BEFORE THE UNITED NATIONS APPEALS TRIBUNAL
COMMON CAUSE APPEAL FILED BY
S.P. SUNDARAM (R/28009), V.MUTHUSWAMI (R/63374) & G.S. SRINIVASAN (R/66715)
(SIGNATURES AND ADDRESSES INCL. CERTIFICATION ARE GIVEN AT THE END OF THIS DOCUMENT)
ON THEIR OWN BEHALF AND ALSO ON BEHALF OF OTHER RETIREES WHO
FILED EARLIER APPEALS SUBMITTED TO THE UNJSPB STANDING COMMITTEE
(and whose decision was conveyed in CEO/UNJSPF letter of 20 July 2009)
UNITED NATIONS JOINT STAFF PENSION BOARD
(CHOICE OF COUNSEL(S) TO BE DETERMINED and NOTIFIED TO UNAT, AS NECESSARY, INCL ORAL HEARING(S) IN THE PRESENCE OF APPELLANT(S) REPRESENTING THE COMMON CAUSE)
THIS APPLICATION SUBMITTED TO THE HONOURABLE UN APPEALS TRIBUNAL
TO APPEAL AGAINST THE DECISION OF CEO/UNJSPF
CONVEYED IN HIS LETTER OF 20 JULY 2009
Message of this application:
“Water the root and enjoy the fruit” - Maharishi Mahesh Yogi
I. INFORMATION CONCERNING THE STATUS OF THE APPLICANTS:
III. STATEMENT OF OUR PLEA/APPEAL INCL EXPLANATION
IV. LEGAL BASIS/ARGUMENT, incl. REQUEST FOR ORAL HEARING(S)
VI. ANNEXES I, II & III attached
I. INFORMATION CONCERNING THE STATUS OF THE APPLICANTS/APPALLENTS AND REASON FOR MAKING THIS COMMON CAUSE APPEAL:
1. The appellants (S.P. Sundaram, V. Muthuswami and G.S. Srinivasan) are all UN retirees living in India and leading useful life-styles befitting the organisation’s humanitarian goals with which they were privileged to be associated with in their long working-life. This team also represent a number of UN retirees who had earlier submitted in May/June 2009 similarly worded appeals to the UNJSPB Standing Committee (see Annexe 1).
2. Briefly stated, these retirees are concerned with and aggrieved by the lack of transparency, equity, fairness and natural justice in the manner in which UNJSPF has been treating the retirees – especially those who had opted for partial (1/3) lump sum commutation and reduced pension as opposed to regular pensioners. In response to recent appeals by many pensioners, UNJSPF/CEO decreed unjustly that the reduced pension should remain for “life time” though the lump sum gets recovered fully with sumptuous interest over a time period of 11-13 years. Neither explanation, nor any justification for the decision was offered, excepting for quoting the same articles 1(f) and 28(g) of UNJSPF Regulations that were earlier questioned in regard to their import and philosophy in the context of equal rights guaranteed by UDHR.
3. In the absence of any written contract/agreement between the two parties – UNJSPF and the retirees – in respect to life-time reduced pension, the denial to restore full pension even after the full recovery of lump sum + interest over years should be seen untenable, as this amounts to denial of equal rights and principle of equity as envisaged by the Universal Declaration of Human Rights (UDHR).
4. Many civilized/enlightened civil service pension systems consider the “pension” as deferred salary payments and valuable right in recognition of long years of devoted loyal service to the sovereign state. All the three branches of governance – legislative, executive and judiciary – have all recognised the importance of a well-developed civil service pension as sine qua non for ensuring an independent, efficient, effective, viable and continuing loyal civil service for good governance. Duties, rights and privileges of such civil service employees and retirees are protected by suitable laws of the country.
5. It is a common feature of any enlightened pension system to include the facility of commutation of a part of the pension into lump sum on retirement in order to overcome the sudden loss of regular monthly income and to facilitate into settling in retirement without any problem. Also, it is common that reduced monthly pension (after commutation) gets restored after a pre-determined period within which the commuted lump sum stands recovered with whatever nominal interest rate applicable as per the system.
