#header-inner img {margin: 0 auto !important; #header-inner {text-align: Center ;} Fiji Coupfourpointfive: 2011-07-31

Saturday, August 6, 2011

ITUC joins growing chorus of condemnation of Fiji regime's campaign to kill off trade unions

The regime's dirty plan to annihilate the trade union movement has been condemned by the International Trade Union Confederation (ITUC), the main international trade union organisation, representing the interests of working people worldwide. 

“This decree constitutes a near total repudiation of the fundamental trade union rights of the International Labour Organization,” says General Secretary, Sharan Burrow. See story below.

Fiji: all-out assault on trade unionism by the military government

5 August 2011: The military government of Fiji has engaged in an all-out assault on trade unionism this year, by force and by decree, and it is getting worse by the day. 

Just this week, union officials were detained, questioned and charged with “unlawful assembly” by police simply for meeting with union members to prepare for collective bargaining negotiations. 

“This is completely unacceptable. Any and all charges must be dropped”, said Sharan Burrow, (pictured above) ITUC General Secretary. Earlier this year, several trade union leaders were brutally beaten by members of the armed forces for exercising their fundamental trade union rights.
A series of laws and executive decrees have chiseled away at fundamental worker rights and in some cases have even eliminated the possibility to challenge the unilateral acts of the government, which undermine workers’ industrial and democratic rights, before any tribunal. 

With the issuance this week of the Essential National Industries Employment Decree, the rights of Fijian workers were dealt yet another severe blow.

The decree, among other things, requires existing unions to re-register under burdensome new rules, voids existing collective bargaining agreements and all but eliminates the right to strike — in any industry that the government may designate. 

“This decree constitutes a near total repudiation of the fundamental trade union rights of the International Labour Organization,” explained Sharan Burrow.

“There is no question as to the government’s aim – to destroy independent trade unionism in Fiji. We will not stand back and allow that to happen,” she said. 

“Its actions leave us with no other option than to escalate further our campaign to mobilize the international community to condemn these acts and to advocate for the restoration of trade union and democratic freedoms in Fiji.” 

http://www.ituc-csi.org and http://www.youtube.com/ITUCCSI

Cocky Fiji regime frontliners exposed as gun-toting cowboys and drunks

Hot off the press photos of the well-paid idiots who work for the military dictatorship, and the faces the Fiji Ministry of Foreign Affairs thinks represents the country. And is proud to strut to the international community. The Ministry has just downloaded a swag of pictures from the official visits of the illegal president Epeli Nailatikau, Inoke Kubuabola and Frank Bainimarama this year to Sinai, Japan, Indonesia etc. Here is a taste of what is available on their flicker photo stream, which you can find at:  http://www.flickr.com/photos/foreignaffairs-fiji/ 

SINAI HERO: Can anyone name him for us?
OUR HERO AGAIN: In a more deadly pose.




GOONS TRYING TO GO STRAIGHT: Ben Naliva and Frank Bainimarama in Jakarta. 

Editor's Note: Thanks to Michael Field and Intelligentsiya for spotting the pics.

Friday, August 5, 2011

Australia's umbrella union goes to bat for Felix Anthony

TRADE UNIONIST'S ARREST FLAGGED: Gillard asked to step in and prevent Felix Anthony being taken in.

An eleventh hour plea has been made by Australian unions to the Australian Prime Minister, Julia Gillard, to prevent the imminent arrest of FTUC's general secretary, Felix Anthony.

In a letter from the president of the Australian Council of Trade Unions, Ged Kearney, the umbrella union urges the Australian government to intervene.

ACTU has asked Gillard to direct the Australian Ambassador to Fiji to warn the regime against the arrest of any trade unionists, in particular Felix Anthony.

FTUC's president, Daniel Urai, and fellow union official, Dinesh Goundar have already been arrested and appeared in court yesterday, charged with unlawful assembly under the Public Emergency Regulations. 

The regime intends to arrest all three of the trade unionists who went to Australia and New Zealand revently to lobby for help over the regime's plan to crackdown even more on workers, via decrees.

Rajeshwar Singh is understood to be still in Australia but should be returning to Fiji this weekend.

New revolutionary Fiji movement formed to fight 'violation of workers rights'

Intelligence sources say Fiji's trade unions have formed the Fiji Workers Revolution Movement and held its first meeting at an undisclosed venue in the West two nights ago.

Sources say the meeting was organised by the Strategic HQ and that the leaders of all the unions representing Fiji, agreed unanimously that a revolution is the only way forward.

Information shows they have agreed to and given their full mandate and financial support to the movement to organize a scientific, systematic and calculated grand workers union revolution to start next week on Monday the 8th.

The grand plot, locally and internationally, is aimed at crippling the economy on a daily basis.

Sources say the meeting adopted the establishment of a four point plan strategy, which was signed by all union affiliates. A major part of the plan is the marshalling of the international pressure to embargo all Fiji bound cargoes and goods through international ports of entry and through international airports. The detail of the four point plan and strategy will be released in our later addition.

They say the objective and focus of the plan is to show the illegal government and the world that the draconian union decree to dissolve and remove the rights of the workers and unions signed by the illegal President this week "is a direct violation of the fundamental freedom of association, movement, negotiation, reconciliation, bargaining and fulfillment of the workers basic human rights in Fiji."

The following resolutions were agreed to:

1) The meeting recognizes the formation of the Fiji Workers Revolution Movement (FWRM) as the only voice to organize and activate the national grand plot to cripple the economy through scientific, systematic and calculated revolution in all government ministries, statutory organizations, factories, companies and industries. 

2) The financial assistance to run the operations of FWRM is secured through affiliate member unions and volunteer corporate business giants’ locally and internationally, plus sympathizes.

3) The union members of all Union movement in Fiji are encouraged to communicate with the office secretariat of FWRM through the Facebook adress 'Kalou Taukei' with email, cell phone, fax, telephones, numbers and tetxs.

