What integrity are we talking about?
A few comments about the administrative circular on “Whistleblowers Protection”
Xavier Campos, UNOG
“Nothing in the present terms of reference shall limit the duty of staff members to report misconduct” (Terms of reference for a UN Ethics Office)
A) Efficiency, Competence and
Integrity as “legal requirements” for international civil servants
When referring to the nature and the role
of “public administration” (or civil service,
for that matter) contemporary constitutional
texts (from rule-of-law abiding countries)
invariably depict it as a group of women and
men “efficiently serving the general interests,
in full compliance with the Law”. Undeniably,
back in 1946, the idea of establishing an
international civil service dedicated to the
goals of peace and justice (to which later
development was added) must have sounded
almost revolutionary. Granted, there had
already been a (prematurely aborted) experiment
during the League of Nations interlude, but the very concept of
creating a core of truly independent civil servants to be recruited (and
promoted) according to criteria of “efficiency, competence and
integrity” was indeed well ahead of its time. However, what was then
an international civil service in its infancy stages, has now reached the
mandatory retirement age. Unfortunately, sixty years later, we must
acknowledge that the “visionary project” breaking new ground has not
really developed according to plan. Meanwhile, other “competitors” (or
rather “comparators” in spite of what ICSC may say), such as the European
Civil Service are now setting the standards for administrative
excellence (if you have any doubt, just click on any of the multiple
sites providing information about the EU system,
such as www.unionsyndicale.org or
www.euro-ombudsman.eu.int, to find out
what “good administration” is all about). At
the UN the “international civil service” visionary
idea has never developed its true potential,
but is now decried as being helplessly
outdated. Right now, UN employees have neither
the status of real “civil servants” (all
over the world, the true mark for the independence
and impartiality of civil servants
are permanent contracts) nor the contractual
rights and social protection tools, such as
access to courts, of private sector workers. In
fact, while it looked great on paper, one cannot
help but believe that, in the aftermath of
the Second World War, this “visionary” idea
must have been looked upon with certain disbelief
and, why not say it, discomfort, by the
founding fathers, the “powers”, and, particularly,
the “superpowers” of the time (remember,
there were at least two back then). Independence is not necessarily
what superpowers have in mind, or what they expect, when they
think of the UN. Was there ever a fair minded attempt to afford such
lofty ideas a real chance? Historians will undoubtedly tell us one day.
What we already know, for sure, is that the “equitable”, or rather, the “egalitarian wish”, also referred to in art. 101 of the UN Charter, namely “due regard shall be paid to the importance of recruiting the staff on
as wide a geographical basis as possible”, was, by design or neglect,
almost from day one blown out of all reasonable proportion to become “the” criterion and the sine qua non (officially, at least) for staff recruitment
and advancement purposes. To the point that, when gauging the professional merit of aspiring candidates,
the non-binding “rule of the
country of origin” has become the one
and only “conflict rule”, to the detriment
of the binding “legal” (and legitimate)
requirements of the Charter. On
second thoughts, I should rather say,
that it used to be the only criterion,
for, in the meantime, the final blow,
the “coup de grace”, to an efficiency
and competence based staffing system
has come from the “temporary” special gender measures. By the
way, just how much longer they will
remain “temporary”, before they
finally become “continued” – like our contracts – is, of course, a well-kept administrative
secret. No matter how one looks at it, any
policy bent on giving direct or indirect preference
to staff members on the basis of gender is not only contrary to the “legal” requirements
of the Charter, but also to the “wishful”
geographical representation criterion. And, of
course, it is blatantly discriminatory. Surprising,
the way some member states that champion equality of chances between sexes can
condone such overt de jure et de facto discrimination
of their male nationals working at
the UN (something they would never tolerate
in their respective jurisdictions). “Positive” or “revert” discrimination is incompatible with
the duty of employer integrity, contractual “fairness” and good faith.
B) “Integrity” as an inalienable
Human Right
So much for “efficiency and competence”
(there is no need to elaborate on “independence”
either). So, what about “integrity” as a
requirement for the international civil service?