6. Important to remember that not only is the international (UN) civil service (even after retirement) excluded from any national legal system, but also by being restricted from access to national courts to seek legal remedy. Additionally, the staff (and retirees) of international organizations comprise of people from various backgrounds, cultural and traditional systems and domestic legal systems, and all respect fundamental human values to equity, equality, fairness, and justice.
7. Such a situation makes it imperative for the international organizations to establish and maintain a well-balanced system of justice to avoid discrimination, inequity and unfairness in the treatment of issues concerning staff and retirees.
8. UN in its wisdom declared that the right to human development rests on the importance and application of the principle of equity, fairness and natural justice at both the national and international levels (see UN Charter, UDHR, UN doc E/CN.4/2003/25 on the right to (human) development and related documents on the subject).
9. UN Administrative Tribunals frequently referred to such foundational treaties, declarations and conventions as UN Charter and Universal Declaration of Human Rights as sources of law. Another source of law is the general principles of law comprising not just the general principles of administrative laws and rules of the member states but also the case laws and decisions of international tribunals.
10. By implication, not only UN urge states to comply with the internationally recognised standards of justice, such as due process and fundamental human rights, equity, fairness and natural justice, but the UN organization should also adhere to these standards within its own legislative, judicial and administrative systems.
11. It is therefore imperative that the regulations, rules and procedures of UN and family organisations, incl. UNJSPF should be in full accord with and in harmony with the UDHR and UN Charter. In other words, UN and its family organisations should remain models of good governance for all member states to emulate and build a sustainable human development matrix.
III. STATEMENT OF OUR PLEA/APPEAL INCL EXPLANATION
12. General areas of concern:
12.1 Ensure that the UNJSPF’s regulations, rules, and procedures are consistent with and harmonious to the fundamentals of UN charter and Universal Declaration of Human Rights. Review and remove all inconsistencies, convoluted wordings, and self-contradictions in the UNJSPF regulations etc. which can only breed unilateralism and arbitrariness in its handling of pensioners’ affairs. For example, the UNJSPF regulation article 1(f) and 28(g), read in conjunction with the article 43, cannot be construed/interpreted as life-time enforcement of reduced pension for 1/3 lump-sum recipients.
12.2 UNJSPF should become more client-friendly in dealing with retirees, signified by transparency and accountability and respectful of UDHR’s “right to information”. For example, UNJSPF could make information readily available thru its website on the fiduciary tables, and fiduciary recommendations, including those recommendations not accepted by the UNJSPB and reasons for such non-acceptance. Most national pension schemes like Indian (Federal and State) Governments Civil Pension Fund publish commutation tables and allied documents, including updates. on the public domain web sites.
12.3 In this broadband internet age, it should be easy to be honest, transparent and accountable. As such, the new age growing technology and inter-active websites should be employed to serve pensioners and beneficiaries effectively. For example, by introducing suitably designed e-governance system the participants/pensioners/beneficiaries should be able to contact and get answers/resolution of issues in a cost-effective manner, and should be able to review their own files for completeness or any requirement for submitting additional information.
13. Specific pleas/appeals for redress:
We find that the decision of the Standing Committee of the Pension Board was based on a cursory and incomplete consideration of our Appeal and is therefore unsatisfactory. Our contention is based on the following:
13.1 There is no, repeat no, Rule or clause in the UNJSPF Regulations categorically stating, even by implication, that the lump sum option binds the beneficiary to a deduction for life. There is, therefore, no justification for any contrary interpretation and/or practice.
13.2 The definition of "commutation" (Article 1f) also does not make such a definite statement. Furthermore, the qualification, "in accordance with the Actuarial Tables", we believe, also does not sanction the UNJSPF’s current practice of life-time enforcement of reduced pension. We would like to see what the Actuarial Tables actually says, and how it could be interpreted to mean that the commutation would be for life.
