Four Point Five - 29 June 2011


Regime and FNPF taken to court over proposed changes

A 75 year old beneficiary is taking the Fiji National Provident Fund and the illegal attorney general, Aiyaz Sayed Khaiyum, to court, to stop any ammendments to the FNPF Act.

David Fowler Burness, who lives at Suva Point with his wife, says he is seeking human rights protection in relation to the proposed review of the FNPF indended to reduce his pension.

He says his human right to live with dignity in old age, his right to protection of his property, his right to social security, and his right to life, all of which the Republic of Fiji, as a member of the United Nations, is compelled to protect, will be violated if the proposed reforms are enacted.

Burgess is being represented by Dr Shaista Shameem of ShameemLaw.

Dr Shameem says her client's application states that the proposed review of the FNPF pension scheme will unfairly discriminate against Mr Burness and will breach the contract between the Fiji National Provident Fund and Mr Burness. She says the fiduciary duty of FNPF towards Mr Burness as a pensioner, as well as FNPF’s contractual obligations towards him, is included in the action as grounds for legal scrutiny by the High Court.

FNPF has said that from this Friday, the illegal regime will enact a new law reducing the pensions of those already receiving benefits.

Dr Shameem says the High Court has told her it will hear her application on July 4th, which will be no use at all if the FNPF Decree comes in on July 1.

She says the illegal Attorney General's Decrees are always non-reviewable, ie the courts can't review them, she suspects her application will be given a certificate of termination, as it has happened to her recently with a case in the Employment Tribunal which was cancelled by the Registry bcause of ERP Decree 21.

Dr Shameem says the FNPF proposal is an outrageous disrespect for the rights of elderly beneficiaries who have contributed so much to Fiji’s economy through their hard work and total dedication to Fiji.

She says that her law firm has made an ancillary application on behalf of Mr Burness for an interim injunction against the Fiji National Provident Fund, the Republic of Fiji, and the Attorney General.

But it still has not heard from the court to hear her ex parte application and doesn't know why there is a hold up, considering the proposed changes are just two days away from being implemented.

Dr Shameem said Mr Burness’ application is a public interest matter of grave significance and it would be foolish of the regime to enact a Decree merely to thwart the desire of Mr Burness, and other pensioners in the same position, to have their legitimate grievances regarding the FNPF properly adjudicated.

In a statement, Dr Shameem urged the regime to let the Court make its decision on the basis of legal issues and not preampt its functions by promulgating a Decree just to frustrate pensioners’ right to be heard by the courts.

Dr Shameem said that she was confident that the High Court would consider her application on its merits as a human rights application.

"The application was made pursuant to the Human Rights Commission Decree No 11 of 2009 and international human rights law, and relies on the common law on human rights, contracts and fiduciary duty of the State."

ShameemLaw has served court papers on the FNPF, the Republic of Fiji and the Attorney General.

READ BELOW PAPERS FILED AS PART OF THE APPLICATION

IN THE MATTER OF DAVID FOWLER BURNESS v THE FIJI NATIONAL PROVIDENT FUND, THE REPUBLIC OF FIJI AND THE ATTORNEY GENERAL HBC CIVIL ACTION 183 OF 2011 

PRESS STATEMENT 
Fiji’s legal firm, ShameemLaw, has made an application in the High Court on behalf of its client, Mr David Fowler Burness, for human rights protection against unfair discrimination on the grounds of age. The application states that the proposed review of the Fiji National Provident Fund (FNPF) pension scheme will unfairly discriminate against Mr Burness and will breach the contract between the Fiji National Provident Fund and Mr Burness. The fiduciary duty of FNPF towards Mr Burness as a pensioner, as well as FNPF’s contractual obligations towards him, is included in the action as grounds for legal scrutiny by the High Court.
 
Mr Burness is a 75 year old beneficiary of the FNPF who says that his human right to live with dignity in old age, his right to protection of his property, his right to social security, and his right to life, all of which the Republic of Fiji, as a member of the United Nations, is compelled to protect, will be violated if the proposed reforms are enacted. FNPF has said that on July 1 2011 Government will enact a new law reducing the pensions of those already receiving benefits. The principal of ShameemLaw, Dr Shaista Shameem, states that this proposal is an outrageous disrespect for the rights of elderly beneficiaries who have contributed so much to Fiji’s economy through their hard work and total dedication to Fiji.