4) Members of the unions are to be communicated with the activity for the first revolution strategy.

Sources say the meeting was the first of its kind with leaders standing up and showing strength. The Intel source said the atmosphere in the room was that of "fearless souls and the fighting hearts of warriors who show an untainted and unwavering spirit of the real battle winners."

One representative said: "We must not bow down to the devil because we are always strong in the end. History has shown unions always stand tall . This is evident in the nurses’ strike in 2000. This can be done again, like when the unions changed the regime of Chaudhry."

FICTU questions timing of new employment decree and civil servant union dues

The Fiji Islands of Council Trade Unions (FICTU) says an announcement by the regime to deny the deduction of union fees from civil servants will effectively kill trade unions, the last of the major democratic organisations in Fiji.

As of yesterday, the government has stopped any union fees being deducted from the pay packets of civil servants.

FICTU's general secretary, Attar Singh, says this is the first time in Fiji's history that an anti union decision has been made.

"None of the previous governments, either elected or unlected took such an anti union decision. The Rabuka regime decreed the removal of the then law, the Trade Unions Recognition Act, CAP 96A in 1991 but continued voluntary check off," Singh said.

Singh is also questioning whether the decision to stop the deduction of union fees from civil servants is in retaliation to the associated threats of industrial action by Australian unions recently.

The Australian Transport Workers Union had called for industrial action and the disruption of flights to Fiji. It has also called on all Australians to stop holidaying in Fiji. The New Zealand Council of Trade Unions was also considering something similar together with other sanctions.

"The fact that it comes right on the heels of a raging debate on whether the authorities had in fact planned to issue a decree effectively neutralising unions in industries it considered critical and the associated threats of industrial action by Australian unions raises the question whether this action is taken in retaliation," Singh said.

Singh says the regime has moved a step closer to outlawing effective unions and enslaving workers has called on the Bainimarama regime to treat workers and their unions fairly.

The Fiji Trades Union Congress has also denounced the new employment decree saying "with a stroke of a pen, the government has gone into record as totally stripping off the gains of almost 8 decades of struggle of workers of Fiji".

Australia denounces regime arrest of Urai and Gounder

Australia has reacted quickly to condemn the arrest of Daniel Urai and Dinesh Gounder under the Public Emergency Regulations.

In a statement, the Acting Foreign Minister, Martin Ferguson, said: “This is another example of the draconian Public Emergency Regulations being used to restrict basic human freedoms. The spate of arrests and beatings in recent months are further evidence that this is a brutal regime."

He said Australia’s acting High Commissioner to Fiji met yesterday with the acting Permanent Secretary of the Fiji Ministry of Foreign Affairs 'to convey Australia’s concerns about the safety of Fiji workers, and the welfare of the two trade unionists.'

"The Acting High Commissioner made it clear Australia was watching developments closely.”

The statement said Australia continued to be deeply concerned at "the deteriorating situation in Fiji. Since 2006 the Bainimarama regime has abrogated the constitution; detained political leaders; sacked the independent judiciary; censored the media; and restricted meetings of civil society, including church groups."

Ferguson said that despite commitments to hold elections in 2014, it is not clear that the regime intends to make good on its promise saying the "restriction of labour rights is part of a concerted campaign to curtail the human rights of the people of Fiji. The rights of workers in Fiji have been targeted through a series of decrees restricting labour rights, the most recent of which was aimed at essential industries."

FTUC General Secretary, Felix Anthony, says Urai and Gounder were simply doing their job and didn’t need to apply for a government permit to assemble.

“Normally if you had a public meeting you’d have to apply for a permit [but] this was not a public meeting,” he told Pacific Beat. “[Mr Urai] was on his routine visit to [a] resort to deal with some disciplinary measures that members had. We don’t believe that this called for any added permit whatsoever.
“This is absolutely unjustified and this is just another attempt by the authorities to intimidate unions, and attempt to try and ensure that there is absolutely no union activity whatsoever.”


Thursday, August 4, 2011

Liar Aiyaz Sayed Khaiyum hides behind more lies

LASULASU: Proven liar

The former bomb maker turned attorney general can be exposed again for the huge lies he tells to hide the truth about the decrees he and his cohorts are manufacturing to keep the people of Fiji under the thumb of the military regime while he and others line their own pockets with every opportunity they get.

We today reprint the interview Aiyaz Sayed Khaiyum did with Radio Australia just five weeks ago (June 29) where he tried to deny the existence of the proposed decree to strip unions and workers of their rights in the so-called interest of essential industries.

The decree is what led to trade unionist Felix Anthony, Rajeshwar Singh and Daniel Urai heading to Australia and New Zealand to rally support.

More importantly, Sayed Khaiyum's denial of any knowledge of the decree, which was gazetted yesterday, shows that he and his toy boy, Frank Bainimarama, cannot be believed when they say elections are on the way.

Coupfourpointfive would like to point out, too, that typical of the consummate liar, Sayed Khaiyum hides behind the bullshit line that interviewer, Melanie Arnost, has no ethics for asking him about the decree, despite telling Sharon Smith Johns she wouldn't.
And just as he was on his recent TV3 interviews, he came across as power hungry but well out of his depth so turns - as he did here with Radio Australia - to accusing the interviewer of giving him a hard time just because he came from 'a tin-pot country'. See for yourselves, folks, how he conveniently plays the victim when he is indeed the instigator and the oppressor.

Fiji government not talking about planned anti-union decree
11 17:04:37
Fiji's military regime has drawn up plans to amend union laws which, if enacted, will make union representation of workers in Fiji's national industries more difficult.

Radio Australia is in possession of the decree, but Fiji's interim government has refused to confirm the plan.

