Inspired by Adam Smith, 1723-1790, Theory of Moral Sentiments and Wealth of Nations.
"If the judiciary goes down in the estimation of people, it will be the end of democracy." Indian Advocate General Habibullah Badsha.
While doing the analysis of UNDT decisions, judgments and orders, July-December 2009, it struck me with a question whether the reform efforts will finally help determine the growth of values and quality of life within the confines of the UN. If this happens positively then there should be reason to anticipate an enhanced effectiveness of the UN and its place in the world affairs.
As a reckless optimist and a proud former UN civil servant, I keep hoping that I will one day be able to witness an organization where all the 194+ countries enjoy a level playing field in debating and agreeing to plan(s) of action on human development issues that can make Adam Smith happy.
Having read a number of cases brought before the tribunals in the recent past, I can think of only a kind of suffocating bureaucracy that seems to enthral itself in the deprivation of simple rights to the victims. The reason for all sorts of discrimination and harassment is simple: none of the officials responsible for such acts come under the scanner of any national law enforcement authorities, nor their acts will likely become accountable as long as the old-boys-club environment continues with the so called immunities giving protective cover.
And the UN justice system (UNDT & UNAT) appears innocuous and might even suffer from learning disabilities. They have no capacity to do their independent investigation - e.g. FBI of USA or M15 or NSY of UK or CBI of India - even of serious complaints of in-house human rights violations. Unless the so called reform of Internal Justice is genuine and include some of key elements of justice it will just be old rotten stuff in a new high-price-tag bottles:
Inter alia, the following elements are critical:
- UNDT/UNAT should be allowed to operate totally independently and without any interference and they are accountable only to the UN General Assembly.
- UNDT/UNAT must have collegians of internationally reputed lawyers and s judges as advisory bodies, in case of any external advisory required in understanding the cultural and other context of the situation under review.
- UNDT/UNAT must have the power to independently decide and serve summons on officials to provide evidence, information, etc., independently of the UN appointed counsel and any UN departments.
- In serious cases UNDT/UNAT judges should feel empowered to disrobe the accused officials of any so called immunity and recommend that they be prosecuted under national laws.
- There should be a system of 360 degree evaluation plus peer review of supervisors and chiefs, to understand the pattern of behaviors, emotional hang-ups and other neurotic disorders, either known or suspected. Any supervisor and chief who received more than TWO complaints in a reporting period should be suspended or relieved of UN service, as appropriate.
- None of the UNAT/UNDT judges should be participants in the UNJSPF; instead they should be given option to participate in any other outside pension systems and supported/subsidized by organization contribution if necessary.
- The total budget of the Office of Administration of Justice (OAJ) should be independent from the usual UN budget office, except for allocation of annual resources packet, based on pre-determined criteria (e.g. staff count, past data on complaints, judicial expenditures, etc.) OAJ should only be audited by external auditors and should be answerable to them and probably an Oversight Committee of the UNAT/UNDT judges.
- UN General Assembly should become aware that a genuine and reliable justice frame work comes with a price-tag that may prove expensive, but avoidable at our own risk of total catastrophe at the work place. There is a saying in Thailand relating to the "governance" -- "good things may not be cheap, but cheap things will never be so good". Here, the Thais refer "good things" of life based on values – both tangible and intangible.
- Keep closer scrutiny of organization's counsel and be empowered to call in witness, evidence, documents etc. other than what have been pre-prepared and submitted.
- UNDT/UNAT to abide by the supremacy, preponderance and criticality of the UN Charter and the Universal Declaration of Human Rights and prepared to employ these important norms, parameters, or prisms (whatever one may wish to call), in the review and application of any given internal regulations, rules, procedures and daily working methods.
- Unless the UNAT/UNDT become truly independent judicial bodies within the system, there is no way things can improve. One may see some kind of cosmetic changes now and then, but these cannot be mistaken for the arrival of "the idea of justice".
Adam Smith, in the Theory of Moral Sentiments (TMS) examines the process by which individuals and groups adopt moral standards through which they judge actions by others and themselves. He explains the logical flow of moral rectitude toward benevolent economic and political behaviors, blossoming into a kind of JUSTICE (jurisprudence) consistent with the "law of Dharma". He was clear that growth of Wealth of Nations (WN) depends on the level of compatibility and congruence between the Moral Standards, and Economic Growth and political (governance) maturity.
In the effective manifestation of jurisprudence, he spoke about justice as a function of and as "impartial spectator", to minimize possibility of unfair bias based on incomplete information or prejudice or a mental construct not to displease the system or to please the real and imaginary benefactors.
Ayn Rand (1905 -1982), the Russian revolutionary philosopher-humanist and a woman of high intellectual caliber, saw scope to strengthen the Adam Smith's analysis, in that the moral principles as guides to life-promoting actions should rise to the level of embedded virtues - "a philosophy for living on earth". Such an individual should be able to discern the principles of action necessary to establish "order and harmony" in the relationship between human being and nature (environment in all its facets).
For Ayn Rand the virtues are manifestations of rational long-range standards or principles that life as a human being requires. She said:
"My philosophy, in essence, is the concept of man as a heroic being, with the moral purpose of his life, with productive achievement as his noblest activity."
Is it prudent to hope that our Internal Justice and its judges might carry genes of Adam Smith and Ayn Rand to make the reform of the UN Internal Justice System a robust and effective edifice to make the international civil service as a blessed "Dharma"?
V. Muthuswami, Chennai, India.
Joint Appellant of the Common Cause Appeal # UNAT 2009-001.
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