Justice Dharma

Making UN Justice Edifice Work in Dharma

Making UN Justice Edifice Work in DharmaNo problem can be solved by the same level of consciousness that created it.” Albert Einstein.

Social scientists used to say: “India is not a poor country, but it is a poorly managed country”. As I think of the UN, having worked  there for over three decades, I can say that the UN is a great organization insofar as its mission goals and guiding principles are concerned, but ineffectively structured and strategized, and poorly managed because of accumulation of all types of impurities and blockages in the system.

First, the UN organization is seen by member States as a kind of separate “democratic independent entity” similar in characteristics and working methods to an independent State, except perhaps the notable absence that can be termed as the “sense of sovereignty”. As a democratic entity, it has a separate legislative wing ( the General Assembly and its deliberative branches) to review world situation, formulate international treaties and conventions; independently managed bureaucracy; and a (recently born) reformed internal justice system.

Second, the essential fourth pillar of  a true democracy – free press – is something that is freely available at no cost to the UN, but  it is required to be properly used, sustained with appropriate support and openness in relationship and dealings.

Now, let us see what the organization itself has to say about its essential characteristics:

1.  Quote from UN SC Document # S/2004/616 of 23 August 2004

The rule of law is a concept at the very heart of the Organization’s mission. It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

For the United Nations, justice is an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large. It is a concept rooted in all national cultures and traditions and, while its administration usually implies formal judicial mechanisms, traditional dispute resolution mechanisms are equally relevant. The international community has worked to articulate collectively the substantive and procedural requirements for the administration of justice for more than half a century.

2.  Quote from UN GA Document # A/63/226 of 6 August 2008

The Organization has little credibility if it fails to apply the rule of law to itself. The United Nations is a creation of international law, established by treaty, and its activities are governed by the rules set out in its Charter. Appropriate rules of international law apply mutatis mutandis to the Organization as they do to States.

In the light of its responsibilities, the United Nations has a special duty to offer its staff timely, effective and fair justice through its internal justice system. I am pleased to note progress on this issue and look forward to the commencement of the new system. Similarly, due process concerns are critical in relation to Security Council sanctions regimes. A focal point to receive requests for de-listing has been established, reflecting the widely shared perception that action was needed. I consider further advances to be necessary, not only to protect individual rights, but also to maintain the effectiveness of sanctions. I remain committed to the implementation of the 10 principles of the United Nations Global Compact in the internal management of the Organization.

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3.  Quote from UN GA Document # A/64/298 of 17 August 2009

The United Nations should be the model of the rule of law if the Organization is to be effective in promoting it. I am pleased that the new system of administration of justice started functioning on 1 July 2009. For the first time in the Organization’s history, 15 professional judges were appointed to adjudicate appeals against administrative decisions, including decisions to impose disciplinary measures.

Influenced by Gandhian philosophy of action to modern life style, I can probably see the problems in the following perspectives:

