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.
Shameem Law await High Court decision
Publish date/time: 29/06/2011 [13:04]
Legal firm, Shameem Law is now awaiting the High Court's decision on whether it will hear an urgent application for an interim injunction to be granted to stop the enactment of the new FNPF Decree which proposes to reduce the members’ pension rate.
Lead Legal Counsel in the case, Doctor Shaista Shameem said her client, pensioner, David Burness wants the court to stop the implementation of the changes until a full judicial Commission of Inquiry is carried out into FNPF.
FNPF had earlier said that changes are expected to be implemented in phases from July 1st.
Doctor Shameem said the application of the interim injunction is necessary to ensure that the full hearing of Burness's court application against FNPF, the Republic of Fiji and the Attorney General is not affected on July 4th.
Meanwhile Doctor Shameem said other pensioners have contacted their firm, wanting to join the action.
She said they will consider each application on its merit.
We have received confirmation that the full hearing of the application will take place before High Court Judge, Pradeep Hettiarachchi next Monday.
Court papers were served on the FNPF, the Republic of Fiji and the Attorney General yesterday.
Story by: Vijay Narayan