A Judgement of Janus
André Heitz, WIPO
It is a welcome coincidence that we can report on Judgement No. 1275 of the United Nations Administrative Tribunal (delivered on 23 November 2005, notified on 31 January 2006) at a time when a “Redesign Panel” is considering the UN’s administration of justice system. The judgement, the facts behind it and the procedure that lead to it indeed illustrate some of the glaring deficiencies which afflict the system. I mean: the United Nations organisation as a whole.
The Facts
The facts are very simple.
Mr. Raed Al Souki, a Lebanese
national, held a one-year fixedterm
contract in the UNDP Office
in Abu Dhabi. On 27 June 2000,
three high-level representatives
of the Ministry of Foreign Affairs
came into the Office, pointed their
fingers to five General Service
Officials and requested their
immediate replacement by nationals
as well as, by the way, the cancellation
of the new salary scale
resulting from a salary survey conducted
three months earlier. You
may feel this description is
romanticized. If at all, it is only
slightly.
The matter was referred to
Headquarters. Nothing happened;
I mean: nothing effective. Four out of the five
officials accepted the termination indemnities,
and the fifth appealed upon termination,
on 31 October 2000, of a one-month extension
granted in order to fill the gap pending entry
into service of his Emirati replacement.
The problem having been drawn to the
attention of the Federation of International
Civil Servants’ Associations (FICSA), it was
picked up by its General Secretary of that
time, that is – self-congratulation rarely hurts– your not-so-humble servant.
An Astute Joint Appeals Board (JAB)
Mr. Al Souki wrote to the Secretary-General on
3 October 2000 to request a review of the administrative
decision not to renew his contract beyond
31 October. He was told by letter of 16 October 2000
that there was no justification for rescinding the
impugned decision. He lodged an appeal on 22
January 2001 and the JAB delivered its conclusions
and recommendations… three years later, almost
to the day.
We shall never know who the culprit for this
inordinate delay is. But we know for sure that
the JAB did a remarkable job in analyzing the
facts and drawing the legal conclusions. It “unanimously recommended that the Appellant be
awarded three months’ net base salary as compensation
for the prejudice sustained as a result of
UNDP’s impropriety.”
The Bright Side of Janus
Under circumstances that will be broached
upon below, the case went a step higher, to the
Tribunal. But, let us quickly go back to the time
frame: counted from the date of the
JAB report, the case took another two
years. That is not so bright.
The Tribunal relied very heavily
on the JAB’s factual and legal analysis.“The Tribunal concurs with the findings
of the JAB on these matters” is a
phrase which encapsulates the
Tribunal’s mindset. But it did not concur
with the evaluation of the compensation
and ordered payment of an
additional nine months’ net base
salary, essentially to compensate for
the Respondent’s failure to “act with
appropriate care and diligence in this
matter” and the excessive delay in the
JAB procedure leading to a violation
of the rights to due process.
The relief fell short of what was
requested, but, fair enough: the Tribunal
exercised its discretion and
judgement within the set limits.
The Tribunal also used strong language,
particularly at X:
“The record makes clear that the
UAE Government specifically directed
the hiring and termination of staff members
in the UNDP Office in Abu Dhabi
based solely on their national origin […]
The Tribunal concludes that UNDP’s
implementation of such directions was a
clear violation of international law, the
United Nations Charter, the Basic Agreement
between the UAE Government
and UNDP, as well as a violation of the
Staff Regulations and Rules. By allowing the UAE
Government to interfere in personnel decisions such as
those involving the Applicant, UNDP abdicated its
duty not to allow outside forces, including Member
States, to make such decisions.”
The Dark Side of Janus
Yet there is every reason to be – let us use the
language favoured by lawyers and diplomats – disappointed.
The hint for this is already in the above
quotation: the violated instruments are listed in
descending order of importance!
After some window-dressing in the form of a
reminder on its case law on ancillary matters, the
Tribunal went on saying that “As the Respondent has
violated his own rules, the Applicant is entitled to compensation”
(our emphasis). Hocus pocus, and a
violation of the Charter becomes a minor offense!