Presenter: Melanie Arnost
Speakers: Aiyaz Sayed-Khaiyum, Fiji's interim Attorney General; Attar Singh, Fiji Islands' Council of Trade Unions General Secretary; Grant Belchamber, Australian Council of Trade Unions' International Officer

ARNOST: The Employment Relations Amendment Decree 2011 has to be signed by the President Ratu Epeli Nailatikau.

It's directed at unions, workers and their representatives in Fiji's sugar and airline industries.

VOICE OVER: Effective decree on existing unions and active agreements.

Upon commencement of this decree, any union registered under the Employment Relations and Promulgation 2007 which represents workers employed by Critical
Corporations must re-register as a representative pursuant to this Decree.

Any and all office-bearers, officers, representatives, executives and members of a union which represents workers employed by Critical Corporations must, at all times, be employees of the Critical Corporation they represent.

ARNOST: The decree goes on to state if a union leader is no longer employed by that company... they aren't allowed to represent the workers either.

Any person who fails to comply with the decree could be fined up to fifty thousand dollars or face up to five years in jail.

Radio Australia approached Fiji's Attorney General Aiyaz Sayed-Khaiyum seeking confirmation the decree would be enacted.

With all the changes that are being made, is one of them a decree on existing unions?

SAYED-KHAIYUM: Where did you hear this from?

ARNOST: I actually have the decree sitting in front of me

SAYED-KHAIYUM: Wow. Well good luck to you.

ARNOST: Did you want me to read it out?

SAYED-KHAIYUM: No, absolutely not because I don't comment on conjectures or innuendos or decrees that who knows whoever's written it

ARNOST: It's um...

SAYED-KHAIYUM: I'm not going to comment on something that I don't have in front of me

ARNOST: It's about to be signed by the President.

SAYED-KHAIYUM: I also understand that you as a professional journalist had told Sharon that this was not going to be asked.

ARNOST: Ok so... there's no knowledge of the degree to your... that you're aware of?

SAYED-KHAIYUM: You don't have any ethics. That is precisely what I am talking about.

ARNOST: So you're not aware?

SAYED-KHAIYUM: Just because I come from a tin-pot country according to you, you think you can break all the ethics. Is that what it is?

ARNOST: No, that's not what it is.

SAYED-KHAIYUM: Would you do the same to some other government minister in Australia?

ARNOST: yes, we would.

SAYED-KHAIYUM: Probably not. No, if you said to them you're not going to do X, Y and Z. You wouldn't.

ARNOST: Well... you know we would. Well we just would like to find out.

SAYED-KHAIYUM: You're being dishonest. Thank you very much. Bye.

ARNOST: The Attorney General's referring to emails exchanged between Radio Australia and Fiji's Ministry of Information Secretary Sharon Smith-Johns.

On Tuesday June 28, at 3 past 12pm, Ms Smith-Johns wrote:

VOICE OVER: Call the AG at 2:45pm Fiji time. He will only discuss the new judge and comments he made on Australia and New Zealand, can you stick to those two topics please, he only has 5 minutes he is fitting you in between meetings. All other issues push back to me and I will deal with them. Thanks, Sharon.


Fiji Islands' Council of Trade Unions General Secretary Attar Singh says if the proposed decree is true... it could have serious implications for unions and their representatives.

SINGH: From the stories we hear, the employees from certain industries - industries which are identified as critical - only employees of those industries will be eligible to become union officials. Which will mean outsiders and professional unionists will not be entitled to seek election. It is also rumoured that it might mean the level of union activity... union activity will also be quite restricted. So what that will effectively mean... that unions will no longer be effective in getting out there towards their members. And that of course will make union activity quite restrictive in the workplace and also at a national level.

The Australian Council of Trade Unions' International Officer Grant Belchamber has seen the decree.... he says it's just one among many the ACTU's concerned about.

BELCHAMBER: We've seen four or five decrees since the military government abrogated the Fiji constitution. And they have removed rights, bargaining rights, appeal rights, nullified collective agreements progressively in Fiji. There are two more decrees. We've seen drafts of these. The vital national industries decree of 2011 and another decree: Critical Industries in Financial Distress. It looks like these are on the way. These will effectively abolish trade unions in Fiji in all the significant sectors of the economy.

ARNOST: And what can union representatives or members in Fiji actually do to stop this?

BELCHAMBER: It's a very difficult situation, when they're subject to summary detainment and harassment and assault. Fiji is actually a signatory to ILO conventions - International Labour Organisation Conventions - so we can take up these issues and cases in international forums. And we will. We'll be monitoring this. We'll be looking at it and ACTU executive next month will consider the situation in Fiji further. And we'll be in touch with our counterparts in New Zealand and internationally - the union movement international - to consider developments.


Daniel Urai out on bail after Nadi court appearance

Trade unionist Daniel Urai appeared in court a short time ago and has been bailed at large. A regime statement says he was charged with unlawful assembly but it's believed that in the Nadi Magistrates Court he was charged with one count of incitement. Dinesh Gounder appeared with him and has also been released. They are to reappear next month.

(Thursday 04 August 2011, No:1563/MOI)
Unionists charged with unlawful assembly

The Fiji Police Force has confirmed that unionist  Mr Daniel Urai  and a Dinesh Gounder  appeared at the Nadi Magistrate Court at 1.30pm this afternoon charged with a count of unlawful assembly. They have been released on bailed and are due to  re-appear at court on September 2, 2011.

According to the police, the individuals were conducting a union meeting without a permit as required in the Public Emergency Regulations or PER.

Ministry of Information permanent secretary Ms Sharon Smith-Johns said that it is clear that these unionists  failed to gather support from union members overseas and are now targeting local union members in an attempt to undermine government reforms.

“We would like to remind members of the public that the PER is still in force and should be observed,” Ms Smith-Johns said. “The law is clear in this regard and it’s a simple process of applying for a permit”, she added.