13.3 The undertaking signed by the beneficiary at the tense time of retirement is no legal contract or agreement in that it is merely an information sheet/instruction for payment (UNJSPF Form E/7) not signed by BOTH the parties in the presence of witnesses. Furthermore, the explanatory note under A(3) of the same form (Form E/7) contains factual misrepresentation, for example, quoting articles 28(d) and 28(e) which have no connection whatsoever and therefore, irrelevant.
13.4 There is no rationale behind the exclusion of the lump sum as a form of indebtedness. In point of fact and legal basis the Article 43 of UNJSPF Regulation should be applied, in letter and spirit, for the recovery of the lump sum as well – up to the amount of indebtedness, and no more.
13.5 Commutation of the pension is limited to a certain number of years in almost all National Civil Service Pension Schemes and UNJSPF policies and practices should also conform to such normal universal practice.
13.6 It is also significant that whereas most of the Regulations of UNJSPF have been amended over the years, to take account of changed circumstances, the lump sum provision and practices alone have remained constant, despite vastly changed circumstances like life expectancy, impacting on the calculation of lump sum commutation, review towards recovery amount and period of recovery. This practice is neither consistent nor fair. On the basis of such a periodic review, amounts of lump sum would have to be recalculated (upwards) and/or the level of deduction would have to be revised (lowered).
13.7 The continuation of the deductions beyond the full recovery of the lump sum (with interest and charges) creates two kinds of unequal beneficiaries - the ones who took the lump sum and the ones who didn't. This will amount to discrimination and would violate the Articles of the Universal Declaration of Human Rights and UN Charter specifically according equity, fairness and justice. Furthermore, the UNJSPF practices can also be proved as perpetrating non-compliance of other aspects of Human Rights.
13.8 The refusal of our plea purely on economic grounds would be improper as well, since this is a matter of fairness and justice, of equity and ethics and requires utmost precedence and significance towards establishing a system of fair and equitable social justice.
13.9 On condition of acknowledging fairness, equity and justice, it is still possible to strive for any suitable solution to ensure aspects of economic viability and long term sustainability of the UN Pension system. We are indeed open for dialogue and mutually beneficial arrangements.
IV. LEGAL BASIS/ARGUMENT, incl. REQUEST FOR ORAL HEARING(S), IF NECESSARY:
14. According to the ancient eastern traditional wisdom, “neeti” and “nyaya” (justice and fairness) are two sides of the same coin and they need to be reflecting harmony and coherence to ensure social realization of what is seen as a just institutional-arrangement to implement justice based on equity and fairness. The greatest injustice is when people cannot achieve their just goals because someone else with authority (e.g. UNJSPF et al) stops them.
15. Simply said, our legal basis and argument for the pleas explained above is nothing other than the foundational principles on which UN and its family of organisations should exist, function and sustain, viz. UN Charter and Universal Declaration of Human Rights (UDHR). The independent regulations, rules and procedures of each of the family organisations should not be ultra vires to those fundamental constitutional statutes (viz. UN Charter and UDHR).
16. The fact that such gross violations were allowed for decades of UN life should say something of its internal justice system, which, we pray and hope, the revitalised new avatar UN Appeals Tribunal will soon redress, and stop the delay and denial of natural justice.
17. UNJSPF financial infrastructure is based on mandated contributions from staff and double that amount from the employer organisations, to be prudently invested and managed in such a manner as to provide a well-defined pension benefits to the retirees during their life time and also those identified as beneficiaries like the surviving spouses, minor/disabled children, etc. By refusing to restore full pension to the 1/3 lump sum recipients/beneficiaries, when eligible, not only the beneficiaries are denied the rights but the employer organizations are in a sense “short-changed”.
18. While the benefits to the legally accepted beneficiaries are well-defined and represent a logical sense of equity and fairness, the retiree benefits do not manifest any sense of equity and fairness, especially for those of 1/3 lump sum recipients after full reimbursement to the UNJSPF of such lump sums plus generous interests over a period of time (eleven years or so). Refusal to restore full pension after the full recovery + interest on lump sums amounts to non-compliance of principles of laws concerning equity and fairness under any legal system.