Worse, the Tribunal opined (at XI) that “[i]n
reaching its decision, the Tribunal is not unmindful of
the inherent complexities that UNDP faces with Member
States in matters such as these. Member States,
because they are contributors to the budget of UNDP,
may consider they are entitled to pressure UNDP in
respect of personnel and budget decisions […]”
In other words, the Tribunal built an automatic
attenuating circumstance into Article 100.1 of the
Charter, which reads in part: “In the performance of
their duties the Secretary-General and the staff shall
not seek or receive instructions from any Government
or from any other authority external to the Organization”.
The same applies to Article 100.2, “[e]ach
Member of the United Nations undertakes to respect
the exclusively international character of the responsibilities
of the Secretary-General and the staff and not to
seek to influence them in the discharge of their responsibilities”.
Thus, in the final analysis, the Tribunal
defeated the very purpose of Article 100 of the
Charter.
Ironically, the Tribunal states, at XIII, that “[j]ust
as staff members are expected to conduct themselves
with the highest level of integrity and professionalism,
so too must the Administration be held to comparable
standards”.
Comparable Standards?
The Tribunal’s leniency towards UNDP and
the United Nations Secretariat is surprising. As
regards the latter, despite the official documents– the correspondence from the UNDP senior officers
in Abu Dhabi, a letter by the Director of the
UNDP’s Office of Human Resources, the Notes
verbales from the Emirati Government, the
FICSA written interventions – the United
Nations Office of Legal Affairs claimed before
the JAB that the non-renewal of the contract “was
due to the staff reduction exercise undertaken by
UNDP Headquarters” (quoted from the JAB
report). In plain words, this is a deliberate
attempt to mislead (there is a shorter word for
this!). The JAB concluded in measured language:“The Panel found the Respondent’s argument disingenuous
and misleading”.
The Tribunal subsequently concurred, but did
not go further, either in respect of the UNDP
leadership or the United Nations legal services.
On other occasions, notably in Judgement
No. 914 (Gordon and Pelanne), the Tribunal felt “compelled to add that this is such a case of maladministration
that consideration should be given to
invoking staff rule 112.3…” (the provisions on
financial responsibility and the obligation for
staff members to reimburse the United Nations
in certain cases). In this case, obviously, it did not
feel so compelled. This begs the question: why?
This was not just a case pitting a (former) staff
member against an (anonymous) Administration.
It was one in which the overarching Staff
Federation FICSA made repeated calls for a
solution – insisting on the violation of Articles
100 and 101 of the United Nations Charter and
the need to preserve both the interests of
Mr. Al Souki and “the image and credibility of
UNDP in particular and the United Nations in general”
(quoted in the JAB report). An urgent
request to find a solution had also been made to
the UNDP Administrator in person by the
FICSA President and General Secretary in an
eye-to-eye meeting with him, at a time when the
issue was still “hot” (on 3 November 2000;
Mr. Al Souki’s contract had ended three days
before). The JAB “agreed with the Appellant that
the UNDP Administrator, despite all attempts made
by the Appellant as well as FICSA, failed to address
the matter appropriately”. So again, why?
Careless and Contemptuous Segments of
Administration
The above is eloquent enough on the attitude of
the UNDP Administrator – we won’t say “Administration”
for some senior officials have attempted to
discharge their duties with honour – and the United
Nations Office of Legal Affairs.
Furthermore, the Secretary-General makes it a
point to report to the General Assembly that, save special case, he accepts the JAB reports that have
been accepted unanimously. However, in this case
(or is it in all or most cases?), whilst he had thirty
days as per article 7.2(b) of the Statute of the
Tribunal to say a simple “yes”, the letter embodying
the “yes” was only issued on 29 July 2004, that is,
on the eve of the summer break… And, the letter
having gone astray without anyone caring to follow
the matter closely, Mr.Al Souki only became aware
of it on 11 October 2004.