Fiji's illegal regime to try and pin sedition charges on union trio

TARGETS: Mara, Urai, Anthony and Rajendra Chaudhry at Australian democracy meeting.

The first of the three trade unionists on the illegal regime's hit list has already been taken in.

Daniel Urai was grabbed last night by a special team set up to arrest the unionists who've been in Australia and New Zealand recently, lobbying union affiliates to take industrial action against Qantas and Air Pacific, to hurt the regime.

Coupfourpointfive tipped previously the trio would be in the gun when they returned home and the first of the arrests has happened with Urai being taken in last night.

Sources told us just a day ago the regime was ready to pounce and intends to charge them with sedition.

In the course of the meetings in New Zealand and Australia, Urai, Anthony and Singh revealed the deteriorating situation in Fiji and also joined forces with former 3FIR army officer, Roko Ului Mara at pro-democracy rallies. 

The military dictatorship is also stepping up its offensive against Mara, with the Suva Magistrates Court extending the warrant for his extradition to December 21st.

It intends to send requests to every nation Mara visits, including the United States where he is heading to after Samoa.

Wednesday, August 3, 2011

Military dictatorship uses new decree to put the boot into unions

UNITE UNION WORKERS ON THE PICKET LINE IN NEW ZELAND: A scene you won't find in Fiji under the new Essential National Industries Employment Decree thanks to the ill-hand of Aiyaz Sayed Khaiyum and cohort David Pflieger.

Fiji's corrupt leadership today went a step further in its efforts to control and oppress, gazetting the horrendous new Essential National Industries Employment Decree which strips workers and in particular, unions, of power.

As tipped by Coupfourpointfive four months ago, under the new decree, workers and unions are clearly muzzled by the draconian protocols, supposedly aimed at 'ensuring the viability and sustainability of certain industries' essential to the economy.

The discerning will note quickly, though, that the new edicts are tailored to give absolute powers to the Regime and Corporations like sugar and the airlines, which are run by their incompetent mates, with the rights and terms of condition of employment of workers rendered meaningless.

The Essential National Industries Employment Decree rules out:

1) Strikes, job actions, sick outs, slowdowns or other financially or operationally harmful activities at any time for any reason for designated corporations

2) Union efforts to register themselves as a representative of a Bargaining Unit, union efforts to influence the outcome of collective bargaining, and disputes over the interpretation or application of any collective agreements.

The decree also states that if parties have not agreed on a new or successor collective agreement by the period stated, the Bargaining Unit through a secret ballot verified by the Minister may go on strike or the employer may implement a lockout. But this can only be done after giving 28 days to the Minister and on written approval from him.

It also rules out working on Saturday, Sunday or Public Holidays, overtime pay to pilots, airline crew or engineers employed and employers deducting union fees for employers.

Any person, body, union rep or worker who fails to comply will be liable for a $50,000 fine or a maximum of five years imprisonment and in the case of a union body, a fine not exceeding $100,000.  No court will be able to challenge the legality of the decree.

Editor's Note: Full analysis coming up tomorrow. 

More knots to unpick in the Muskan Balaggan case

CHAUDHRY: Still in Australia.
There is little doubt the military regime's dictatorial Attorney General, Aiyaz Sayed-Khaiyum, tried to influence Indian national Muskan Balaggan to implicate Suva lawyer Rajendra Chaudhry on a rape charge.

Since then Balaggan, who was staying at Chaudhry's home after he offered her accommodation as surety to secure her bail after she was charged for trying to smuggle cocaine into the country early this year, has withdrawn her complaint against Chaudhry.

Her 6 page statement given to us dated 22nd July was published in full last night. The statement was written by Balaggan but was not given to police, raising the question: what does she intend to do with it and where will this take the case, which is said to be still open?

Given her admission and accusation against Aiyaz Sayed Khaiyum and her subsequent charging by police for giving false information about Chaudhry raping her, the question that also must be asked is this: why is Rajendra Chaudhry still not back in Fiji - more than six weeks after going to Australia and despite assurances in court by lawyers appearing on his behalf that he "is coming next week or in a week?"

And why did Rajendra's wife lodge a police complaint accusing Balaggan of stealing her mobile phone and clothes? This, well after she left the Chaudhry home to be with her uncle Ranjit Singh in Ra. It is clear Rajendra's wife lodged the complaint after Balaggan reported Chaudhry Junior allegedly raped her. 

If the rape or any sexual incident did not happen (as stated by Balaggan in her statement) why the need to frame the Indian woman?

In light of the above questions, we have made further inquiries. And we can reveal that Balaggan was seen in the company of Rajendra Chaudhry's office staff on July the 22nd entering a pet shop in Flagstaff - barely two minues walking distance from the lawyer's office.

The owner of the pet shop is one Sher Bahadur. It is Bahadur's stamp and name that appears as a witness on Balaggan's statement.

So who urged Balaggan to make the statement? Was she forced or influenced? The answer, it would appear, is known only to Muskan Balaggan and Rajendra Chaudhry (who is believed to have opened a new office in Sigatoka) or his office staff.

Meanwhile, information has emerged the illegal AG's office was recently involved in other efforts to interfere with the judicial process. Sources say a law clerk from the AG's office was seen in the office of a well-known lawyer 'negotiating' the release of a millionaire businessman. More to come. 

Tuesday, August 2, 2011

EXCLUSIVE: Fiji's illegal attorney general implicated in plot to charge former PM's son with rape


The woman who alleged and then withdrew a claim of rape against lawyer Rajendra Chaudhry (the son of Fiji Labour Party leader Mahendra Chaudhry) says she was pressed to make the complaint by the treasonous attorney general, Aiyaz Sayed Khaiyum, who promised to drop the drug charges against her, give her immunity and get her to Melbourne.

