Uncommon Delay of Common Cause Appeal

Uncommon Delay of Common Cause AppealIt is in justice that the ordering of society is centered.” Aristotle (Greek Philosopher: 384 BC – 322 BC).
Justice delayed is justice denied.” William Gladstone (British Politician : 1809-1898).

This is an open appeal to the UN Appeals Tribunal regarding Common Cause Appeal # UNAT 2009-001.

As far as the writer remembers, there had been several individual appeals during the period 1980’s to early 2000’s from UN retirees asking for the clarification and justification for the life-long denial of full pension to the 1/3 lump sum seekers despite the fact the lump sum + generous interest thereon get fully recovered (by way of reduced pension) in a period of 11-13 years upon retirement. To the extent it was known, such appeals were either rejected outright or trashed without any explanation. One has to experience it to believe how difficult and how long it might take to obtain from UNJSPF any sensible and reasonable answers to the queries from the retirees/beneficiaries. That is the power of the UN Pension Empire!

During 1990’s and 2000’s, some of the informed retirees tried to raise this common issue through the UN Pensioners Associations, only to be rebuffed as impractical to say it mildly, or accused as an arrogant affront to the “paragon” of UNJSPF, who are our just and “trustful” managing trustees of contributions made both by staff and the employing organizations.

It would be an outstanding analysis in behavioural science if there is a study to find out how some of the outfits born of UN seem more powerful and influential than others, even when some of their manifest actions attract questioning and/or call for clarification, explanation and justification. Indeed, UNJSPF has long proved to be a powerful “Wall-Street” entity (that can defy the President of the USA) within the UN territory.

Life with UN Pensioners Association

In seeking support from the UN Pensioners Associations, at the country level and through various so called regional chapters of a larger association, it became clear that these outfits at best operate like franchisees, of the UNJSPF/UNJSPB or the HQ-based Federation of Former Civil Servants/Pensioners Associations, with agenda and menu decided elsewhere. They seem unable to think beyond their self-drawn boundaries in any logical or creative ways, nor do they seem much bothered about the rule of law, equity and fairness.

There is nothing wrong in such a mental state, since most of these associations are meant to organize periodic reunion picnics and annual “pilgrimage” country visits to exotic places. The writer being member in two such UN Pensioners Associations, have enjoyed a few such outings and energized by union with nature, and talking about good old days and past glory!

It could have made a difference if some of these Associations were also prepared to listen to some of our arguments and the logic behind such appeals. Since these outfits are not accountable to anyone except to their regular club members and picnic-goers, there has been no problem in holding to their official status in succession and carry on with the rituals of usual analysis of the past with no lessons to be learned, and non-performance action plans.

A change of scenes and effort to seek justice and enlightenment

One of the UNICEF retirees submitted (I believe early in 1990’s) a detailed analysis and a table showing how the 1/3 lump sum got recovered during his first 11+ years of retirement and questioned why was he to be punished with reduced pension until his death (which occurred sometime in late 1990s) – (please read article in this website: UN Retirees Common Cause Appeal Hearing – posted on 10 Feb 2010).

In the absence of any reasonable response from the UN Pensioners Associations (India and Europe), and thanks to the Internet and digital revolution, a number of retirees have decided and again started sending individual appeals to the UNJSPF by late 2008 or early 2009 – most by email and some through normal airmail. Also thanks to uncommon guidance from the CEO/Legal Office of the UNJSPF, many retirees submitted similarly worded individually signed appeals by end May 2009 to the Standing Committee of the UN Joint Staff Pension Board. These individualized appeals drew attention to the provisions of UDHR to ensure equity, fairness and justice among the 1/3 lump sum recipients and full pensioners once the requirement of full return of lump sum plus interest payment was met.

But common to the UNJSPB way of doing things, none of the appellants was invited to present our case in its reported Vienna conclave in July 2009. We were later informed by similarly worded individual letters advising of no change in the retiree benefits, viz. no restoration of full pension for life to the 1/3 lump sum recipients.

We were also advised by the same legal office of the UNJSPF that we are free to make an appeal to the UN Appeals Tribunal, as the new and reformed UNAT coming into being by 1 July 2009 with the promise of greater independence, transparency, fairness and accountability.