This, again, begs a question. The Application to
the Tribunal was filed on 28 May 2004. Of course, it
had already been notified to the United Nations
when the letter was drafted; in actual fact, the
Office of Legal Affairs had requested an extension
of its time limit for the Reply on 24 June. So, was the
letter a genuine decision of the Secretary-General,
or an attempt to defuse a case that could have devastating
consequences on “the image and credibility
of UNDP in particular and the United Nations in
general” (see above)?
Well, in the light of the incidents described
below, we simply cannot exclude the second term
of the alternative.
Back to some more trivial issues. The United
Nations Office of Legal Affairs has requested
several further extensions of its time limit for the
submission of its Reply to the Tribunal. The last
one was filed on the very last day of the period
allowed, without any statement of reasons, making
it close to impossible to the Tribunal to refuse to
grant the extension. This, in plain language, is contempt
for Court. But the Tribunal did not pick it up.
from class justice. But they suffer
without doubt from a widespread
perception that there is class justice,
or no justice at all...»
A Tribunal Secretariat Under Influence?
How did Mr. Al Souki find out about the
Secretary-General’s acceptance of the JAB recommendation?
Because he received the following
Email from the Tribunal Secretariat on 11 October
2004: “We have been advised by the Respondent that
the Secretary-General has accepted the favorable recommendations
from the JAB in your case. I assume
that you have received a letter to this effect. In view of
that decision, please advise us as to whether you wish to
withdraw your Application.” (Our emphasis).
Prior to that, upon the filing of the Application,
the Secretariat tried to have it withdrawn
on the ground that it was premature, the
Secretary-General always following up on
JAB reports. Needless to say that this was in
utter disregard of the strict rules on time limits
set out in Article 7 of the Statute of the Tribunal.
So we titillated the Tribunal Secretariat on this
and – please note: Article 7 of the Statute of the
Tribunal contemplates the case where there is no
decision of the Secretary-General on a JAB report –
we were told in a letter of 28 June 2004 that “[t]he
decision of the Secretary-General is an absolute necessity
[…] as applications are not filed against the JAB’s
recommendations, but the Secretary-General’s decision
thereon”.
One can only speculate over the reasons for such
extravagancies. We thought for a while that it was
incompetence, if not stupidity; this was not charitable
indeed. Then a colleague of ours knowing the
protagonists ventured that all this might have happened
upon instruction; this is even less charitable.
This, in all fairness to the Tribunal, was not
brought to its attention. It should be, however, to
the Redesign Panel.
La Fontaine’s Fable
The Animals Stricken of the Plague
In Gordon and Pelanne, the “culprit” – oh!
The case was about procedural irregularities in
the filling of two D-1 posts – was U.N. Assistant
Secretary-General Dennis Halliday. At the time
of the judgement, he had already resigned from
his post of Humanitarian Aid Co-ordinator for
Irak in protest over the situation created by the
U.S. driven U.N. sanctions. So, in United
Nations terms, he was at best one Mr. Nobody.
Now, in Al Souki, the Administrator of UNDP
was Mr. … And when the case was being considered
by the Tribunal, he had moved to the United
Nations as … And, by the time this article is
published, he will be…
Les jugements de cour vous rendront blanc ou noir.»
“Thus human courts acquit the strong,
And doom the weak, as therefore wrong.”
In Conclusion, Dear Redesign Panel and
Colleagues,
We won’t claim that the United Nations suffer
from class justice. But they suffer without doubt
from a widespread perception that there is class justice,
or no justice at all.
We will affirm the right for a tribunal to get it
wrong. In this instance, the JAB got it right – a
shining testimony to the fact that the system can
work – and the Tribunal got it right in its conclusion,
but utterly wrong in the reasons.
The Administration of Justice in the United
Nations suffers in our view from some systemic
deficiencies (such as the obligation for the
Tribunal to always specify a compensation in lieu
of specific performance), and assuredly from a considerable
drift away from principles and proper
procedures.
Both the perception and the drift call for an
aggiornamiento…
…And Al Souki was not a case of violation of the
Organisation’s own rules, but of the Charter. The
CHARTER. The C. H. A. R. T . E. R.
© 2006 UN Special |