Muskan Balaggan says in a sworn statement sent to Coupfourpointfive that she met Khaiyum in Suvavou House in June and that the first thing he asked her was: "Can you tell me something about Chaudhry's politics?"

The meeting was set up by the Police Commissioner, Ioane Naivalurua, and one of his deputies after they were contacted by her uncle. Balaggan had been living with Rajendra Chaudhry, who had offered her surety for the drug charges she was facing, but she fled the house. In the police statement dated two weeks ago (July 22), she says Khaiyum promised her a deal but she came to have second thoughts. "I then realised my mistake in lodging a complaint against Mr Chaudhry and knew then that I had been used by AG and Commissioner and that their promises were false and they had no intention of helping me."

But she says Sayed Khaiyum police cronies turned on her, charging her with filing false information and keeping her in custody for five days where she was "tortured." She says they tried to make her go ahead with the rape charge against Chaudhry and that Fiji police have not closed the file on the  case.

Balaggan is to appear in court again soon and Chaudhry is reported to be still in Australia.

Read for yourself the Balaggan sworn statement that was sent to Coupfourpointfive:

Monday, August 1, 2011

Second series of Baledrokadroka videos: CRW Mutiny

The former land force commander, Jone Baledrokadroka, has released a second lot of videos revealing inside information about the 2000 coup.

In this second series of videos, released via the Matavuvale blog, Baledrokadroka shares with FDFM president, Suliasi Daunitutu, his recollections about the CRW Mutiny.

As with the earlier videos, these ones are in Fijian and we are unaware of any provided translations at this stage. 

The trials, tribulations and ironies of seeking justice for FNPF pensioners

By Professor Wadan Narsey

Editor's Note: These are the personal views of Professor Wadan Narsey, not those of USP where he is employed as Professor of Economics, but currently on leave

Fiji’s system of law and justice is at a historically defining point with the Burness/Shameem case against the FNPF.

The Burness/ShameemLaw case is seeking justice for current pensioners, by asking the Fiji courts to stop FNPF from implementing their plan to reduce existing pensions, on the grounds that such action would negate Burness’s basic human rights.

A simple case to understand and adjudicate on, you might have thought. But it is a nightmare, even for an educated lay person, to read through (a) the submission by ShameemLaw for pensioner David Burness and (b) the judgment so far by Judge Hettiarchchi – and it is a nightmare caused largely by the debilitating demonic presence of the Military Decrees.

While this case is important for FNPF pensioners, it is far more important for the Fiji economy as a whole, because the planned FNPF action strikes at the heart of private property and legal contracts, both of which are at the core of all business transactions in Fiji and globally.

The Burness/ShameemLa case should therefore be of great interest to Fiji’s business interests, Chambers of Commerce, Employers’ Federation and all investors in Fiji (not that any of them would support the case financially). The resolution of this case will be a defining moment for Fiji’s system of laws and justice.

Basic Human Right to Justice
Every decent civilized society tries to ensure that each and every citizens is able to ask for, and receive justice in their disputes, based on the rule of law, and increasingly in recent years, by appealing to the United Nations Declarations of Basic Human Rights.

The 2010 Report of the NZ Human Rights Commission on Human Rights in NZ, written without any legalistic jargon, stated clearly that (p.89)

1) The law must be accessible, intelligible, clear and predictable
2) Fundamental human rights must be protected
3) Civil disputes should be resolved without prohibitive cost and in a timely fashion
4) Ministers and public officers at all levels must exercise the powers conferred on them        reasonably, in good faith, for the purpose for which the powers were conferred and          without exceeding the limits of such powers and
5) Adjudicative procedures provided by the State should be fair.
Judge for yourselves how the current case against FNPF will be assessed according to these sensible principles.

The ShameemLaw Arguments
ShameemLaw reasonably asked for relief from the courts:  a declaration that the Applicants’s (Burness’) pension not be reduced; declarations that the proposed review was a breach of the contract and that the FNPF plan to reduce the pension of the Applicant would constitute a breach of his human rights; and that the review of the FNPF Act be postponed until there had been a Commission of Inquiry in the planned Review (also sought of the Courts).

    ShameemLaw cautiously noted “Of course the Constitution of 1997 has again been abrogated (it is said) and there are many Decrees in place now to emphasize this time and again so clearly the Constitutional Redress application process is not available to an applicant. ....  It is not an abuse of the Court process for the Applicant, David Burness, to make his application in this way since all other procedural avenues for human rights redress, previously provided by the Constitution, are closed to him”.

[I add the word “cautiously”, because Dr Shaista Shameem (with Neel Shivam) had also fought the Chandrika Prasad case in which Anthony Gates had ruled that the attempted 2000 abrogation of the 1997 Constitution by Bainimarama was in fact  invalid. Might that one day be the case with the 2009 purported abrogation?]

ShameemLaw reassured the Judge that “the applicant David Burness has no desire to challenge the revocation of the 1997 Constitution by his application. He wants to claim his right to a pension pursuant to the Human Rights Commission Decree”.

As ShameemLaw pointed out, Article 8 of the Universal Declaration of Human Rights states clearly:  “Everyone has the right to an effective remedy by the competent national tribunals for acts violating fundamental rights granted him by the constitution or by law”

And Article 10: states “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations…”.

All quite reasonable, one would have thought:  a citizen with a just grievance against FNPF, appealing to the Courts for a fair ruling, even within the constraints of an allegedly abrogated Constitution and restrictive Military Decrees.

But the FNPF and Regime lawyers (D. Sharma and S. Sharma) claimed that the Burness application “discloses no reasonable cause of action…; is scandalous, frivolous or vexatious; or may prejudice, embarrass or delay the fair trial of the action; or is otherwise an abuse of the process of the court”.

     What? Our pensioners’ and tax-payers’ money is being used to pay lawyers to offer this contemptuous “clutch at a straw” in order to defend FNPF’s unjust plans to hurt pensioners’ interests?  Where is the good faith of FNPF’s public officers, the FNPF Board and their lawyers in this very genuine case?

