IN THE HIGH COURT OF FIJI CIVIL JURISDICTION AT SUVA HUMAN RIGHTS COMMISSION DECREE 2009 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 FNPFs failure to act in my interest as a beneficiary that I would like

to bring to the Courts 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

IN THE HIGH COURT OF FIJI CIVIL JURISDICTION AT SUVA HUMAN RIGHTS COMMISSION DECREE 2009 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

Address for Service

c/- David Burness, 44 Beach Road, Suva Point Mobile 9514751