New sunshine exposing the muck around... Can this be cleared sooner than later?
Ref: UNDT Judgment UNDT/2010/001/R, 6 January 2010, and UNDT Judgment UNDT/2010/030, 22 February 2010. Abboud vs Secretary-General of the United Nations.
To say in one sentence: the twenty-five pages of judgment UNDT/2010/001/R, 6 January 2010, while upholding applicant's appeal and awarding a compensation to him, exposed the accumulated ego-muck galore, and the usual emotional and manipulative garbage in the UN top down.
It was all about the applicant's (Abboud's) interview in July 2008 for a senior level job at P5 (which I guess he never got despite having obtained top scores in the selection process) and the inter-play of subtle, clandestine and back-stage operations, including inconsistencies in the evidence to the Tribunal, with one Special Assistant to the USG (Mr. Shaaban) seen as the clever puppeteer.
Good thing about Judge Adams, and rightly so, he didn't stop with the compensation to the applicant, but wanted the matter to be further investigated for any misconduct of the "famous" SA to Mr. Shaaban for any further action. Judge Adams also decided to allow the Staff Union to make submission(s) in the matter, I guess, consistent with the democratic participatory management principles.
In his judgment UNDT/2010/030 Judge Adams ordered that the UN SG appoint a senior official other than Mr. Shaaban (USG), to consider afresh the complaint of the applicant, in regard to the conduct of the well-known SA to Mr. Shaaban and to ascertain any basis, if any, for further action. The Judge also referred to the Secretary General to consider what action to be taken in regard to Mr. Shaaban's conduct – both in dealing with the complaint in the first place and also in regard to his alleged conduct in giving evidence to the Tribunal.
In my earlier commentaries on the newly reformed Internal Justice System I pointed out the lack of independent investigative capacity and enforcement authority of the UNDT and UNAT and also some instances of lack of clarity in regard to the unique position of the Internal Judges. The concept of law and justice is as dynamic as the concept of society itself. If we want the dynamics of law and justice to function within the UN system efficiently, seamlessly, harmoniously and in complete congruence with the UN Charter and the Universal Declaration of Human Rights, a number of issues are to be understood and resolved without delay.
- Since the judges to UNDT and UNAT, and also the Secretary General are directly appointed by the General Assembly, it must be accepted that they are all equals, though they may be compensated differently. It is totally absurd and counter-productive to argue on the basis of compensation and validity of power between the office of the UNSG and the Judges of UNDT and UNAT. I admire Judge Adams for his wisdom and courage in saying so.
- There are some parallels in different democratic constitutions: the Indian constitution accepts that the Cabinet rank ministers, appointed at the "pleasure" of the President, are all equals, but the Prime Minister is considered as "first" among the equals.
- The Indian President is elected by the members of Parliament and State Assembly members – not directly by the people. The President is seen as the constitutional head and also the first citizen of the country; and yet, by convention, the President can only decide by accepting the advice of the cabinet. In case of any disagreement, the President has to return the advisory/decision back to the cabinet for reconsideration. Even the commutation of capital punishment by the President is subject to the decision/advice from the cabinet.
- It is therefore necessary for the UN Secretary General office, UNDT and UNAT to put their heads together and agree on a compendium of healthy conventions to follow. Sooner this is done better for real justice to blossom.
- By nature of job functions, the SG has to wear different hats and perform different roles as appropriate to the circumstances as available. He is the # 1 World Citizen for the civic society at large; he is the prime agent of the UN GA and its subsidiary organs; he is probably the normative supervisor of the USGs & ASGs (though most, if not all, are political appointments); and he is both the leader and CEO for the management of the UN in all its operational functions; interlocutor on issues as decided by the UN GA; etc.
- In a manner of a new paradigm of universal law and justice, the performance or lack of it of the SG as well as the Judges are also subject to the oversight and evaluation by the public at large, thanks to open society media and Internet enhancing public awareness and interest in the UN affairs all the time!
- In order for the Internal Justice System to function smoothly and efficiently, the UNDT and UNAT judges should be persuaded to assemble collegians of lawyers/judges/jurists of international repute in law, justice and legal practices to serve as advisory panel(s) to be consulted when appropriate. This approach should specifically be useful in reviewing all the regulations and rules of the UN and its subsidiaries to remove all inconsistencies and contradictions, seeing through the foundational prism of the UN Charter and the Universal Declaration of Human Rights.
- Avoid/eliminate the fault lines of the often quoted idiom: "International law is the vanishing point of jurisprudence". Such a situation should not be allowed to derail the process of the reform at any time and take justice in the wrong direction.
- Instead, listen to our Noble Laureate, Amartya Sen: Is justice an ideal, forever beyond our grasp, or something that actually guide our practical decisions and enhance the quality of our lives?
- The latter will become true and "a reality" once UNDT/UNAT judges and Secretary General are committed to remove all the subjective cobwebs, and needless vested-hurdles in the system, and aim at beginning to achieve what Sen calls the elimination of the "remediable injustices" that are abound and presently clogging the system.
Let me conclude the piece with an analogy. For me, the UN is like a sacred Banyan tree under which Buddha got his enlightenment. "A tree is as strong as its roots. If the roots are hollow or weak or without substance, the tree cannot withstand the winds (of change), let alone the storms (of emergencies). The most important factor is the ground on which the tree stands: from which its roots, trunk, branches and leaves get the food. A system of law and justice, is as good as the set of values it is supported by; and, of course, the philosophical foundation it has". This is the foundation of the UN Charter and the Universal Declaration of Human Rights.
Jai Ho! God Bless
V. Muthuswami. Chennai, India
Joint Appellant to the Common Cause Appeal # UNAT 2009-001
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