Monday, January 11, 2010

Cause for Celebration - Open Letter to UN Retirees



Dear Colleagues:

At a time when the world is short of causes for celebration, here comes a candidate.

It appears that UN Disputes Tribunal (born 1 July 2009) has already cleared no less than 96 cases by the time the year 2009 came to a close! A record of sort!!

Having used this mode of communication to talk to the retiree colleagues and report on the state of affairs regarding our common cause appeal (Case # UNAT 2009-001), let us now bring you up to date on the so called further developments:

1. While our Common Cause Appeal # UNAT 2009-001 has long been submitted (27 Aug/30 Sept 2009) and Respondent’s (UNJSPF) reply received by 28 Oct 2009, we have not heard any news as to when our common cause appeal will be reviewed/hearing scheduled.

2. The official website of the UNAT & UNDT (UN Office of Administration of Justice – is seen being built with additional information made available on the internet.

3. Recent addition in the website is the listing (or shopping list) of cases considered by UNDT between July and December 2009. There are about 96 decisions/judgements (UNDT/2009/01 to 96); some of the cases were transferred from the earlier avatar JAB. Also, never mind the list misses out at least two cases (UNDT/2009-61 & 62).

4. Have reviewed a good randomised sample of 50 cases/decisions/judgements with the following findings:

(a) Most of the cases related to appointments, non-renewal of appointments and extension.

(b) 28 cases were rejected; five cases were recommended for mediation/management evaluation; four cases where further submissions were allowed for consideration or full hearing of the case was recommended; three cases where compensation was recommended; a number of cases were rejected because of procedural lapses.

(c) There was a case of sexual harassment and cultural insensitivity involving chief of office, incl a local police complaint by the national staff. Probably due to the uncomfortable nature of the case, mediation and resolution by mutual agreement was recommended. However, no compensation for local costs, nor any news what has finally happened. (Maybe the official is now enjoying a great retirement and/or maybe re-employed as consultant/advisor – the usual revolving door policy or the worldly wisdom: politics is the science and art of the possible!)

(d) Almost in all complaints about non-renewal, non-promotion, and HR related, it appears that the UNDT had had little influence on the management’s judgement and/or decision. The best the UNDT could do even in those cases of apparent abuse of authority, only some form of compensation could be offered.

(e) Right now there is no information on the results of several mediation efforts recommended.

(f) There seems a tendency to accept the management argument/contentions at face value; in other words, UNDT may not be able to do any special independent investigation into such matters, again without calling for help from the management itself!? This may also mean: UNDT’s capacity may be limited by design.

(g) In one case, the competence and independence of the JAB/UNDT judges were seen questioned, but no resolution!

(h) In one or two cases, the counsels for the staff were allowed to withdraw.

(i) There was at least one instance where UNDT had to make some modifications/corrections to his/her earlier oral judgement when the same was rendered into written words.

5. Based on these findings, maybe some observations are possible:

5.1 Since the UN staffs have neither recourse to the independent national judicial process nor any “real” legal defence support, they have to contend with the best of the worst situation at hand. Maybe this caused a majority of cases being rejected outright; or can we say that the UNDT decisions tend to favour management practices without any benefit of doubt to other side.

5.2 Seen from another angle, complaining staff may have been ill-informed, ill-equipped and ill-prepared in the pursuit of justice. This may be a reflection on the quality of staff recruited/trained and being brought into system in the first place or there are remediable gaps in the HRM practices and other internal systems.

6. If the new avatar UNDT & UNAT should have any impact in improving the internal justice system and to enhance quality assurance and standards (e.g. transparency, independence, open objectivity, fairness, equity and accountability), we need to see some real breakthroughs in the following areas:

(a) Close monitoring & evaluation of the functioning of the UNDT and UNAT processes and reports prepared every six months and place such findings on public domain;

(b) We need to keep remembering the socially inspired justice template: justice should be seen and should be seen to be done; many a culprit might escape the net, but not single innocent should be punished;

(c) This monitoring and evaluation should be done, inter alia, in the context of norms described in the UN Charter and the Universal Declaration of Human Rights;

(d) A matrix of lessons learnt thru the cases processed by UNDT & UNAT and follow up actions recommended, together with an “action taken report” should be available in the public domain – at least twice a year.

(e) An efficient and effective mechanism to review regularly the performance of the UNDT/UNAT judges incl. their judicial erudition, mental propensities, biases, prejudices, etc. These are the most important aspects since the judges are appointed by the UN GA and no one else has any supervisory control nor any one person/group/committee seems entitled to judge the quality of their performance.

(f) Last but not the least, an effective and sufficient budgetary allocation should be in place to ensure that the new reformed internal justice system is not under-nourished, under-funded and handicapped, and do not suffer from the same kind of resource crunch that afflicted its earlier incarnations.

7. The noble laureate, Amartya Sen, in his latest book “The Idea of Justice” argues that “justice” cannot remain only as an ideal and beyond our grasp, but should actually guide our practical decisions and enhance our lives and faith in/on the system. If this is so, then UNAT and UNDT should be seen qualified/deserving to become beacon of our hopes and should facilitate a holistic approach to the decision-making (both the management and staff have responsibilities too in this area) and help remove at least most of the remediable injustices in the system and also in the convoluted human minds managing/manipulating/controlling the system.

Jai Ho!

S.P. Sundaram/V.Muthuswami/G.S. Srinivasan

Joint appellants of the Common Cause Appeal (case # UNAT 2009-001)