|
|||||
UN Performance Problems UN Management Accountability Struggles Where is the Rule of Law? Inadequate UN Oversight Recent Developments
|
|
Many
of the "success cases" involve relatively clear-cut, unambiguous, and low-level
matters. If endorsed by a JAB
panel (a 50 percent chance or
less?), and then endorsed by the Secretary-General's representatives, also
perhaps a 50 percent chance or less), the staff member may receive some an
adjustment of the decision if minor, or some monetary compensation. Fifty percent of fifty percent is
only 25 percent, and the process may only partially endorse the
appellant's request, or the least important part. In any event, there can be some
relief for the determined appellant. During
the decade following the failed 1993 General Assembly management
accountability resolution and the countervailing and triumphant "free the
managers" measures, UN management reform policies have emphasized issues
of management and staff accountability, especially for performance, and
broader and much more complex and sensitive issues of waste, fraud and
abuse and staff involvement in, or reporting of, those matters.
This
should long since have changed the rather mechanical old internal justice
appeals process from a focus on narrow administrative decisions, to one
that carefully considers and applies the new regulations, rules and
guidance concerning broader behavior and performance patterns and
obligations under the Code of Conduct of 1998. Under these new elements of
guidance and behaviour, any staff member has a much tougher task bring
such matters to the internal justice system, but in the absence of serious
accountability mechanisms and sanctions in the Secretariat, the staff
member has no choice if he or she wants to obtain any justice at all. However,
the internal justice system still seems largely oblivious to the policies,
principles, and guidance regarding staff performance, accountability,
waste, misconduct, and abuse of recent years, and does not know how to
deal with their violation.
Such issues are increasingly raised in recent staff appeals to the
UN internal justice system, as staff seek to effectively protest grave
wrongdoing in their workplace and obtain corrective action and
redress. For
instance, the updated UN staff rules state firmly that "any form of
discrimination or harassment" is prohibited. But what exactly does that mean in
daily practice? Is it in fact
enforced by orderly investigation, review, and disciplinary mechanisms in
a UN which employs too many autocratic and recently "freed" managers? Staff
Rule 101.2 (d), in "Status, basic rights
and duties of United Nations staff members", ST/SGB/2002/13 of 1
November 2002.
The
answer in this case (and, IO Watch believes, for all the other performance
and conduct issues noted above) seems to be no. A detailed study by an
international law firm of UN sexual harassment policy in March 2001 was
quite critical of UN implementation of its anti-harassment policy, and it
appears that the Secretariat has still not corrected the problems. The
report found that: "The UN Sexual Harassment Policy,
although in some respects reading well on the surface, is deficient when
measured against standards presently applicable under host country [US] law. It is not enough to simply have a
written policy which prohibits sexual harassment and purports to provide a
mechanism for making and resolving complaints …
… the UN Policy is remarkable for
its complete failure to mention retaliation. In addition, it [seems to involve]
… disciplinary procedures which are confusing, cumbersome, bureaucratic
and painfully slow. Moreover,
because the investigation and determination procedures are adversary in
nature and the basis of determinations apparently kept secret, it seems
inevitable that employees perceive the process as being unfair and many
actions as being retaliatory. … … we believe… that the [UN policy]
would not meet [US] current standards for an effective anti-sexual
harassment policy. … the 'four P's' are either not sufficiently present or
are lacking entirely, i.e., Policy in writing, Prompt investigation,
Protection of the victim, Punishment of the harasser." "Report
commenting on United Nations sexual harassment policy", Chadbourne &
Park LLP, New York, March 2001, to be found at www.un.org/staff/panelofcounsel/shrep.htm
. Another
example of the damage done by the outmoded and hopelessly slow internal
justice system is that of failed whistleblowers who, far from being
protected for reporting wrongdoing in their workplace, can "float" for
years unassigned and waiting for resolution of their situation, a very
costly waste of staff resources and funds. This situation occurs too often in
the UN Secretariat, but is perhaps best described by a senior
whistleblower's situation at the European
Commission: "[Marta Andreasen, the suspended
chief accountant of the European Commission, is simply on call and barred
from EU buildings in Brussels.