  1. People (UN staff) are inherently good. Whatever place and whatever branch of the organizational structure they may occupy this innate attitude, tendency and behavior are likely to manifest, provided the working environment is enabling and conducive for such a positive growth. In other words, the UN environment should remain as a model of “democracy at work” where every single staff member is empowered to function and deliver what is expected of him/her. However, in reality, we face a huge “democratic deficit” in the way the institution functions and gets manipulated and managed.    Most of what is required in this area relates to the best management practices based on the UN Global Compact Principles. Another critical area is the monitoring and evaluation of actual performance NOT on hierarchical basis but in sequential, contextual, cyclical and collaborative basis. The whole principle is NOT condemning staff, but enabling them to bring the best out of them and apply it in whatever work they are given and goals undertaken.
  2. The legislative side of the UN carry the some unique characteristics of the member States (often preaching quite systematically, and also analytical in most cases; tendency to be rhetoric and indifferent when applying principles in its own geographical boundaries; not infrequently, self-fulfilling in the arena of politics of pulls and pressures) reflecting a particular state of mind at any given time and situation. Thanks to the globalized world and borderless/seamless spread of communication and ideas in/of action, people and societies rapidly becoming aware of such developments and their rights. Therefore people become assertive to call for needed reforms and improvements in the delivery of services, all the time knowing and comparing what is being done in other parts of societies and other areas of the world. This pressure of public opinion and supportive cooperative action to highlight the needs for reform are bound to have good effect as long as the State does not turn into an authoritarian Tiananmen Square or a totalitarian African model.
  3. Modern capitalism: the problem now of this model is its ability to keep costs and pricing to ensure wider reach of consumers, though it has very little concern and respect to the “value” of that which matters most to the final users/consumers and the effects on our environment. What is clear here is that the bureaucracy or the executive branch and the legislative branch of the governance should be fully aware of what is happening in the business of providing goods and services.  Are they consistent with the Global Compact principles and how these can be applied, monitored, published in public domain and made accountable?
  4. Internal Justice system: even after the so called reform efforts spread over a few years, what we now see from a distance is a kind of India’s “Panchayat Raj System”, a beautifully envisioned local governance framework with democratic management decorations of grass root development, but plagued by a lack of resources, power, absence of people’s whole-hearted involvement, etc. Last but not the least, the  UN Office of Administration of Justice (OAJ) still has to work under the over-lordship of those who command resources (financial, material and human).    It looks as though it is not an independent entity like UNICEF or UNDP or UNJSPF, but can be pulled up by still unbroken umbilical cord attached the mother called “UN” and her whims and fancies.     If the Internal Justice System has to function effectively and independently, with full accountability and in a true federal sense of equity, independence and in empowered fashion, the OAJ should be made as a separate entity, independently financed and under the direct leadership of the Secretary General and no one else. It has to have its own oversight arrangements and subject to external audit scrutiny, reporting directly to the UN General Assembly.
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One of the important tasks, to be carried out within a time frame, of the Justice system should be to systematically review all the regulations, rules, procedures and methodologies of the UN and its agencies to ensure their compatibility and congruence with the foundational principles of the UN Charter and the Universal Declaration of Human Rights.

In the writer’s view many of the regulations and rules are needlessly made complex, contradictory, convoluted, counter-productive and therefore becoming subjective and ambivalent, amenable to manipulation. Often we find that contradiction between the effect and intent of the rules. There seems a culture of impunity and over-lordship in some areas.

There exists a huge disparity in the nature of performance appraisals; with norms being complex, no two cases are alike, consequently final evaluation and “judgment” easily fall on the wayside.

If the implementation of “rule of law” has to have any meaning, then the OAJ and the Internal Justice System have to establish its ground rules supported by the following four strong pillars:

  1. The regulations and rules are intended to protect the rights and interests of the staff in the context of UDHR, and facilitate the achievement of the work and the organization.
  2. The regulations and rules (laws) are intended to regulate and ensure integrity and smooth functioning of the system, thus raising its credibility and accountability to the stake holders.
  3. The laws and procedures employed in the achievement of organizational goals and objectives should be in congruence with the needs and aspirations of those who are intended to benefit.
  4. The laws are intended to be continuously alert and be ready to correct any imbalances in the system inside out.
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The UN Office of Staff Legal Assistance (OSLA)

The capacity in OSLA seems inadequate and may also suffer from resource constraints of many kinds. Volunteer services from within the system can at best have only a limited impact, as such volunteers may not have the time and resources themselves to do the job complete in all respects. It is not their fault, though their intentions are genuine and appreciated. Hypothetically, this situation can be addressed in many ways with some additional resource allocation and some out-of-box creative solutions.

For example, the UN Pensioners Associations can be asked to enroll qualified volunteers to help. Right now, only the Secretary General seems to be talking highly of the UN retirees and their valuable experience and wisdom, but none of the other agencies, operational departments, divisions or offices appear to have any clue of this accumulated knowledge and experience available inter alia in the area of legal support and justice.

In the writer’s view, most of the UN Pensioners Associations seem to be picnic and reunion clubs (nothing wrong with that) but they do little reflection on why we are here on this planet and what we can do to help others. Even those who appear to be active, function like franchise Pizza Hut or McDonald, with their agenda and menu prepared elsewhere and distributed everywhere. All these are a part of our human situation and need attention to ensure fulfillment of human rights.

Final Thoughts

While democracy and human rights exist on paper, only a small minority have the resources, connection or luck to be able to exercise these rights. There is no use blaming anybody, but we cannot avoid the blame if we all sit and watch the erosion of  these values in front of our eyes without getting disturbed and pinching our conscience.

