THE PASSING OF DAVID WHO TOOK ON THE CORRUPT GOLIATH: Pensioner David Burness who took on the dictatorship to guard his and other pensioners pensions passes away - Khaiyum's decree robbed him!

Dr Shaista Shameem, legal counsel for the late David Burness; Burness was David Wilkinson's great grandson- the man who translated the Deed of Cession (right photo)

David Burness has gone, but the class action has not, and will not!

David Burness has passed away after a short illness. The one man who had the guts to stand up for his rights as an elderly pensioner against Khaiyum-Bainimarama dictatorship. Those who knew Burness say he  was the nicest, most gentlemanly, of men. Burness was David Wilkinson's great grandson- the man who translated the Deed of Cession.

Burness had hoped that the interim post-coup government and FNPF would respect his pension rights during his lifetime but it was not to be. His leadership encouraged others to take the bold step to make his application a class action. It was forestalled by Khaiyum's decree. How else could they have stopped Burness?

Fiji Pensioners website reports as follows: "Today Sunday 7th February  2016 Pensioner David Burness passed away after a short illness. David Burness, his and other senior citizens treatment under Decree 51 orchestrated by the office of the Attorney General on the basis on non factual information provide by the FNPF management was the reason this blog site was launched in 2011. Some will say the government actions accelerated Davids death, be that as it may, the battle will continue as David would wish. RIP David Burness, you will be missed by all who knew you."

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.

1. 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.

1. 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.

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

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

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

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

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

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

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

1. 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.

1. 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.

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

1. 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.

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

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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%.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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:

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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.

1. 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.

1. 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.

1. 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.

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

1. 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.

1. 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.

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

1. 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

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http://fijipensioners.com/2011/09/03/press-statement-released-by-counsel-for-david-burness-in-response-to-fnpf-advertisements/
http://www.radioaustralia.net.au/international/radio/onairhighlights/fiji-lawyer-condemns-decree-on-superannuation-fund
https://narseyonfiji.wordpress.com/2014/02/21/narsey-report-for-burnessshameem-case-with-fnpf-aug-2011/
http://fijisun.com.fj/2011/07/13/david-burness-a-personal-tribute/

PART 4—PROTECTIONS
Protections
11.—(1) The relevant provisions are not to be taken to be inconsistent with a human right or a similar right
of any person.
(2) Without limiting subsection (1), the relevant provisions are not to be taken to provide for a deprivation
of property of anyone.
(3) No court, tribunal or any other adjudicating body has jurisdiction or power to accept, hear, determine or in any other way entertain any challenge by any person to, or to grant any remedy or relief to any person in respect of:
(a) the validity or effect of the relevant provisions or of any regulations made under or for the purpose of any
of the relevant provisions;
(b) the validity or effect of any transfer, assignment or disposition made under or for the purposes of any of
the relevant provisions; or
(c) any loss or damage suffered by any person because of anything done in compliance or purported compliance with, or to give effect to, any of the relevant provisions.
(4) Where any relevant proceeding, claim, challenge, application or dispute of any form whatsoever is brought before any court, tribunal, commission or any other adjudicating body, the presiding judicial officer, without hearing or in any way determining the proceeding or the application, shall immediately transfer the proceeding or the application to the Chief Registrar of the High Court for the termination of the proceeding or the application, and a certificate to that effect shall be issued by the Chief Registrar of the High Court.

GIVEN under my hand this 25th day of November 2011.
EPELI NAILATIKAU
President of the Republic of Fiji

I’m Alright Jack, My Pensions Safe..

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