She recently accepted an award] … for 'choosing truth over self' by
exposing government wrongdoing.
The same week, she was arguing with European Commission
functionaries about a disciplinary process dragging toward a September
finale. … [She] has reduced the
essence of her eurocratic story into a [public] speech of 7 minutes 35
seconds: New job. Seek
reform. Encounter
resistance. Public
exposure. Suspension. Limbo. [In] May 2002, …she began alerting
her bosses … to [risks of] error and fraud just five months after she
started her job. 'Had they
followed my advice, today … the funds would be protected. Instead, I was suspended, and the
EC said they already knew about the
problems.' Today, the commission is hard
pressed to explain precisely why disciplinary proceedings have
lingered. The accusations are
also a little complicated.
She was not suspended because of her withering criticism, which
gathered support … … but for violating [EU] … staff regulations: failure to show sufficient loyalty and respect … by expressing her concerns directly in letters to the commission's president and 10 legislators. …" Doreen Carvajal, "The EU and blowing the whistle", The International Herald Tribune, July 28, 2004.
UN
staff members who appealed against workplace problems already faced a
daunting task in past decades under the internal justice processes, but
they confront even greater problems versus the "freed" UN managers of the
21st century. As a 1984 article observed, and as still
applies: "If the complaint has to do
with management direction, all hands in OPS [Personnel] and its affiliates close ranks to
gather material to fashion as strong a personnel case as possible,
and no recognition whatsoever is made of the key management issue.
….OPS has scant choice but to bypass the administrative implications of
the case and propel it rapidly to the quasi-legal restraints of the Joint
Appeals Board where it can be confined. The upshot is that a
staff member must sue to force a management director to do his
administrative duty. The guilty persons can get away
with this kind of irresponsible performance more readily in the
bureaucratic system of the UN than in any foreign office, however
small. There is no really
effective vertical responsibility upwards within the UN table of
organization, nor effective direction downward
…" Donald
Dunham, "Management by personnel action", Secretariat News (New
York), November 30, 1984, p. 11.
[emphasis
added] These
questions, of course, lead back to the entire issue of proper conduct and
integrity within the UN Secretariat. It is interesting that in 2003, 58 years after the UN Charter called
expressly for "the highest standards" of integrity in staff matters, the
Secretariat finally launched its grand three-year "integrity initiative",
as already discussed.
The
new focus on integrity, of course, is better late than never, but it would
be nice if it would deal as its top priority with the grave day-to-day
"integrity deficit" in UN operations. Despite all the Code of Conduct
and other exhortations, IO Watch believes that UN staff are still woefully
exposed when they attempt to seek justice before a recalcitrant internal
justice system that will not address management accountability
abuses. For
the past decade those staff who believed that accountability existed in
the UN Secretariat as Secretary-General Annan confidently stated in 2000
(and before and since), have been punished severely for their trust in
official polisy statements,
most notably the overall assessment by Secretary-General Annan in 2000
that: "
…the
Secretary-General is confident that the
comprehensive system of
accountability now in place ensures that accountability mechanisms
are effectively used, are seen to be used, and ensure that staff at all
levels are held accountable for their actions and inaction." The General
Assembly may wish to take note of the mechanisms in place since 1994,
including those discussed in the present report, which together constitute
the comprehensive system of accountability for the
Organization." "Accountability and responsibility:
Report of the Secretary-General", A/55/270 of 3 August 2000,
Summary, paras. 1-2, 47-48.
[emphasis added.]
The
ICSAB standards of 1954 express the integrity concept much more clearly,
eloquently, and broadly than does the "Code of Conduct" duties document
promulgated in 1998. The
ICSAB began by stating, as the very first of its "Basic Considerations",
that: "One of the
fundamental, if not paramount, standards of conduct derives from the
requirement of integrity, underlined in Article 101 of the United Nations
Charter … Integrity, while
perhaps not subject to exhaustive and precise definition, must be
judged on the basis of the total behaviour of the person concerned. Such elemental personal or private
qualities as honesty, truthfulness, fidelity, probity and freedom from
corrupting influences, are clearly included. For the international official,
however, the Charter also requires integrity as a public official,
and especially an international official, … [who] has dedicated
himself to regulate his conduct with the interests of the
intrnational organization only in view." "Report on the standards of conduct in the international civil service 1954", International Civil Service Advisory Board, included as Annex V, para. 4, of the "Status, basic rights and duties of
United Nations staff members", ST/SGB/1998/19 of 10 December
1998.