19. Your kind attention is invited to the joint common cause appeal submitted earlier to the Standing Committee of the UNJSPB (Annex I), wherein we have noted how different articles of UDHR for basic fundamental rights – viz. Equity, equality, fairness and justice – appear to be not being applied by the UNJSPF in the treatment of some of the UN pensioners (viz. 1/3 lump sum recipients).
20. The two annexes attached to the appeal to the UNJSPB Standing Committee (supporting document as Annexe 1 for this appeal) indicate how the 1/3 lump-sum paid to those retirees get recovered over the period of 11 or about years.
21. It is sincerely believed that UNJSPF does not intend to punish the retirees who happen to enjoy good health and long life beyond the anticipated fiduciary age of life expectancy.
22. As said earlier, the UNJSPF regulations, rules and procedures, specifically relating to the pleas contained in this appeal, in our humble opinion, are so flawed and dysfunctional as to allow all kinds interpretations, much of those UNJSPF interpretations remain subjective and contrary to natural justice.
23. In fact, the co-joined articles/rules 1(f) and 28(g) on commuted pension payments read in conjunction with article 43 – recovery of indebtedness to the fund – should imply that the lump-sum payments (as commuted pension) is to be regarded as a calculated risk-based loan or advance payment to the retiree, recoverable with interest (more than average market rate) thru monthly deductions by way of reduced pension. Corollary to this situation, based on equity and fairness, full pension should be restored once lump sum plus generous interest becomes fully recovered/reimbursed to the UNJSPB.
24. Denial of full-pension for life-time can never be justified in the name of equity and fairness, except to say that UNJSPF does not expect its pensioners to live beyond the age of life expectancy of its fiduciary experts. Longer the 1/3 lump sum recipients live better are the returns on UNJSPF’s investments by way of reduced pension to those retirees for life, to which the UNJSPF is not legally or morally entitled beyond the true actuarial period used for commutation of the initial lump sum.
25. It is common practice with UNJSPF, its fiduciary findings and recommendations, including final decisions that affect the life of pensioners are never made available in the public domain – this is again contrary to the requirement of a responsible organisation based on accountability and transparency. In the absence of such openness and transparency, those who took the 1/3 lump sum are forced to sign an undertaking (not a contractual obligation) with facts held back. The suggestion to consult with Staff Pension Committee will only be leading the blind by the blind. We feel that UNJSPF is the sole body that should clear all doubts and clarify any concerns.
26. In fact, our specific pleas can be seen as “remediable injustices” which can be eliminated easily provided we ensure genuine democracy in the UNJSPF bureaucracy.
27. Around the world, especially in the largest democracy of the world representing one-sixth of humanity (India), lump-sum commutation and restoration of full pension after 15 years has long been in vogue and fully endorsed by the highest court of justice in that country (Supreme Court of the Republic of India – Judgement given on 9 December 1986 on common cause writ petition # 3958-61 of 1983). As full details of this judgement are freely available in the public domain websites of the Indian Supreme Court and Indian Government, it is not our intention to tire the UN Appeal Judges and save time and information/paper overload. It is our understanding that India is not alone in this regard.
28. Assuming that the acceptance of the restoration of full pension for lump sum recipients after an agreed period, in the context of increasing longevity of pensioners, may cause fiduciary imbalance as per present methods, this situation can be expertly reviewed and remedied; and necessary new formulas can be established thereby all pensioners – lump-sum recipients, full pensioners, et al – can be provided benefits that become hallmark of equity and fairness.
29. Arguments that such lump-sum recipients had the undue advantage of investing large funds for huge profits, etc. (in the western style) are simply not proven by facts; based on our own understanding and broad based survey of pensioners, it was revealed that the pensioners were in fact lured into lump-sum option inter alia for the following compelling and compassionate reasons:
· To offset sudden loss of regular income upon retirement and the anxiety for repartition and resettlement of a life befitting a UN staff with core values intact even in retirement;
· To defray cost of expensive medical treatments, long postponed; to build a living place; to marry off grown up children;
· Anxiety of growing old to meet all family commitments before the final hour arrives.