What Judge Hettiarachchi said (read his full judgment, please!)
The Hettiarachchi Judgment, while perhaps clear to the legal profession, has many surprising statements (surprising to pensioners) implying that there is no solid evidence that the FNPF is planning to reduce pensions and harm the interests of pensioners, including that of Burness.

Paragraph 8: Upon perusal of the affidavit and its annexes, I am unable to satisfy myself of any probable basis on which the human rights of the Applicant could be violated by any reforms that could be introduced to the FNPF.

Paragraph 9: the Applicant has even failed to present adequate material explaining how his human rights will be violated by any reforms that could be introduced to the FNPF.

Paragraph 15: ... the applicant merely relied on a statement of the CEO of FNPF. It is further alleged that by the proposed reforms to the FNPF, the applicant’s pension would be reduced by 64%. 

Paragraph 16:  It is not stated the source from which the Applicant got this information.

Paragraphs 22 and 23:  the Applicant has manifestly failed to establish that there is a serious question to be tried... and therefore I strike out the Applicant’s application for an injunction”.

Reading this, many pensioners will be tearing out whatever little hair they have left on their heads, or at least scratching their bald heads.

Who in Fiji has not heard and read the massive public campaigns by FNPF on TV, radio, newspapers, public meetings, all stating that current pension rates were not sustainable and would be reduced; and that existing pensions were allegedly “unfair” and needed to be also reduced?  Why indeed would FNPF bother to appear in court and waste their time with expensive lawyers to oppose a motion trying to stop it from reducing pensions, if FNPF had no intention of reducing pensions?

An ordinary person in the position of the learned Judge might simply have asked FNPF, there and then in the courts:  What is the nature of the reforms that you are planning and you have been publicizing for six months? Why have you not told the public  exactly what you are planning to do?.  Is it correct that you intend to reduce the annuities of some pensioners, including that of David Burness who is here in court today before me, seeking justice? Why are you not giving the public all the Reports that outline what is happening to the FNPF’s sustainability, etc. etc. etc.

But no doubt in the legal world, the learned Judge can only “judge” on the basis of what is placed before him, not what is out there in the media, and even flooding the public eye.

Justice Hettiarchchi instead pointed out (Paragraph 36):  “The Applicant has not observed the correct procedure laid down in the High Court Rules whilst filing his applications for injunction and the substantive action.”
To his great credit (one must not under-estimate the implicit pressures on him to just throw the case out),  Justice Hettiarchchi concluded “However, I am not inclined to decide the fate of this action purely on technical and procedural grounds” because of its “significant national importance”.

He reminded ShameemLaw (Paragraph 48):  The exact nature of the proposed reforms, its effect on the Applicant’s pension benefit, to what extent that the general public are allowed to submit their views on the proposed review, and the procedure which is followed by the FNPF Board are of paramount importance to this action, but the applicant has failed to tender sufficient evidence with regard to the abovementioned facts.

Justice Hettiarchchi very fairly conceded (Paragraph 49):  given that the matter is of national importance, I am of the view that the Applicant should be granted an opportunity to rectify his procedural and technical errors in the pleadings.

The Judge granted the Applicant (Burness/ShameemLaw 21 days to rectify procedural errors and file proper pleadings together with the necessary and relevant documentary evidence.  The Respondents were granted further 14 days to file their response.

Need to focus on rights to personal property and sanctity of contracts?
Globally, the business world does not give a jot for the “general human rights” of ordinary people, especially those who cannot afford smart lawyers.  But they do care about property rights and the sanctity of legal contracts, at the heart of the business world.

It is extremely important therefore to get the full moral support and interest of the business and investor community, by ensuring that the legal case against FNPF highlights also the legitimate property rights of the FNPF pensioners and the “sanctity of their lawful contracts” with FNPF.

Article 17 of the Universal Declaration of Human Rights says “Everyone has the right to own property” and “no one shall be arbitrarily deprived of his property”.  And by all relevant criteria, FNPF annuities and pensions are property, guaranteed by a contract.

When pensioners reached 55, they were required by the FNPF management (and FNPF Act) to sign Form 9-OP and to declare whether they would take a pension (single or joint) or they would take a lump sum, or some mixture of lump sum, joint or single pension. [Pensioners, you can download Form 9-OP from the FNPF web-site, in case you have forgotten what it looks like].

On Form 9-OP, the FNPF informs the retiree that if he chooses to take the pension options, he will receive exactly this or that annuity (annual sum of money in dollars, and exactly this or that precise percentage of his final balance) payable for his lifetime (single pension) and the lifetime of his last surviving partner (in the case of the lower double pension). These percentages were was set by Parliament originally at 25%, and by another Act of Parliament in 1998, gradually reduced to 15% currently.
Through the 9-OP Form, FNPF sternly warns “Once you have made you (sic) choice it is final and cannot afterwards be changed or revoked.” 

In other words, the die is cast for you, the pensioner. You have entered a legal contract which cannot be changed in any way, by you.  But apparently, FNPF thinks that it can breach this contract.

Form 9-OP warns that if the retiree does not notify the FNPF within 2 months of receiving that offer, “it shall be deemed that you have opted to take the full lump sum and a lump sum payment will be processed. This cannot be changed or revoked later

Two conclusions follow from this offer in Form 9-OP.  First, it was the FNPF which offered and promised clearly the exact benefits which the pensioners would receive for the rest of their life (the pensioner’s “consideration”) in return for leaving their savings with the FNPF (FNPF’s “consideration”).

Second, the FNPF recognized that the savings of the retiree were his personal property to be taken either as a lump sum, or as an explicitly defined annuity until death of the beneficiary, or some combination of both.