Even
the UN Secretariat, in its 1994 documents prepared for the working group
considering whether to create a new tribunal or "fix" the old one (the
latter option won, of course) emphasized a broad definition in dealing
with alleged cases of fraud in the UN. It stated
that: "In the General
Assembly discussions … [of late
1993, leading to the resolution to establish the working group], it was
clear that the term 'fraud' was intended to be understood in a very
wide sense, whether or not it actually resulted in a financial
loss to the Organization or a financial gain to the party committing the
fraud. Thus it may
entail an attempt by a party to obtain under false pretences an advantage
in some other sense than a direct financial benefit." "Alleged cases of fraud in the UN:
Study of the possibility of the establishment of a new jurisdictional and
procedural mechanism or of the extension of mandates and improvement of
existing jurisdictional and procedural mechamisms; Overview by the
Secretariat", UN document A/AC.243/1994/L.3 of 4 April 1994, para.
4. [Note: This proposed mechanism is discussed at the end
of the discussion of this topic as the "missing process."]
Much
more serious cases alleging mismanagement, abuse, misconduct, and severe
actions taken against staff are now in the system. They have obvious significance for
the staff at large, and they demonstrate that the existing internal
justice system does not deal
with them properly or effectively, or maintain morale, or establish
accountability.
IO
Watch concludes that the present internal justice system is not
comprehensive or flexible enough (or willing) to enforce the important and
specific new staff conduct requirements of a "modern management culture"
as established by the General Assembly. The Secretariat has acknowledged,
but made no effort to
overcome, the widespread feeling among staff that the UN internal justice
system favours managers, and
protects them. In short, IO Watch believes that the "administration of
justice" is probably the weakest link in the Organization's still largely
conceptual "management accountability system", although it should be the
ultimate cornerstone of that system. The
demands of modern organizational governance, oversight, labor laws, and
occupational fraud and abuse processes must force the internal justice
system away from its old, narrow focus on appeals against relatively
minor, formal, administrative decisions. The JAB, JDC, and UNAT at present do not protect
against the much more important and egregious abusive behaviors and
mismanagement in the UN Secretariat which violate, often quite flagrantly,
the new standards of accountability,
integrity, and proper conduct. Beigbeder, Yves, The internal
management of United Nations organizations: The long quest for
reform, St. Martins
Press, New York, 1997, Chapter 7, "The extent of fraud and losses",
pp. 124-128.
As
discussed earlier under the subsection on an Inept
"Administration
of Justice" System , all parties are finally starting to focus on
the fundamental changes needed in UN internal justice processes. However, deliberations may drag on
for several years at best before any real decisions and actions are taken.
Meanwhile, UN managers will continue on with impunity, while staff who
have entrusted their fates to the internal justice system will continue to
suffer gravely from its debilities. The
old UN internal justice system thus continues along in 2004 with almost
all the old flaws. A first IO
Watch overview of the weaknesses of the major processes of the system -- with much more information to
come -- can be summarized under the three major stages, the JABs, the
JDCs, and the UNAT. Oh yes,
there was also the special Tribunal that was to be but, like so many other
UN reforms, came to naught. THE
FIRST INTERNAL JUSTICE PROCESS, THE JOINT APPEALS
BOARD
immediately places any staff member as an "appellant" standing "versus the
Secretary-General", a very intimidating position. (It means broadly that he or she
stands against the entire organization and specifically
against the Secretary-General's entire group of full-time lawyers and
personnel people who have played this game for years.) The appellant,
meanwhile, must use a UN staff volunteer advisor, often with no real legal
background (i.e., there is no legal "parallelism of forms between the
parties."). The Administration also creates many procedural delays that
make JAB/UNAT cases drag on for three to five years. The
JAB process is costly (it has been estimated at up to $50,000 per appeal)
and time-consuming for all concerned. UN staff who appeal risk career
destruction as "troublemakers" (which is why a World Bank survey showed
that 95% of its staff decide not to appeal their grievances.) The UN Administration not only
makes the contested decisions, but then adjudicates any objections to
them. Therefore, there is no
separation of executive and judicial functions, and the Administration
acts as "prosecutor, judge, jury, and executioner." This heavy-handed process
paralyses "justice," and runs quite contrary to the rule of law and human
rights principles.