In that respect, like in all others, UN internal
staff policies have been “overtaken” (and left far
behind) by the codification and progressive
development of human rights law and social policy
standards, particularly in the European context.
Over the last decades, the world has witnessed
an impressive and sustained effort by
international organizations (including the UN
system organizations) to integrate human rights,
democratic and good governance standards in
the main stream of their activities worldwide.
Regrettably, all the initiatives designed to promote
human rights, democratic justice and good
governance have systematically ignored the «ugly reality at home», namely, the appalling
human rights observance, access to justice and
good governance record of the UN system organizations.
International civil servants have
become the «missing link» in the process. They
have been expected to «actively sell» the new
emphasis on human rights, justice and democratic
governance approaches to «extra-muros»
audiences, while being deprived, as employees,
of the enjoyment of the rights and standards that
the UN are proclaiming and enforcing worldwide.
Only this can explain that the concept of “integrity” that in the European Charter of
Human Rights stands for an inalienable human
right (the right not to be the victim of physical
or moral aggression), in the United Nations is
(still) interpreted exclusively in terms of an
obligation imposed to staff members (“integrity
includes, but is not limited to...”), and, as of late,
through the promulgation of the “rules” relating
to the Ethics Office, construed to be the basis
for compulsory reporting of instances of fraud
and abuse.
Facing responsibility as an
employer: employees
contributions to the fight
against corruption and abuse
must remain of a voluntary
nature
All over the (civilized) world,
contributions made by employees
to support institutional efforts
towards the identification and the
punishment of abusive, fraudulent
or corrupt practices in the workplace
have a voluntary character.
They cannot (and are not supposed
to) substitute for managers’
responsibility, or to exonerate employers
from their obligations. Employees’ or
workers’ input cannot replace and cannot be
used to “camouflage” the direct responsibility
and the liability of those who have been
appointed by employers precisely to prevent,
deter and punish behavior that, by definition,
is inadmissible and incompatible with
the Law, the standards of conduct, the values
or the economic and professional interests of
the employing organizations. When serious
abuse and criminal misconduct are indeed
brought to the attention of those responsible
for the management of the organization and
they decide not take action, they become
ipso facto accomplices or even coauthors
in criminal or negligent
behavior. This inescapable legal principle
cannot be ignored or obscured by referring to
a theoretical “duty to report misconduct”, in a
misguided attempt to transfer that responsibility
to employees.
Ethical committees and “codes of
conduct” cannot replace effective access
to courts of law
Whistleblowing and voluntary reporting on “misconduct” (a vague concept that in huge
bureaucracies like the United Nations can
encompass all kinds of unacceptable behavior,
from petty irregularities, such as parking violations to serious crimes, such as extorting
sexual favors for professional promotion or
non-dismissal or full-fledged racketeering)
cannot compensate for the lack of judicial
bodies equipped to pass impartial, independent
and competent judgment on allegations
of tort and criminal conduct with all due
process guarantees. Moreover, administrative
instructions cannot replace constitutional
and legal norms and guarantees. According to
the principle nulla poena, nullum crimen
sine lege in order to repress and punish serious
crimes inside international organizations,
such as the United Nations, misconduct must
first be codified, or, at least, characterized to
identify the different kinds of prohibited
behavior that may give rise to administrative,
civil or criminal responsibility. “Ethical Committees”
are tools created by management in
order to give advice to it about the most
appropriate ways to discharge its functions
and fulfill its responsibilities. They are not
and cannot replace independent tribunals or
courts of law, just as “staff rules and regulations”
(which have only an administrative
nature) cannot substitute the constitutional
and legal norms that underpin fundamental
concepts for democracy and state of law in
the realm of civil and criminal responsibility.