FNPF is a corporate body bound by contracts
How horrifying for pensioners who have worked all their lives and been legally forced by the laws of Fiji to deposit their life savings with FNPF, to hear in court the FNPF lawyer (Davenesh Sharma) arguing that “there is no legal entity such as the name of Fiji National Provident Fund, so the proceedings against this non-existent body is unsustainable” (as stated in the judgment). 

[Let us hope that Davenesh Sharma (former President of the Fiji Law Society) was merely amusing himself with the semantics or clutching at straws, and not seriously attempting to use this argument to scuttle justice for old age pensioners in order to be seen to earn his hefty lawyers’ fees.]

Because Article 4 of the FNPF Act states clearly that the FNPF Board shall be a body corporate and shall, by the name of "The Fiji National Provident Fund Board", have perpetual succession and a common seal .... The Board may sue and be sued in its corporate name and may enter into contracts.
Legal texts universally point out  (eg google “Mark Radcliffe and Diane Brinson”) that a contract is formed when one party (the "offeror") makes an offer which is accepted by the other party (the "offeree") usually with some mutual promises and consideration involved.

Here, a legal corporate body (FNPF) made a clear explicit offer to the retirees that should they choose the pension option (whether single, joint or combination) and leave their savings with the FNPF (FNPF’s consideration), they would receive in return  an annuity (expressed explicitly in dollars as a fixed percentage of their final balance) until they (or their nominated partner) died.

What could be clearer than this contract
Nowhere in the contract (the 9-OP form) is there any clause (in large or fine print) which warns the pensioners that their pension rate may be changed in the future by the FNPF Board for whatever reason.

Despite the implicit allegations by FNPF lawyers, nowhere in the FNPF Acts is there any reference whatsoever to the Board’s powers to vary the annuity rate, already offered to and accepted by pensioners, and approved by Parliament.

In law it is fundamental that  if one party meets its contractual obligations (the pensioner left his savings with the FNPF) and the other party doesn't ("breaches the contract"), the nonbreaching party is entitled to receive relief through the courts.  

Which is precisely what the Burness/ShameemLaw case is trying to do through Fiji’s courts.

Three breaches of the FNPF Act by the FNPF Board
Pensioners have reasoned rationally with FNPF management and the FNPF Board till they (the pensioners) are black and blue in the face.  The FNPF management and Board have not budged one inch.  They certainly are not resigning as has been suggested to them as the honorable thing to do.

I suggest that the learned Judge’s advice that “…the procedure which is followed by the FNPF Board are of paramount importance to this action” be taken literally to examine more closely whether the FNPF Board has been and is currently following the letter and spirit of the law embedded in the FNPF Act.

Perhaps the legal battle also needs to be taken to the FNPF Board members who can personally now be sued if they are failing in their duties as trustees of the FNPF Board.

Specifically, each of the FNPF Board members and collectively, may be charged for three breaches of the FNPF Act.

Breach 1 (pointed out previously)

The Board refuses to take advantage of Section 10 which clearly states that “If the Fund is, at any time, unable to pay any sum which is required to be paid under the provisions of this Act, the sum required shall be advanced to the Fund by the Government and the Fund shall, as soon as practicable, repay to the Government the sums so advanced”.

What?  The FNPF Board does not want to ask Government to lend money to FNPF to cover possible shortfalls in the future, while they have been happy to lend whatever to Government at the preferential interest rates for forty years?

Breach 2
Section 8 of the FNPF Act requires the Board to declare a rate of interest to be paid to members’ credit, “not less than 2 1/2 per cent per annum” provided that  “no rate of interest exceeding 2 1/2 per cent per annum shall be so declared, unless, in the opinion of the Board, the ability of the Fund to meet all payments required to be paid under this Act is not endangered by the declaration of such rate”.

The FNPF is currently planning to reduce pension rates for future pensioners and existing pensioners, alleging that current pension rates are unsustainable, and even alleging that these pension rates have been known to be unsustainable for more than a decade. Yet, year after year, the FNPF Board has declared a rate of interest higher than 2 ½ percent (including this year as well at 5 ½%) to be credited to Members’ funds.

The FNPF Board refuses to follow the FNPF Act which very specifically asks it to not declare a rate of interest above 2 ½% if the Fund is not sustainable.

While refusing to do what it is specifically required to do by the FNPF Act, the FNPF Board is attempting to do what is nowhere authorized in the FNPF Act, namely to reduce existing annuities contracted to existing pensioners or their beneficiaries.  How ridiculous.

Breach 3
Section 12 B of the FNPF Act which outlines the duties to be exercised by the Board as Trustees require that the Board must abide by all rules and principles of law which impose any duty on a trustee exercising a power of investment including all rules and principles which impose (a) any duty to exercise the. powers of a trustee in the best interests of all beneficiaries of the trust; (b) any duty to act impartially towards beneficiaries and between different classes of beneficiaries

The FNPF Act are currently stating that they will not reduce the existing pensions of some 89% of pensioners whose pensions are allegedly “below the poverty line”, but they will reduce those of the other 11% earning higher pensions. 

Where in the FNPF Act is there any mention of a “poverty line” to be used to determine differential annuity rates for pensioners? Which part of the FNPF Act authorizes the FNPF Board to reduce the pension of one group of  pensioners who are allegedly “above some poverty line”, which is moreover to be decided by themselves?

At no place in the contract agreement with pensioners (Form 9-OP) did the FNPF ever indicate that in future, they might treat low income and high income pensioners differently.

Should FNPF go ahead with their plan to reduce existing pensions, not only would they be breaching their contract with pensioners, but it would be a clear breach of Section 12 B of the FNPF Act which requires them “to act impartially towards beneficiaries and between different classes of beneficiaries.

In the NZ Human Rights Commissions legal principles outlined at the beginning of this article Principle No. 4 insisted that “Ministers and public officers must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers”.  That is certainly not the case here with the FNPF Board and the FNPF Management.

