“When a judgment and justice be the same?” – quote from ancient Eastern wisdom.
More than a year after the appeal was submitted, firstly (May 2009) with the Standing Committee of the UN Pension Fund and after nine months it was presented (August 2009) to the UN Appeals Tribunal, and after an uneventful 80 minute oral hearing session on 22 June 2010, the Tribunal President pronounced its judgement on Thursday, 1 July 2010: “the case was dismissed”.
The reasons for this decision will be a month in coming. Why? Especially when the case has been with the Tribunal over nine months? The delay has been explained as the time the bureaucracy requires to finalise the documents, signatures, including translation etc.
However, please see what Article 20 of UNAT Rules of Procedures on publication of judgments:
- The Registrar shall arrange for publication of the judgments of the Appeals Tribunal on the website of the Appeals Tribunal after they are delivered.
- The published judgments will normally include the names of the parties. Maybe the words “shall” and “after” include elements of elasticity and flexibility in terms of days and weeks!
Reflecting on the scene of the oral hearing on 22 June 2010 at Conf. Room # 10 in the UN HQ North Lawn Building, it looks as if it happened more as a formality to accede to the appellants request, rather than an opportunity to ask questions and to get answers to the appellants’ concerns; and also to their questions raised earlier and during the oral hearing. For example:
- The Respondent was not asked to confirm or deny that the lump sum based on a 1/3 pension is a form of indebtedness or purchase of future benefits for a defined period of time ahead. If this lump sum is an indebtedness to the Pension Fund, why not this is governed by the Pension Fund Regulation Art. 43 and should be applied in letter and spirit. In case, the Respondent denies (with proof), then he should be required to clarify why it is not and why Art. 43 would not apply. That responsibility squarely rests on the Respondent.
- The Respondent should also have been asked to clarify whether it was fair on the Fund’s part to require the retirees to sign an incomplete and misleading document, without proper briefing or without giving them a clear and comprehensive supporting document, spelling out the consequences. Does the UN Pension Fund enjoy a kind of immunity from disclosure requirements apply to the pension, insurance and finance sectors in other democratically governed entities?
Whatever may be the reasons, the situation raises some reasonable and valid questions. Is it that the judgement was already agreed, but it needs time to put out a set of reasons for doing so?
Here are some remarks received from some of the fellow UN retirees:
“…Most, most disappointing. Not entirely unexpected, for when the judges rank below the ASG/USG, and the CEO of UNJSPF is not bound to accept their verdict, what can we expect? But what tears my heart out (as will many others) is the enormous efforts, time and expenses (the appellants) have put in for the last many, many months turning to nought without any ado! Small wonder that the mighty UN secretariat has been termed as autocratic and unyielding to none!! I personally have lost faith….”
“….The month’s time taken by UNAT to give the reasons for their rejection is needed by them to concoct with their partners… (UNJSPF) some cock-and-bull reasons for their unwarranted decision. Their hearing of our well-built case seems to have been absolutely cursory and lackadaisical. I am sorry I have lost all hope of getting fair play and justice from our ex-employers. What purpose does re-appealing to the same body serve?…”
Read here what the NYT columnist Neil MacFarquar reported on 16 June 2010 as a part of his diplomatic memo:
“Review Panel Judges See a Culture of U.N. Secrecy.
Critics suggest that the secretary general is violating at least the spirit and possibly the letter of the rules approved by the General Assembly.
Diplomats, lawyers and others tracking the cases describe the United Nations’ stance on the tribunal as contradictory, if not hypocritical, given the organization’s role in promoting the rule of law globally. ‘The organization has to decide from the S.G. on down whether this is an organization that respects the rule of law or not’ said George Irving, a former president of the staff union and a lawyer who has worked on administrative cases at the United Nations for more than 30 years. ‘What you are witnessing essentially is a power struggle. It is all about control, who is going to control the system.’
Noting that an employee was fired despite a pending tribunal hearing, a May order from the Nairobi tribunal said that the decision ‘is significant for the contempt it shows of these proceedings.’ It said that the United Nations’ response ‘does not bode well’ for a system supposedly based on international law and due process.
‘You have to look at the culture here,’ Judge Michael F. Adams, an Australian judge, said at the end of his stint on the dispute panel in New York. ‘Someone in the position of under secretary general is never confronted with the requirement that particular questions be answered.’
Judge Adams has been notably scathing in his written decisions about the lack of due process in the tribunals. ‘The United Nations legal system may be an island, but it does not inhabit its own planet,’ he wrote.”
The decisions and judgments by the UN Appeals Tribunal are “final” and cannot be appealed in any national courts or even in the UN International Court of Justice. Request for Revision is possible as per Article 11 of its Statute, and Article 24 Rules of Procedures, with a caveat:
Article 11 – Statute of the United Nations Dispute Tribunal:
1. Subject to article 2 of the present statute, either party may apply to the Appeals Tribunal for a revision of a judgement on the basis of the discovery of a decisive fact which was, at the time the judgment was rendered, unknown to the Appeals Tribunal and to the party applying for revision, always provided that such ignorance was not due to negligence. The application must be made within 30 calendar days of the discovery of the fact and within one year of the date of the judgment.
Article 24 – Rules of procedure of the United Nations Appeals Tribunal
Revision of Judgements
Either party may apply to the Appeals Tribunal, on a prescribed form, for a revision of a judgment on the basis of the discovery of a decisive fact that was, at the time the judgment was rendered, unknown to the Appeals Tribunal and to the party applying for revision, always provided that such ignorance was not due to negligence. The application for revision will be sent to the other party, who has 30 days to submit comments to the Registrar on a prescribed form. The application for revision must be made within 30 calendar days of the discovery of the fact and within one year of the date of the judgement.
A consoling explanation on the “discovery of a decisive (new) fact” unknown earlier is that the date of the discovery will be based on “honour” and UNAT will accept it to be so!
The real discovery is that the national and local staff who retired after long years of loyal service to the UN and those in their late 70’s and beyond, and especially, those who served in the lower hierarchical levels (e.g. drivers, clerks, messengers, etc.), will continue to be most affected by the UNAT judgment. These types of retirees in most developing countries often have no access to other social safety net(s) within their own national borders. Refusal to restore their full pension could add to their burdens of ageing in the form rising cost to meet essential food, shelter and health needs.
Let me conclude by asking anyone familiar with UN Pension rules and procedures if they have any decisive facts or answers to the following observation from the Nobel Laureate Amartya Sen in this recent book “The Idea of Justice”.
“If a theory of justice is to guide reasoned choice of policies, strategies, or institutions, fully just social arrangements is neither necessary nor sufficient.” Amartya Sen, Nobel Laureate Economist-Philosopher.
V. Muthuswami, Chennai, India
Joint Appellant of the Common Cause Appeal # UNAT 2009-001.
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