Mark A. Roy, "For a separate office
for administration of justice in the United Nations", UN Staff
Report, July 1993.
[Note: the many excellent articles
over the decades on the deficiencies of the UN internal justice system are
presented at the end of the Inept Administration of Justice System
subsection preceding, and more will continue to be
added.]
In
their operations the JABs present no recognizable judicial process, nor
indeed any open discourse and deliberation on the appeal that is
underway. As one article
summarized it: "In its operations
the Joint Appeals Board deals almost solely with written evidence
… rarely permitting
oral testimony or the summoning of witnesses. … In fact, those familiar with its modus operandi, say [JAB] hearings
constitute a shuffling of paperwork -- almost exclusively a perusal of
written documents." Adversarial
proceedings are infrequent, as are opportunities for the aggrieved
employee to have his or her 'day in court.'" Jay Axelbank,
"Administrative injustice: Win case but lose job", UN Special
(Geneva), January 1994, p. 30.
In
practice, an appellant can spend a year preparing his appeal and haggling
with "the Respondent". Then a
JAB panel, in closed session, spends perhaps four hours on it. Months later, the appellant
usually learns, in a cryptic judgement, that it was feebly or in part
accepted, or rejected, and that he or she can begin a second multi-year
journey to the UNAT. The
operations of the internal justice system overall are also very
opaque. As observed in
1994: "Attempts by the
U.N. Staff Report to obtain any summaries or statistics from the
Administration on JAB recommendations proved unsuccessful, since
management has not seen fit to release … reports … on the nature and
disposition of cases.
The atmosphere of
virtual secrecy and lack of publicly
available data appears to exacerbate the problem by spawning rumours and
allegations [--] sometimes admittedly unsubstantiated allegations -- and
contributing to the Kafkaesque climate. But, most significantly, it
complicates attempts to make completely objective judgments about
how justice is, and is seen to be administered in the United
Nations." Jay Axelbank, "Administrative
injustice: Win case but lose job", UN Special (Geneva), January 1994, p. 30.
[excerpted from U.
N. Staff Report (New York).] Another
staff article agreed that criticism must be leveled at outrageous
attitudes, inappropriate review procedures, and also at the severely
curtailed means of redress available to UNAT. But it argued also that the
problem should be handled by seeking reasoned action (and especially that
the few remaining volunteer staff members on the panels [some are chosen
by the staff, others by "the Administration] should not be blamed. It also
emphasized that the staff member must make a good case and must argue it
properly. These points are
all valid, but the author then admitted in a succinct summary that: " … it must be
recognized that appellants may have to face various problems over and
above the traps which they have perhaps put under their own feet: an obstructive respondent, an
incompetent or cowardly appeal board, or again, an obstinate executive
head." Andre Heitz, OMPI "Let's do
justice to justice", UN Special (Geneva), September 1994,
pp. 32-34.
Another
staff article observed that the Panel of Counsel, composed of volunteers
who can aid staff in their appeals, must also struggle to fulfil its
functions.
"Its members - who
may or may not be attorneys - or other staff members willing to volunteer
their assistance … are
seriously compromised [in their work]. … The Panel of Counsel deals with 300 to 500 personnel matters or
cases a year with limited staff and meager resources. The coordinator's office has
insufficient staff, office space, computers and capacity for record
keeping. To make matters
worse, the Staff Council has asserted that some supervisors only
reluctantly recognize the official nature of the duties of the Panel of
Counsel and hamper its work." Jay Axelbank, "Administrative
injustice: Win case: Win $1 in damages", UN Special (Geneva), February 1994, p. 30-31 [30.]
[excerpted from U. N. Staff Report (New York) , December 1993.]