Whistleblowers’ protection programs
cannot become “information management
tools” to foster impunity
There is no substitute for independent
courts of law to establish in all impartiality
and without “institutional bias” administrative,
civil or criminal responsibility for prohibited
behavior. And there is no excuse for
employers (acting through Management) to
elude their obligation to guarantee a “corruption-free” and “abuse-free” working environment
for employees. Therefore, in an organization
like the United Nations, characterized
by the inadequacy of codified norms, pervasive
bureaucratic opacity, lack of effective
access to courts and overall lack of managerial
accountability, putting the onus on employees
in terms of compulsory reporting of “misconduct”,
while threatening them with
disciplinary action if they fail to “substantiate
their claims” is tantamount to adding insult to
injury. In a system where even judgments by
the UN Administrative Tribunal condemning
managers for abuse of power or conflict of
interest are hardly ever followed by conmensurate
sanctions, the ultimate result of this “comitology of justice” will be the preservation
of impunity. If we want to promote ethical
standards of conduct, we must first reform
and upgrade our “internal laws” incorporating
the jus cogens and erga omnes norms and
principles proclaimed by the United Nations
for the rest of the world and we must guarantee
unrestricted and effective access to competent,
impartial and independent judicial
bodies for United Nations employees, as part
and parcel of “the most favorable employment
conditions” that are formally afforded to
UN employees by our “quasi – constitutional”
principles (the so-called Noblemaire and the
Fleming Principles).
C) The fight against corruption on
an equal footing: Empowering the
staff as a first step for real reform
Pretending that all complaints about misconduct
or retaliation must be centralized and
screened by a Committee whose membership
is selected and paid by and reporting to Management
(and to employers) alone, that will
be able to decide “to act or not to act” according
to its “discretionary powers”, negates the
very existence of democratic participation
and social rights of employees. In addition, it
does not provide a departure from the present
situation. Even if and when it decides to “seize itself of a complaint”, by its very
nature, not being a judicial body, the “Committee”
will be incapable of satisfying essential
standards of due process, for the complaining
as well as for the accused parties.
Thus, the “Ethical Committee” is, at best,
nothing but a product of the predominant “paternalistic” view on staff (staff as “assets”,
not as “subjects”). At worst, it is a relict of “Enlightened Despotism” à la Ancien
Régime, meant to be an “Ersatz” for effective
judicial remedies. The United Nations cannot “reinvent” or re-write judicial review standards.
They cannot subordinate the welfare of
their employees to an arbitrary interpretation
of les faits du Prince. We do not live in the
Eighteenth Century and the United Nations
are not and should not act like a “Banana
Republic” of sorts (an archipelago of “non-Law” duty stations surrounded by an
immense ocean of democratic rule of law
abiding societies in Europe and elsewhere in
the world). To be able to uphold their rights,
staff need to be empowered to play a full partner
role, on an equal footing with Management,
in the fight against corruption and
abuse, but with all the necessary guarantees.
Through the “Global Compact Initiative” the
United Nations are telling their “partners” and
counterparts all over the world what are the “basic
rules”, with regard to human rights and fundamental
freedoms, social dialogue and the fight against
corruption, that every decent corporate member
of the human family should respect (check
www.globalcompact.org “the ten principles”).
At the same time the United Nations, as an
employer, refuse to incorporate and implement
those same principles and basic norms
to the benefit of “international civil servants”.
This double standard can no longer be tolerated.
The United Nations can no longer afford
to tell their interlocutors to «do as they say,
and not as they do». As a first step, pending
the real reform of our “internal justice”, we
must begin to “discover” and to practice
social dialogue. Specifically, we suggest that
all “whistle blowing” contributions from staff
be processed through a double channel, so
that staff have the choice either to submit
them either directly to the “Ethical Committee”
(or OIOS, or any other body or mechanism
reporting to Management), or indirectly
through staff representation councils and/or
unions. Empowering union representatives
would allow them to actively involve themselves
in the whistleblowers’ protection measures
(by providing advice on relevant standards,
drafting, documenting, supporting or
consolidating complaints and related reports,
or even submitting them on a confidential
basis or on their own behalf), thus helping to
put aside any fear of reprisal or retaliatory
action against the reporting staff members. Of
course, acting in that capacity they will also
be in a position to spot and to denounce inaction,
inadequacies, negligence or complicity
by those responsible for taking corrective or
punitive action. Can the United Nations afford
democracy and social dialogue? In any event,
we, union representatives are ready for that
challenge.
© 2006 UN Special |