In our article, UN Justice and Secrecy, we exposed the UN attempts to cover-up the confrontation between the UN Administration and the Honorable Judge Adams of the UN Dispute Tribunal (UNDT) in New York. The Honorable Judge Adams has issued 5 orders to the UN Administration to produce documents and to bring a UN official before the Tribunal.
As we established in the above article, our purpose here is not to discuss the merit of this case, this is up to the most capable and brave Honorable Judge Adams, our purpose in this article is to expose the internal corruption of the UN Administration and its most recent attempts to defeat its own new Justice System, our purpose is also to expose the UN Administration under-handed maneuvers to side-step UNDT and short-circuit justice because the UN Administration simply can not, will not, and apparently does not even know how to be transparent, fair, truthful and honest.
These are the 5 orders of the Honorable Judge Adams:
Instead of complying with these reasonable and clear orders, by disclosing to the Tribunal the required documents and the contact information of the UN official who decided to withhold information from the Tribunal; the UN Administration decided to appeal the Honorable Judge’s Orders, even before a judgment was issued. Yes, amazing but true, the UN Administration appealed the Orders even before a judgment was issued.
The UN Administration is attempting to take this case away from the Honorable Judge Adams and UNDT to appeal it before another part of the UN Justice System, that is the UN Administrative Tribunal (UNAT), even before the Honorable Judge Adams has issued any Judgments in this case at all. The purpose of this maneuver by the UN Administration is:
- To go around the clear orders of the Honorable Judge Adams, simply because the UN Administration does not know how to be truthful, and the UN Administration is afraid that disclosing these documents will expose the real magnitude of the widespread internal corruption especially in the area of appointments in senior UN positions
- To delay justice, as it will take at least 3 more months for the UNAT to even start to consider this case, that maneuver by the UN Administration is designed to show that if the UN Administration does not get away with the old corrupt practices, it will then use delay tactics and other gimmicks to get in the way of justice
- To set the precedent that the UN Administration will continue, under the new UN Justice System, the same old corrupt practices of allowing the UN Administration to be the defendant, judge and jury all at the same time in the same case. That was the de facto practice of the UN Administration in the last 60 years.
In a solid 35-page, dated 26 March 2010, the Honorable Judge Adams sets the record straight with abundant insight and wisdom. Here is some of what the Honorable Judge Adams wrote in this last ruling:
- I ruled that the Secretary-General would not be heard in the second case and he should take fair notice that, if his counsel seeks to be heard in other cases before me, my present inclination was that, until the disobedience of the Secretary-General was purged by producing the documents ordered to be produced, accompanied by an apology to the Tribunal and an undertaking not -to disobey an order again, the respondent would not be entitled to appear, before me.
- On 11 March, two counsel for the respondent again appeared before me. The Tribunal was informed that counsel was unaware of the identity of the officer but had informed her “bosses” of the order. When asked who her “bosses” were, she said she was not authorized to give their names, which could be ascertained from the organizational chart. Her junior reiterated the lack of authorization, despite the direction of the Tribunal. It was submitted that a notice of appeal against all five orders had been filed and that, accordingly, they were stayed under art 7.5 of the ATS and, hence, the Tribunal had no power to order identification of the mentioned “bosses” .
- These matters follow both from the distinction between a profession and a job and the necessary relationship of implicit trust between Bench and Bar. Counsel owe the Tribunal an apology and I expectit to be forthcoming without prevarication.
- The legal obligation to obey the order does not derive from its legal correctness, since this is a matter for the Tribunal and not any party to determine, and the mere fact that the argument is that the Tribunal has no jurisdiction to make the ‘order does not change this fundamental point The Tribunal undoubtedly has jurisdiction to determine its jurisdiction: see art 2.6 of DTS.
- There is no reservation to the Secretary-General of any power to withhold documents required to be produced or to unilaterally determine the issue of confidentiality.
- It is the responsibility of the Secretary General to obey the orders of the Tribunal.
- In respect of compensation, the Tribunal must draw all available adverse inferences, since the Secretary-General cannot be permitted to profit from his disobedience.
- Accordingly although it is quite correct to describe wilful disobedience of an order as contempt, the consequence of the Tribunal being unable to hear the Secretary-General at all until the disobedience is purged is not punitive but consequential and resort to notions of contempt is unnecessary.
- For the reasons I have given, I do not see that it is sufficient to give judgment for the applicant in individual cases where, as it happens, the respondent has decided to disobey the Tribunal’s orders.
- The notion that none of these orders -. both conventional and essential for effective case management – and which might well be cascaded could require things to be done before 45 days had expired after each one is so absurd as to lead ineluctably to the conclusion that art 11 and art 11.3 in particular cannot apply to executory orders at all, in particular orders to produce documents.
- Under art 7 and 9 of these Rules, the appellant has 45 days to appeal a decision of the Dispute Tribunal and the respondent has 45 days in which to file an answer. Consequently, three months could well elapse even before the appeal of an order is ready for hearing. Cases interrupted by appeals against procedural orders could therefore experience very substantial delays indeed, possibly years. It is impossible to accept that such a consequence was contemplated, let alone intended, by the’ General Assembly.
- an order to produce documents is not a judgment of any kind, interim, provisional or final.
- Counsel stated, “We agree that Mr Bertucci could bring the case he did, it was receivable” but that, given the width of the Secretary General’s discretion, almost any evidence would not be relevant.
- Although a stay was not initially sought by the respondent despite its evident availability, I have considered in fairness whether in the present circumstances I should order a stay pending the outcome of the appeal. I do not do so for two reasons. A stay can only be justified for good reasons. Where the essential ground is that the order is subject to appeal, it is necessary to be persuaded that there are substantial grounds for appeal with significant prospects of success, or that irreparable injury would be occasioned, as
- by destruction of the subject matter of the litigation, or there is some other good reason for doing so. Here, the respondent has not, it appears, yet put its grounds of appeal in final form and will hot do so for some time. This is surprising. It may be naive, but one would have thought that, before deciding to disobey an order of the Tribunal, careful consideration would first have been given to the legal questions involved and a clear conclusion drawn about its legality.
- Accordingly, there is no proper basis for the Tribunal to order a stay of its orders.
It is clear that the Honorable Judge Adams has rejected the UN Administration’s gimmicks and attempts to go around his Orders, it is also clear that the Honorable Judge Adams will continue to pursue and enforce his Orders until the full compliance of the UN Administration with these orders. The Honorable Judge Adams, and the other Honorable Judges of the new UN Justice Systems, may be the last hope to save the UN Administration from its own corruption and abuse of authority.
When Mr. Ban Ki-moon became the UN Secretary-General, one of the first decisions he made was a “Disclosure Policy”. He ordered all the UN senior staff, D-1 or L-6 or higher, to file an annual statement of Financial Disclosure starting with the year 2006. If Mr. Ban Ki-moon sincerely meant that as an initiative for transparency and against corruption; then why can’t Mr. Ban Ki-moon update his “Disclosure Policy” now by ordering all the UN staff to fully and immediately disclose to the UNDT and UNAT all required documents and all required information?!
M. Alaadin A. Morsy
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