The
appeals process and its outcomes are indeed daunting, and often only the
most stubborn attempt the laborious journey. "One long-time member
of the Panel of Counsel told UN Staff Report that when she consults
with employees who are about to embark on the appeals process 'right up
front' … [she] virtually
tells them 'Abandon hope, all ye who enter here'. [She says] 'I would be less than
honest if I did otherwise.' [There is also] the
"fatal flaw" in the process … [Even when the staff
are] … trying to adjudicate
a grievance, particularly non-renewal of fixed-term appointments, [they]
can win a binding decision in their favour by the Administrative Tribunal
and still not get rehired or regain their [prior] jobs … Instead, they are
awarded minimal or even token compensation." Jay Axelbank, "Administrative
injustice: Win case but lose job", UN Special (Geneva), January 1994, p. 31.
[Excerpted from U.
N. Staff Report (New York).] The
appeals process is not only slow, ineffective, and inherently limited as a
"judicial" process. It is
also costly.
"Each case that is
not resolved through informal mediation and must be appealed to the [JAB]
and the {UNAT], costs thousands of dollars. One estimate is $50,000 per case
before an appeals body; even if it were a half or a third of that, such a
cost would still be unacceptable." Jay Axelbank, "Administrative
injustice: Win case: Win $1 in damages", UN Special (Geneva), February 1994, p. 30-31 [31.] [excerpted from
U. N. Staff Report (New York) , December 1993.] Most
significantly, after all the above disorder and oddities, the report of
the JAB is a mere advisory paper for the Secretary-General to endorse or
reject. The staff appellant
only (and often considerably) later receives a copy of the JAB report
(including, for the first time, a look at "the facts" as determined by the
JAB Secretariat) with the Secretary-General's decision
thereon. The 1974 FICSA report
provided a very incisive analysis of key deficiencies in the appeals
system [which remains fully applicable three decades later]. It cited inter alia
the: "Appellant as Trouble-maker:
Challenging an administrative decision, no matter what, by and large, is
still regarded with suspicion … Weakness of Internal Boards: Probably [their] weakest point is
that an executive head sits as prosecutor and judge … [particularly] in smaller-sized
duty stations … Pernicious doctrine: … after all
evidence is presented and weighed and abuse or misuse of power is proved
-- and thus the administrative decision is not, as frequently claimed, "in
the best interest of the organization" -- then it is indefensible to
deprive an appellant of remedy sought. … Either/Or Judgement: When
administrators have been found guilty … [of misconduct] tribunals, without notable
exception, give an executive head a choice -- the remedy sought …(say
reinstatement) or compensation … appellants … may win their cases, but
still lose their jobs. Just Handouts or Just
Compensation: The tribunal's known practice of mendacity in cash
settlements … makes it easier for an administration to pay. But for most administrations, the
choice is not saving money, but saving face. The choice is made easier because
the 'fine' that is paid comes
out of the pocket of member governments … How are these expenses shown on
an organization's books?" "Appeals procedures for
international civil servants, Federation of Civil Servants Associations
(FICSA), FICSA Studies and Policies NO. 2, of 1974, as quoted and discussed in Ozorio, Peter,
"Tribunal trouble: Legal rights revisited", UN Special, October
1992, pp. 25-26.
The
General Assembly tried in the mid-1980s to reform the internal justice
system, but encountered only foot-dragging and disputes. An opening staff salvo is typical
of the hopes that staff have maintained for decades to reform the system
and match its judicial work to standards found in the rest of the
world: "… just over six years ago [i.e., in 1978].… a former justice
of the [International Court of Justice reviewed a staff dispute with
management] … the material
which he collected has never [appeared]. I would like to quote [several
passages therefrom] …. 'The problems … have accumulated
over a long period owing to the failure and inability of the existing
machinery to find and implement solutions to staff
grievances.' ' …complaints pile up, and staff
members become increasingly bitter and resentful. …. a formal grievance
procedure … should be speedy,
… encourage settlement .. at the working level, [have clear and publicized
procedures] … be a process of negotiation … [with] Any bargain … or
agreement …. equally binding …. …. dealing on a basis of equality
with staff representatives will [be difficult for ] a number of
[management] officials
….
