This is a quick review of a UN Whistle-Blower Protection case through the Prism of Law of Dharma. Order number 19 (NY/2010) of the UN Disputes Tribunal, 3 Feb 2010, Wasserstrom vs UN Secretary-General.
“You have a right to action/work; but not to its fruits (results). Don’t be motivated by rewards/results, nor become a prisoner of inaction.” Bhagavad Gita, ch. 2/47.
Bravo Judge Adams, of UNDT, for helping to restore some signs of independence, hope and trust in the new avatar of the UN Internal Justice System!
Indeed, the case of protection to whistle blowers has been always a problem in most countries; even in the USA with elaborate laws available for enforcement it has always been a calculated risk.
In the case of UN, the staff regulations and rules have specific obligation for staff to report potential or actual wrong doings, with hopefully some form of protection from retaliation by powers-that-be and/or the concerned accused individuals or groups. Here, Wassestorm, formerly a professional staff of the UN Mission in Kosovo, is the Appellant of the case and whose contract with the UN, I guess, was already terminated by end June 2007, but who is still fighting to resurrect his integrity and reputation, muddled by/through the UN system. We have the UN Ethics Office that supposedly found a credible case of retaliation against the appellant, but the Office of Internal Oversight Services (OIOS ) whose investigation found that there was NO retaliation. Finally, the case comes to UNDT for some final understanding and possible resolution.
Complex and Confused Approaches:
The case grows from whistle-blower’s protection into administrative doctrines, contract laws, et al drawing some kind of parallel to the case of ILO Admin Tribunal (ref: Judgement 1203). In the process, the whole gamut of terms of reference, rules, regulations, procedures, et al of the office of Ombudsman and Ethics office functions were all analyzed. I don’t know for what. This is how simple “common sense” becomes a “non-sense”. Never mind!
What happens is that the system does not worry about its unilateral or joint decisions at different power centers impacting the lives of many individuals. The judge himself at one stage seemed having difficulty in understanding the Respondent’s submission on certain aspects of procedures followed by the management. Another facet is to what extent the Ethics Office responsibility and its involvement to resolve the issue could be considered inscrutable, meritorious and above board.
The Judge was clear in his mind in stating that there are a number of issues raising concern about the adequacy of investigation and correctness of the management approach (viz., retaliation, no retaliation or what).
Thus, Judge gives necessary orders stating that the applicant and his legal adviser should receive the full report of the investigation authority. Therefore, the whole complaint remains pending and still hangs until final review/judgment pronouncement.
The UNDT noted finally that the applicant has a right to be heard on any adverse investigation before a decision was made.
Hence, UNDT makes a tentative view and wants to wait for final determination only upon consideration of the whole of the evidence and the submission of all the parties concerned.
Assuming Wasserstorm is no longer with the UN service and is now a private citizen, can anything stop him from seeking legal remedy through national judiciary on a defamation suit? If that happens, then the UN may be obliged to relieve those senior officials of any immunity from prosecution under law of the land. Retaliation against whistle blowers or absence of it cannot be proffered as a part of the UN official function by any stretch of imagination.
It also makes abundantly clear that even the Ethics Office or the OIOS are not paragon of virtues and devoid of the usual play of “egos” big and small. In fact, it behoves of the organization to make appointments to those offices analogous to judicial appointments after thorough background search and senate clearance in the US. It will be a shame if more and more decisions of EO & OIOS come under cloud of bias or wrong strategies.
V. Muthuswami, Chennai, India.
Joint appellant to the Common Cause Appeal # UNAT 2009-001.
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