Ex-parte application for interim injunction against July 1 possible enactment of a new FNPF Decree
 
ShameemLaw yesterday also made an ancillary application on behalf of Mr Burness for an interim injunction against the Fiji National Provident Fund, the Republic of Fiji, and the Attorney General This application is still before the Chief Justice of Fiji for review, which is expected on June 28th. Dr Shameem will communicate the decision of the Chief Justice to the public. Dr Shameem informs the press that, since the proposed reforms were expected to be enacted by a non-reviewable Decree on July 1, her client wished to have the Court grant his application for an ex-parte injunction because the enactment of a Decree will be used to cancel or terminate his application; this would frustrate Mr Burness’ right to a remedy in the courts of Fiji which in itself would be a violation of Fiji’s obligations to protect and promote international human rights law. Dr Shameem said that if there is any Decree promulgated to terminate the proceedings, ShameemLaw would consider what further actions would be appropriate for her law firm to take.
 
Dr Shameem said Mr Burness’ application was a public interest matter of grave significance. She says it would be foolish of the Government to enact a Decree merely to thwart the desire of Mr Burness, and other pensioners in the same position, to have their legitimate grievances regarding the FNPF properly adjudicated. She urges the Government to let the Court make its decision on the basis of legal issues and not preampt its functions by promulgating a Decree just to frustrate pensioners’ right to be heard by the courts. Dr Shameem said that she was confident that the High Court would consider her application on its merits as a human rights application. The application was made pursuant to the Human Rights Commission Decree No 11 of 2009 and international human rights law, and relies on the common law on human rights, contracts and fiduciary duty of the State.
 
The High Court has set the date for the first mention on Mr Burness’ inter-partes application on 4th July. ShameemLaw today served court papers on the FNPF, the Republic of Fiji and the Attorney General.
 
The Notice of Motion and Affidavit in support are attached to this Press Statement for the information of the public. Stamped court copies of the documents will be available at the press conference to be held at a time and place advised today.

For further information members of the press and the public are invited to contact Dr Shaista Shameem on mobile number 9514751 or shaistashameem5@gmail.com or info@law.com.fj . 


Dr Shaista Shameem 
Principal 
ShameemLaw 

28th June 2011
________________________________________________________________________________


IN THE HIGH COURT OF FIJI 
CIVIL JURISDICTION HUMAN RIGHTS COMMISSION DECREE 2009 
AT SUVA CIVIL ACTION NO OF 2011 



BETWEEN : DAVID FOWLER BURNESS 

APPLICANT 

AND : FIJI NATIONAL PROVIDENT FUND 

FIRST RESPONDENT 

AND : THE REPUBLIC OF FIJI 

SECOND RESPONDENT 

AND : THE ATTORNEY GENERAL OF FIJI 

THIRD RESPONDENT 

NOTICE OF MOTION 

TAKE NOTICE that this Honourable Court will be moved on day of 2011 at the hour of o’clock in the noon, or soon thereafter as counsel on behalf of the Applicant can be heard for the following relief: 

1. THAT the Court declare, as a human rights protective remedy, that the Applicant David Fowler Burness’ pension benefit in the form of his Fiji National Provident Fund cannot be reduced in any shape or form by the Fiji National Provident Fund Board, the Republic of Fiji and /or the Attorney General at any time. 

2. THAT the proposed review of the Fiji National Provident Fund Act and Pension Scheme which will reduce the pensions of members, in the applicant’s case by 64%, is unfair discrimination within the meaning of unfair discrimination in Fiji’s human rights law and the obligation of the Republic of Fiji to comply with United Nations international human rights law prohibiting unfair discrimination on the grounds inter alia of age, status and personal characteristics and circumstances. 

3. THAT the proposed review of the Fiji National Provident Fund in the terms communicated to the members of the Fund constitutes a breach of contract entered into between the Applicant, David Fowler Burness, the FNPF Board and the Government of Fiji. 

4. THAT prior to the Fiji National Provident Fund Board reviewing the FNPF Act, it be declared by the Court that the Respondents appoint an independent person or body such as a judicial Commission of Inquiry, appointed through an open selection process, to inquire into the past financial dealings of the Fiji National Provident Fund with a view to independently auditing the Fund, providing the Applicant and other members of the Fund with a comprehensive report on the Fund’s use, including lending, finances, decision-making of previous and current Boards, and related matters, which the Board has stated in its public meetings as being the reason for the current problems with the Fund which necessitate the reduction of pension benefits to the Applicant. 