So, three retiree appellants (Messrs. Sundaram, Muthuswami and Srinivasan) had jointly submitted by 27 August 2009, the common cause appeal (Case # UNAT 2009-001), and we were informed that the case file was ready by October 2009, with additional information from the appellants and also response from the respondent (UNJSPF). Not counting the earlier appeals to UNJSPF, the current and most recent common cause appeal # UNAT 2009-001 itself has been sitting in the docket for over seven months, without an iota of explanation why should there be such a delay.

Our common cause appeal is just simple: neither the UNJSPF Regulation Article 1(f), nor 28(g), nor any other regulation or rule has given any authority to declare life-time denial of full pension for the 1/3 lump seekers. Nor was/is any agreement signed between the beneficiary and UNJSPF by which the former has surrendered his/her right for equity and fairness in receiving full pension, once the 1/3 lump is fully recovered with interest.

Truth may sound strange, but read the UNJSPF Regulation articles 43 & 44 setting the example of unparalleled unfairness – viz. dues owed to UNJSPF and recovered will be subject to interest payment; whereas the UNJSPF is not liable to pay any interest on any of its dues or benefits payable! (UN Administrative Tribunal overruled this unfair practice in its judgement # 1495 of 23 December 2009 in the case of Kofi Annan vs. UNJSPF – see the featured article “Case of Common Sense and Prudence” of 14 Feb 2010 in this website).

In other words, the state of affairs never changed during the past six decades, because UNJSPF actions cannot the challenged in any national courts, and the UN own internal justice system left much to be desired. This must be the most telling example how the great principles of Universal Declaration of Human Rights found dubious expression within the custodian organization itself.

Should the 60 years of wait go with little relevance or go without restoring justice? Only the new Honorable UNAT Judges can decide.

Registry at UN Appeals Tribunal (born 1 July 2009) and its uniqueness

The uniqueness of the UNAT registry is that appellant(s) have to follow up, remind frequently about the case’s journey hopefully toward proper review and hearing. After persistent efforts, we might be favoured with a short email message without any explanation. Being the first case of the UNAT (UNAT 2009-001) we believed the initial information from the Registrar that the case would be reviewed in its first session on Geneva (15 March – 1 April 2010), and made travel arrangements to attend the oral hearing requested earlier. After much waiting, we first heard that no oral hearing was foreseen (no reason given); and subsequently we were informed that the case hearing was postponed to the next session of the UNAT, again without assigning any reason for this postponement.

We assume UNAT’s next (second) session to be in New York, hopefully in the not too distant future. We are again ready to make travel arrangements to be present at the hearing. But, we have recently been forewarned of possible video-conferencing, which is a poor substitute for the requested personal oral hearing for obvious reasons – our justifiable fear of any back-stage manipulation and a big difference in time-zone and its effect on human physiology and biology.

Pension can never be fully commuted

The Appellants have long been submitting that the only logical interpretation that can be given to commutation is that it is an advance amount paid against what was due in the future. The popular conception of commutation is the sale of a part of pension for a lump sum amount. The commuted value of pension is calculated with reference to a commutation table which, inter alia, takes into account the longevity of pensioners and the interest rate. The table indicates the commuted value of pension expressed as number of years’ purchase with reference to the age of pensioner on his next birth day. The Commutation value of pension goes on decreasing as the age of pensioner increases. Normally the commuted portion of pension will be restored after the recovery of the commuted payment plus interest.

As soon as this amount is recovered (with interest) by the government or UNJSPF the commuted pension must be restored in full. In fact, for millions of pensioners this is the principle which the Indian Government (both federal and at provincial levels) follows.

UNJSPF’s totally different yardstick and anachronistic interpretation, being applied unchallenged, could make the principle of equity, fairness and justice enshrined in the Universal Declaration of Human Rights as something dispensable and to be ignored with impunity.

Since the issue involved is the commutation of pension the appellants submit that pension can never be fully and finally commuted for the reasons that:

  • a pension is not capable of being determined since a pension is related to the life-span of a person and the life-span of a person cannot be pre-determined in advance; and
  • value of pension cannot be pre-determined because it depends on the value of quality of life and index of prices which cannot be forecast.

As such, an equivalent lump sum value of pension can never be calculated. Therefore, the concept of a Lump Sum in Lieu of Pension had no basis and has already been decided by the Indian Supreme Court in the relevant Common Cause Judgment. As such, after the end of the Purchase Period used for 1/3 lump sum commutation (be it 12 or 13 or whatever years), all pensioners have to be treated at par.