Pensioners need to seriously ask, should there be a separate legal case mounted against the Directors of the FNPF Board for breach of their duties as Trustees under the FNPF Act.

Pensioners need to set up a Trust Fund to which all pensioners can contribute to cover any costs being incurred in the Burness/ShameemLaw case.  Such cases should not be fought on “pro bono” bases.

Perhaps Transparency International also, with its focus on good governance by boards, should scrutinize the FNPF Board for its next international report on Fiji.

Future Judgment and the lurking “Decrees”
Pensioners need to read for themselves that the Hettiarchchi Judgment has paragraph after paragraph which suggests that any Decrees by the President may not be contradicted by any judgment in this FNPF case.

Paragraph 29:  “any person can apply to the High Court for redress for the contravention of his or her human right”subject to the proviso that “no proceeding which seeks to question or challenge the legality or validity of the Fiji Constitution Amendment Act 1997 Revocation Decree 2009, or such other Decrees made or may be made by the President, shall be brought before the High Court”.

The Judge observed that while the lawyers for FNPF/Khaiyum argued that the Burness/Shameem should have filed for a “judicial review”, the Judge held that “under the Administration of  Decree 2009, even the judicial review is not permitted if it challenges the Fiji Constitution Amendment Act 997 Revocation Decree 2009 (Decree no. 1) Act 2009 and such other Decrees made or as may be made by the President”.

Paragraph 45:   Whether it is human rights application or otherwise, it is explicit that the Applicant by his substantive action is purporting to prevent an amendment being made to the FNPF Act.  Since section 3 and 4 of the Administration of Justice Act 2009 expressly preclude Court from entertaining or hearing any application including judicial review challenging the validity of a Decree made by the President, it is incumbent on the applicant to justify the grounds upon which he instituted this action”.

Paragraph 46. Therefore if the Applicant intends to challenge the validity or legality of a Decree he cannot do it even by way of judicial review.

Paragraph 47:  The determination of issues, broadly described as political, relying on the exercise of non-judicial power, or adopting an executive or legislative character are normally non-justiciable issues and will fall outside of the jurisdiction of the courts.  Therefore the Applicant must show that he is pursuing purely a human rights application, which warrants further material from the Applicant as well as from the Respondents to determine the correct nature of this application.

Paragraph 50.  Moreover this application contains characteristics of legislative issues to a certain extent.  What will that mean?

The eventual judgment will be a land-mark decision- whether the Courts will uphold the basic human rights to personal property and the sanctity of contracts, or conclude that these must also be subservient to any Decree that the Military Regime will give the President to sign.

Why are Military Regime and Attorney General Co-Respondents in FNPF case?

The Burness/ShameemLaw case is essentially a pensioner’s case directed at the FNPF Board, not at the Military Regime.

It is a basic principle of good governance by any statutory board, that once appointed by the Government, the Board must be left totally independent to govern the institution according to its  charters and regulations, and fight its legal battles.

It is anomalous therefore that there are lawyers representing the Military Regime and Military Attorney General as co-Respondents in the Burness/ShameemLaw case against FNPF.

Is this yet more evidence that the Military Regime wishes to do all that is possible to ensure that FNPF has cash to keep lending to Government at the lowest interest rates possible.

In any case, it is good that the Military Regime and Military Attorney General are Co-Respondents in the case.

Because it won’t be the FNPF which will be changing the FNPF Act, but the Military Regime changing the FNPF Act by Military Decree to give FNPF some semblance of legality in reducing the pensions of Burness and the thousand or so others.

Protecting Human Rights under Military Decrees and Illegal Presidents
While the laws of civilized countries are largely grounded in democratic parliamentary processes or common law developed over centuries by a consistent judiciary, legal cases in Fiji are now waged under the shadows of the 2006 military coup and its Decrees.

A large part of the pressure to reduce FNPF pension is due to the 2006 coup which was supported by illegally appointed Presidents signing illegal Military decrees thereby  undermining investor confidence, reducing economic growth and the creation of new jobs and incomes, destroying the value of several large FNPF investments, and thereby constraining FNPF revenues.

Reading the ShameemLaw submission and the Judgment by Justice Hettiarchchi, it is clear that the protection of human rights in Fiji has been made incredibly difficult for all parties, because of the purported 2009 abrogation of the 1997 Constitution, and the restrictive Military Decrees signed by Military Presidents.
Those waging the case against FNPF have been totally frustrated by the media censorship and biases which has allowed the FNPF and Military Regime misrepresentations  to be thrust down the public’s throats, while the pensioners’ voices have been largely censored.   This media censorship persists because every month, an illegal President keeps signing the Public Emergency Decree.

The ShameemLaw Submission is clearly concerned that their legal case will come to naught, if the Military regime and the Military Attorney General go ahead in the meantime, to issue another Military Decree, signed by the Military President, to change the FNPF Act to allow the Board to reduce pensions, and to declare that the courts cannot hear any challenge to that.

The Judge would have to abide by that, as he is in no position to challenge the entire legal edifice that has been created by the Military Regime.

What a sad irony therefore, that pensioners and their lawyer feel that if their legal case fails, their only recourse will be to appeal to the same President to call for an independent Commission of Inquiry.

Truly, the trials and tribulations of pensioners seeking justice in Fiji are full of ironies.

The ShameemLaw case against FNPF is focused on basic human rights.  But Article 19 of the Universal Declaration of Human Rights also says:  “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.

Yet Fiji has stood by and idly watched its basic human right of freedom of speech trashed for more than a year and currently.

In the current FNPF case, other basic human rights such as personal property of pensioners, and the sanctity of their lawful contracts with FNPF, are under the microscope.

The coming Judgment for Fiji’s pensioners will be a historical defining point for Fiji’s system of law and justice.

Editor's Note: See following link for latest statements on FNPF