5. THAT the terms of reference of the Independent Commission be drafted in consultation with the beneficiaries of the Fund. 

6. THAT the intended review of the FNPF Act shall be shelved until such time as the independent body or Commission has communicated its findings and recommendations to the members of the Fund. The Applicant seeks an Interim Order to this effect from the Court. 

7. THAT, in any event, the Court declare that any FNPF review intending to reduce or adversely change or alter the current pension benefit of the Applicant would constitute a breach of his human right to dignity in old age, to social security, his right to life, breach of fiduciary duty of the Board, and the State’s contractual obligations to him since the Fiji National Provident Fund was a mandatory pension Fund at the time the Applicant was working, and he was denied the opportunity by law to contribute to another pension scheme during his working life. 

8. THAT, in addition, the Applicant seeks all the remedies available in the Human Rights Commission Decree, relevant common law, and international human rights law. 

9. Any other relief that the Court may grant in its discretion. 


This Notice of Motion is filed pursuant to section 38 (5) of the Human Rights Commission Decree No 11 of 2009, relevant common law, and international human rights law applicable to the Republic of Fiji as a member of the United Nations.

The Application for Human Rights redress relies upon the sworn affidavit of Mr David Fowler Burness, pensioner, of 44 Beach Road, Suva Point and the just guidance of the Honourable Court at the hearing of the Motion. 

Dated at SUVA this 27th day of June 2011 

Dr Shaista Shameem 
ShameemLaw 
Per solicitors for the Applicant 


IN THE HIGH COURT OF FIJI 
CIVIL JURISDICTION HUMAN RIGHTS COMMISSION DECREE 2009 
AT SUVA CIVIL ACTION NO OF 2011
 


BETWEEN : DAVID FOWLER BURNESS 

APPLICANT 

AND : FIJI NATIONAL PROVIDENT FUND 

FIRST RESPONDENT 

AND : THE REPUBLIC OF FIJI 

SECOND RESPONDENT 

AND : THE ATTORNEY GENERAL OF FIJI 

THIRD RESPONDENT 

NOTICE OF MOTION 
Address for Service 
c/- David F. Burness, 
44 Beach Road, 
Suva Point Mobile 9514751


________________________________________________________________________________



IN THE HIGH COURT OF FIJI 
CIVIL JURISDICTION HUMAN RIGHTS COMMISSION DECREE 2009 
AT SUVA CIVIL ACTION NO OF 2011 



BETWEEN : DAVID FOWLER BURNESS 

APPLICANT 

AND : FIJI NATIONAL PROVIDENT FUND 

FIRST RESPONDENT 

AND : THE REPUBLIC OF FIJI 

SECOND RESPONDENT 

AND : THE ATTORNEY GENERAL OF FIJI 


THIRD RESPONDENT 

AFFIDAVIT IN SUPPORT OF APPLICATION FOR HUMAN RIGHTS PROTECTION 

I, DAVID FOWLER BURNESS of 44 Beach Road, Suva Point, Suva, make oath and say as follows: 

1. I am the Applicant and I depose this affidavit in support of my application to seek human rights protection in the High Court of Fiji in relation to the proposed review of the Fiji National Provident intended to reduce my pension. 

2. The contents of this affidavit are true in so far as they are within my knowledge, information and belief. Where the contents are not within my personal knowledge, the source of that knowledge is stated and the contents are true to the best of my information, knowledge and belief.

3. My counsel, solicitor and barrister Dr Shaista Shameem, has been instructed by me to institute these proceedings in the High Court, pursuant to section 38 (5) of the Human Rights Commission Decree No 11 of 2009, relevant common law, and international human rights law to protect my human rights as a pensioner in Fiji. 

4. I was born in Fiji on 24th August 1936 

5. I worked in Fiji from 1970 to 2000 in the occupation of Manager 

6. I was a member of the Fiji National Provident Fund (FNPF) since 1970 

7. I was not a member of any other pension fund 

8. On 24 August I retired and opted to take my pension fund from FNPF in the form of a monthly benefit. 

9. At the time I retired I had a pension fund provided to me of 25% of Gross Contribution. 

10. Until 2009 I was under the impression that this pension benefit would provide for me until my death. 

11. My pension fund and that of my wife constitute the sole income from which we pay for all our necessities of life, including utility bills, medical expenses, food and incidentals. 

12. My wife and I are physically independent and our contributions to the FNPF Fund were supposed to provide for all our needs without any support required from family or the state. 