· Fear of any instability in the UN pension system, despite the fact that UNJSPF is known for sound financial management within UN family.
· Some of the retirees being aware of the normal feature of many enlightened civil service pension systems were of the view that the commutation of a part of pension as lump sum + reduced monthly pension, will eventually be followed by restoration of full pension once the commuted lump sum + interest got fully recovered.
REQUEST FOR ORAL HEARING(S):
30. As can be seen from the appeal, we have raised a number of constitutional questions as to why the UN agencies’ independent regulations, rules and procedures should NOT be inconsistent with the fundamentals of the UN organisation. In our humble opinion, it will be necessary to understand the depth and import of such “essentials” and such a situation would be better felt/explained thru oral hearing(s). It is also our understanding that the appellants do have the right to bring in outside legal advice/counsel to better present our case.
31. In celebrating the Human Rights Day (20 December 2008), the UN Secretary General declared that “we can only honour the towering vision of that inspiring document (UDHR) when its principles are fully applied everywhere for everyone”.
32. The sacred need and responsibility of UN and its associated agencies/organizations to abide by and operate in accordance with the fundamental principles enshrined in the UN Charter and the Universal Declaration of Human Rights cannot be over-stated. Their legislative, executive, judiciary and administrative bodies should not only be influenced by those fundamental principles, but their day-to-day functioning should remain as role models for good governance for the rest of the world governments.
33. Reposing our faith in the letter and spirit of those great practical principles, we look to the UN Appeals Tribunal to uphold those values and declare its decision reflecting the removal/elimination of the “remediable injustice” done to the 1/3 lump-sum recipients of UN pensioners by restoring full pension after the lump sum PLUS generous interest have been fully recovered.
VI. SUPPORTING DOCUMENTS AS ANNEXES:
(i) Copy of Common appeal/request submitted (individually) during May/June 2009 to the Standing Committee to the UNJSPB for the restoration of full pension for the one-third lump sum recipients after a pre-determined period of commutation.
(ii) Letter from CEO/UNJSPF of 20 July 2009 stating there should be no change in the reduced pension for life time in the case of 1/3 lump sum recipients.
(iii) Information sheet on the appellants of this appeal in response to the requirements stated in the UNAT rules.
(iv) Respecting technology and environmental impact, and especially our faith on the wisdom of UNAT jurisprudence, we do not attach too many documents, but seek indulgence of careful attention to the Indian Government’s pensioners' portal (http://pensionersportal.gov.in) and Indian Supreme Court judgement of 9 December 1986 on the Common Cause Appeal writ petition # 3958-61 of 1983.
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ABBREVIATIONS USED IN THIS APPEAL
UN United Nations Organisation
UNJSPF United Nations Joint Staff Pension Fund
UNJSPB United Nations Joint Staff Pension Board
UDHR Universal Declaration of Human Rights
UNAT United Nations Appeals Tribunal
UNC United Nations Charter
SIGNATURES OF APPELLANTS AND RETIREE #, year of retirement, incl ADDRESSES:
(original hard copy documents signed by all three signatories)
-------------------------------------- --------------------------------------- -----------------------------------
S.P. Sundaram V.Muthuswami G.S. Srinivasan
R/28009 (1983) R/63374 (1997) R/66715 (1998)
22 (First Floor) First Cross St. 6/16 Rajagopalan St. 1-D Vantage Tower
Sundar Nagar Valmikinagar, Tiruvanmiyur 34, Fifth Avenue, Besant Nagar
Bangalore 560 054 Chennai 600041, India Chennai 600090, India
Tel: 91-80-2345 6938 Tel: 91-44-2442 0706/2441 6526 Tel: 91-44-4215 4117/2491 0117
firstname.lastname@example.org email@example.com firstname.lastname@example.org
Signed at Bangalore/Chennai, India,
on: 27 August 2009
Certification of Indian Govt. Notary Official:
(Done in hard copy) END