The management of the UN is probably one of the biggest challenges in the world without borders. In fact, this world needs a world organization much more than whatever the UN bureaucracy might think, because, we need some “order” in the management of all the five elements of nature: earth, water, air, space, and fire (energy).

Such a mighty challenge requires vision – both short term and long term – and requires courage of conviction and a set of policies and principles to lead the world in the new spiritual pathway of total development based on “one for all and all for one” in sharing values and resources.  Jai Ho!

V. Muthuswami, Chennai, India
Joint Appellant of the Common Cause Appeal # UNAT 2009-001

* Freelance contextual translation of “dharma”: right type of thoughts issuing out in attitudes, behaviors, conduct and actions that are congruent to the principles of Global Compact of world business (and governance).

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3 thoughts on “Making UN Justice Edifice Work in Dharma”

  1. Among the email responses on the featured article received by the writer, some pointed to certain inherent contradictions of the Regulations of the UNJSPF.  Here is one example: 

    Article 43 – Recovery of indebtedness to the fund: The Board may deduct from any benefit payable under these Regulations to a participant, or on his or her account, the amount of any indebtedness to the Fund by the participant or by any beneficiary or third person to whom payment has been made otherwise than in accordance with these Regulations, including interest and costs, where appropriate.
    Article 44 – Interest on unpaid benefits:The Fund shall not be liable for interest on any due but unpaid benefits.
    Don’t you see the “inequity” in the rules above: when you are indebted to the UNJSPF unintended, or even for reasons of ignorance of the requirements not notified to you, you are liable to pay back or your benefits deducted accordingly WITH INTERESTS AND COSTS (OF SUCH RECOVERY EFFORTS).   
    Whereas when the UNJSPF (intentionally, unintentionally or for any other reason) delayed benefit payments, such delayed payments SHALL NOT BE LIABLE FOR INTEREST.
    Simply put: as a participant or beneficiary, it may be human to “err” but “pay” for such error(s).As a supra-human entity, the UNJSPF do not “err” and thus NOT liable for any penalty.
    Fortunately, in the case # 1592 of Kofi Annan vs. UNJSPF and in judgement # 1495 of 23 December 2009, the UN Admin Tribunal ordered “that the Applicant’s (Kofi Annan) benefits be paid with interest calculated at eight per cent per annum from1 January 2007”.  
    As the new avatar UN Appeals Tribunal hears/reviews  its first set of cases in 2010 (15 March – 1 April 2010), we very much like to see the new wind of “justice” in its true sense start blowing and clean up the clutters of past errors and misdeeds.  

    Following the letter & spirit of UN Staff Regulations and Rules, the UNJSPF should be made accountable and the concerned official(s) should be asked to make good of the loss incurred due to its errors of commission & omission. 
    Justice Jai Ho!

  2. You maybe right, to some extent, my friend.

    However, according to another case (Kofi Annan vs UNJSPF), UN SecGen is pronounced as NOT a UN staff member, but elected by and representing UN (highest body of UN GA+ its constituents)  for a specific period of time.  His/her job is specifically to do things on behalf of the UN GA and its constituents.  SecGen is in a manner the agent of the General Assembly.

    Hence, the procedure of  considering the cases as staff member vs Secretary General  just means that the case is constitutionally “against” the organisation represented in form and name of Secretary General.  If I were to think out-of-box solution to this dichotomy, then all staff cases against the organisation should be seen “staff member VS Under Secretary General (of chief of HR).  

    In a constitutional republic like India, all complaints against the central government going to the apex court  are listed as the plaintiffs versus “The President of India” who is also responsible for the final consent to the appointments of Supreme Court judges. Nonetheless, there is no confusion how such procedures came into vogue. Hope and pray there exist a good deal of analytical, logical and creative thinking  and understanding in the UN portals. 

  3. Insightful article, thank you.
    One observation: since all the cases of the UN Internal Justice system are in effect against the UN SG (Respondent); this statement deserves a second look: “the OAJ should be made as a separate entity, independently financed and under the direct leadership of the Secretary General and no one else.”
    The UN SG should not supervise the UN Internal Justice system while he is a party to all the cases. Wouldn’t it make the process more fair if the UN General Assembly would supervise the UN Internal Justice system?

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