Open Appeal to the Erudite Honorable UNAT

Since the beginning of the current appeal process toward the close of 2008, the appellants have known of several of senior retiree colleagues within known circle have passed away. There are some in their 80’s who are still hopefully clinging to life and looking to the day when the unjust denial of the restoration of full pension is repelled because of the fact that they all had paid back to the UNJSPF more than double of the commuted 1/3 lump sum with interest.

Can and will the UN Appeals Tribunal see justice in not punishing the retirees for living long and contributing their wisdom and goodwill to society?

Hence, in the name of justice and moral ownership of the common cause appeal # UNAT 2009-001, we are insisting on our physical presence and oral hearing in front of the learned Honorable Judges.

We honestly believe that the Indian Supreme Court judgement of 9 December 1986 on the Common Cause Writ Petition # 3958-1 of 1983 restoring full pension from 15th year of retirement to the 1/3 commuted pensioners is indeed a fair precedent and comparable to UN retirees situation. Both the Indian Supreme Court and many State High Courts had since ordered the implementation of the judgment to all branches of civil service.

We continue to believe that the reformed UN Internal Justice is endowed with senior judges from around the world known for their jurisprudence, INDEPENDENCE, integrity, international and common rules of law in the context of UN Charter and Universal Declaration of Human Rights (UDHR).

As they are elected by the UN General Assembly their sacred justice profession remains totally free and transparent, unfettered by the bureaucratic shackles.

After this long wait, we still believe that true fairness and justice will finally prevail.

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

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2 Replies to “Uncommon Delay of Common Cause Appeal”

  1. Here is some of what Honorable Judge Nkemdilim Izuako stated on Friday 7 May 2010 in Case No. UNDT/NBI009/039, Judgment UNDT/2010/089:

    This is a case which, if the Managers responsible for taking decision on behalf of the Respondent had exhibited sufficient honesty and humaneness, would never have fount its way to the Tribunal. It is the attribute of a good manager to honestly appraise situations and in fact to make concessions where these are called for rather than to embarrass the Organization by engaging in unnecessary disputes.

    The words of the Honorable Judge denounce the lack of honesty and humaneness of the UN Administration [Respondent].

  2. Though the UNAT concluded its first session in Geneva as far back as 1 April 2010, we are yet to see its judgments/orders/decisions on the website, so as to appreciate how the new reformed Internal Justice System at the UNAT level functions.

    In the case of UNDT, its judgment/order-trends out of NY, GVA & NBO offer variations in the ways the subject matters were approached, analyzed and decisions pronounced. Some judgments have shown much clearer and holistic understanding of the cases in the context of organizational CHARTER, human rights, mission goals, culture and environment. Some other judgments/decisions/orders take the path of confining within the classic boundaries of the stipulated articles, rules and procedures.

    For example; in UNDT/GVA order 2010-56 of 6 May 2010, the Honorable Judge said the following:

    QUOTE:
    14. It may be reiterated that the General Assembly in its resolution 62/228 on administration of justice at the United Nations, which established the OSLA, stipulated that “staff at all duty stations shall continue to have access to legal assistance”. The Tribunal has already found that this resolution must be interpreted as creating a right for staff members to request legal counsel from OSLA, which has an obligation to provide proper advice, including on the merits of the case, see UNDT/2009/93, Syed.
    17… The question whether the new system of internal justice suffers from a general lack of counsel does not fall within the jurisdiction of the Tribunal.
    UNQUOTE

    When you read the above quoted paragraphs again, it seems clear that while UNDT is acknowledging the sanctity of the UN-GA resolution providing legal counsel for staff at their places, the above statement gives the impression that the new UN Internal Justice system (UNDT/UNAT) is not given the authority/jurisdiction to enforce that resolution.

    Though not a great legal pundit, I believe that the UN Internal Justice system should become and remain a role model of a good and honest justice system. It can never wash its hands off any case just because the applicant may not be as smart as opposing parties, including the clever manipulation of the judicial process by the UN Administration and its lawyers.

    In other words, I expect the Honorable Judges should remain much much above the systems and procedures, because these are man-made and therefore subject to modification/correction based on life experience.

    Any shortcoming in the functioning of the system amounts to denial of justice in the final analysis.

    Hence, much depends on these external Honorable Judges occupying important seats of justice at the UNDT and UNAT. Hope they will continue to remain independent and intelligent, both in jurisprudence and human-affairs, and will continue to uphold the rule of law and law of Dharma.

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