"In a democratic framework nothing is flawless, but the real strength of a true democracy is its ability to correct the flaws in time and eliminate repetition." Indian Cabinet Minister (probably in his wisdom mode).
Reading through the judgments, orders, etc. especially of late 2009 and of the UNDTs in all the three locations; New York, Geneva and Nairobi; may bring about a sense of relief and a glimmer of hope that up to now the judges seem being allowed to function independently and without interference, fear or outside influence.
Some of their orders have exposed the systemic problems and gaps in the present system-wide regulations, rules, procedures and methods of operation; for example:
- UN Admin Tribunal Judgement # 1495 of 23 Dec 2009 – Case of Kofi Annan vs UNJSPF exposed the lack of understanding or mis-judgment on the part of the latter, the distinction between the status of the UN Secretary General (elected by the UN General Assembly for a specific term of office as World Number One Citizen), and on the other hand the status of other international civil servants appointed by or under the authority of the UN Secretary General with different series of UN Staff Regulations and Rules.
This judgment also exposed the inconsistency in the UNJSPF's regulation Articles 43 & 44 in regard to interest and other charges/costs on the money owed to the UNJSPF, and owed by UNJSPF. It ordered that despite its Article 44, the former UN Secretary General should be paid pension arrears plus interest of 8% calculated effective 1 Jan 2007.
- Case No. UNDT/NBI/2009/67 & Order No. UNDT/NBI/2010/25 of Feb 2010. While pointing out the absence of specific rules regarding protection of witness appearing before the Tribunal against harassment, intimidation, dismissal from service and/or career development, or physical harm, it made a judicious inference and interpretation mutatis mutandis of the existing provisions against whistle-blowers protection and the obligations of staff as per UN Staff regulations. Thus, it issued a timely orders for the protection of the witness, thus protecting the quality of justice in respect of those who may be impacted by their willingness to give evidence to the UNDT/UNAT.
Bravo: the Panel of Judges! Declaring that the international norms of justice and fair play should be taken into cognizance wherever new circumstances and events cannot find reference or solutions within the existing UN regulations, rules and procedures, is indeed a breakthrough in enhancing the quality of life within the UN system.
- Order No. 19 (NY/2010) of UNDT/New York of 3 Feb 2010. This is the case of a senior staff and whistle-blower, Mr. Wasserstrom, who I understand, is no longer in service. Thanks to his commitment under the staff regulations he was understood to have pointed out some potential and/or real wrong doings and in the process he became the victim of retaliation. Here the judge gave an interim judgment that the applicant and his counsel be given full report of the investigation before any decision be made. The case also exposed a number of issues under the cloud of bias or wrong strategies.
If I were Mr. Wasserstrom, wanting to keep my self-esteem intact, I would probably go back to the UNDT or UNAT only for the purpose of vindication of my bona-fides, not for anything else. If the accusations etc. hoisted by the system proved to be false or ill-founded, then one should probably think of seeking remedy and justice elsewhere, by asking the system to disrobe the responsible officials of their so-called immunities so they can be prosecuted under national criminal laws. This is at least to establish a deterrent against such mala-fide behaviours.
- UNAT Case # 2009-001 – Common Cause Appeal by UN retirees vs UNJSPF. Here in the name of fair play and justice the appellants are prepared to appear for oral hearings, answering questions and providing clarifications before the Hon. Judges. Not only such rights are seen fundamental for the protection and preservation of human dignity and justice, but to eliminate any possible mis-carriage of justice in respect of hundreds of such retirees faced with the problem of life-time denial of full pension. However, information as of now (3 March 2010) – no oral hearing is foreseen!
For an organisation like the United Nations to become a model of good governance, it is imperative that justice for its staff and constituents should remain not only fair, just, equitable and transparent, but should be available on a timely basis and seen to be delivered in reality.
To rephrase what John Kenneth Galbraith (1908-2006) said about poverty:
Like poverty, lack or absence of justice, is cruel. A continuing struggle to escape injustice being frequently frustrated by a flawed system is even crueler. It is more civilized, more intelligent, as well as more plausible that people, out of their true education, experience of centuries and maturity, should reconcile themselves to what has for so long been the inevitable, inhumanly delayed or denied for long.
Let me conclude this short article with a record of what was reportedly said in the Trial of Socrates:
"Basic to a free citizen is the right to speak back to the State, to criticize its actions in the assembly, the courts, the theatre, or conversation… When he lost the right to persuade, he (Socrates) won the right to resist and tell the truth."
Unfortunately, for telling the truth he was made to pay the price by his life. Should it happen again or if this happens again in the 21st century, it only means that we still have a long journey in front of us to find "justice".
V. Muthuswami, Chennai.
Joint appellant of the Common Cause Appeal # UNAT 2009-001.
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