13. We own our home in Suva Point and fully expected to pass our twilight years there until our deaths. 

14. On 19th June 2009 a disquieting report appeared on the FNPF website quoting the Chairman of the FNPF Board, Mr Parmesh Chand, as stating that a review of the Pension Scheme was due to take place. Mr Chand was quoted as stating that ‘a majority of pensioners have outlived their pension with some earning more than three times their balance on retirement’. He was quoted as saying. ‘this is unfair and inequitable. We cannot allow this trend to continue, as the Fund is not only for those pensioners already enjoying benefits but for future generations as well’. Attached as Annexure 1 is a copy of that statement. 

15. It was reported that the review of the Pension Fund was to be conducted by Mercer (Australia) Pty Limited as Actuarial Consultant. 

16. From 2009 to the present day I have not been able to receive any such reports and recommendations of various reviews from the FNPF, which is a Trust that should be working for the benefit of the members. The information that I have received has been only from newspaper reports, information from friends and technical reports which are not always clear. 

17. A few months ago the public was informed that a review of the FNPF pension scheme was inevitable and that the Board would hold a series of consultations throughout Fiji to inform members of the proposed review and receive submissions. 

18. I went to a number of these meetings and, along with other members of the public, sought specific information from the Board on why our pension funds were depleting and why we had not been informed of the various investments that FNPF had entered into and the way in which the Fund was mismanaged in the past, as was reported in these public meetings. 

19. Recently, I became aware of the report written by the accountant firm Ernst and Young which pointed to the suspect practices of the past Boards in allocating loans to certain big businesses in Fiji without due diligence and transparency, at great risk to the Funds. This report was not disclosed to the members although it was done some years ago. Attached as Annexure 2 is a copy of part of this Report. 

20. When we brought this concern up at the public meetings we were informed by the Chief Executive of the FNPF and members of the Board that the Board did not want to look to the past but wanted to ‘move forward’ with proposals for reform. 

21. This attitude did not impress me as being consultative in nature; in fact, while the members’ views were politely listened to, there was an impression gained that the FNPF and the government had made up its mind that the pension funds of members already in retirement would be reduced to the tune of 64%. In my case my pension would be reduced from the 25% return, with which I had retired, to 9%. 

22. This reduction will impoverish me and my family since both my wife and I are over the age of 60 and unlikely to ever return to full time employment to support ourselves. 

23. I had expected that after the public submissions the FNPF Board would review its position to reduce our pensions which we are already receiving as old age beneficiaries. 

24. However, on Saturday 25th June 2011, that is yesterday, the Fiji Times at page 22 carried an advertisement headed ‘FNPF Acknowledges Submissions’; what is worrying is the last paragraph: ‘The Fund assures you that all submissions will be given consideration and that any changes will be communicated to you’. Attached as Annexure 3 is a copy of the advertisement. 

25. I interpret this paragraph to mean that the changes will take place and since the Board has stated from 2009 that those who ‘outlived their pension’ have caused unfairness and inequity to the Fund itself, which is not correct since the Ernst and Young report shows that the managers of the Fund have been negligent, the advertisement in the Fiji Times gives me much cause for concern that my rights as a pensioner and as an elderly person are likely to be breached by the FNPF Board, the State and those who make laws by Decree in Fiji. Both FNPF Board statements indicate that my right to live as long as I am able to, my right to live in dignity with my own old-age pension that I have earned a right to, and my right to health, welfare and dignity, as well as social security, which the state of Fiji as a member of the United Nations family of states is obliged to protect and promote, are all threatened. 

26. It is obvious to me that once a Decree is promulgated changing FNPF Act, I will not have recourse in the courts due to the exclusionary clauses contained in Decrees of this nature. 

27. For this reason I am also respectfully requesting the Court to make an interim human rights order to prevent any amendments to the FNPF Act until my Notice of Motion has been heard and determined by the Honourable Court. 

28. I respectfully seek leave to file a further affidavit in due course as there are other examples of FNPF’s failure to act in my interest as a beneficiary that I would like to bring to the Court’s attention but because I had wished to make this application as an urgent measure I was unable to annex additional evidence at this time. 

29. I pray that my Notice of Motion is heard by the Court at its early convenience as an urgent measure given the circumstances. 

SWORN at Suva by DAVID FOWLER BURNESS …………………………… 
this 27th day of June 2011 before me: 

………………………………………………………………………… 
Commissoner for Oaths 
________________________________________________________________________________


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