Nevertheless, thousands of
managements and unions have gone this road before us, many of them in the
public service sector. We
have their experience …. to draw on. … How long are we going to pretend
that the United Nations is so different from the rest of the world that we
cannot learn and profit from others'
experience?" "Bill Bailey" [a
"senior official at Headquarters], referring to a 1978 expert
opinion of the appeals system, in
"Appeals or redress of grievances?", Secretariat News [New
York], November 1984, pp. 8-9. Not
surprisingly, even determined staff members usually lose in this onerous
process, and the "winners" may well get negligible or no damages from the
JAB or the UNAT for a career seriously or fatally damaged. The success
rate for staff members who request the essential and initial goal -- reversal of an administrative
decision -- is essentially zero. Axelbank, Jay, "Win case but lose
job", UN Special,
January 1994, pp. 30-31 and "Win case; win $1 in damages",
February 1994, pp. 30-31, Andre Heitz, "Lets do justice to
justice", , UN Special (Geneva), September 1994, pp. 32-33,
35.
Further,
a systematic analysis in Geneva by M. L. Fayache of available judgements
in 1999 (apparently the only one ever made there) showed that a resounding
97 percent of JAB cases were decided against the staff. JAB officials in Geneva
asserted that this sorry record of near-zero success was improving and
that their work was very professional, but there is much evidence to the
contrary. In New York, the
JAB appeal success rate had been closer to 50-50. However, a survey there showed
that, at the next step, the Administration (the "Secretary-General")
subsequently and discouragingly approves 99.5% of the JAB judgements made
against staff members, but
only 30% of those decided in favour of the staff.)
M. L. Fayache, "Defense des droits
du personnel," UN Special (Geneva), Fevrier 1999, pp.
23-25,
Souria, Robert, "The truth about
the Geneva Joint Appeals Board,"
UN Special, (Geneva),
March 2000,
pp.15-16,
Fayache, M. L., "Le systeme des
castes se porte bien a l'ONU," UN Special, (Geneva), January 2000,
pp. 12-13. "Frivolous defense," UN Special, February 2000,
pp, 25-26, and "The staff needs the statutory
'administrative review," UN Special, (Geneva), February 2000, pp. 28-29,
and . "Interview with the President of
the Staff Council", UN Staff Report (New York), November 1996, p. 3.
One final article from
1999 suggests the ugly realities for "the only means staff have to hold
managers accountable." In
1999 M. L. Fayache analyzed a Geneva case of non-renewal of a fixed-term
contract in which the main element was the lack of valid performance
evaluation reports. The case was lost, but Fayache called to the attention
of the Geneva JAB not only the need for training for JAB members in UN
administrative law exhibited by the case, but a seemingly total
unawareness of UNAT judgments, and therefore precedents, dealing with the
PER process. He then listed UNAT judgments dealing with PER, including
inter alia: "138 (PEYNADO): ' … 'the right of rebuttal of any
part of a periodical report and
the procedure prescribed for handling such rebuttals afford a
valuable protection to the staff member against prejudicial assessment
(VI).' 200 (FRACYON): ' … the periodic report … was prepared after the decision
not to renew the Applicant's appointment … The Tribunal orders … that the
said periodic report be excluded from the Applicant's status file
(XXI).' 225 (SANDYS): ' … for a supervisor to make
periodic reports which describe a staff member's performance in
unjustifiably favorable terms, which are subsequently retracted, is … reprehensible … [this action] displays a measure of insincerity
on the part of the Principal Officer which, if tolerated by the
Administration, would undermine the very purpose of the … periodic reports
(IV).' 362 (de FRANCHIS): ' … the fair
and impartial assessment of performance must be considered an essential
right of all staff members and … consequently, the Administration
should not spare any means to secure an unimpeachable report. … [in this
case] to have the Applicant's performance assessed by an officer with whom
there existed such an extremely strained relationship seriously affected
the Applicant's right to have his performance assessed in an impartial way
(VIII).' 457
(ANDERSON):
'The Tribunal attaches great importance to the integrity of the PER
system and in particular its candour and honesty … (III).' 569 (ZOUARI): '… The
rebuttal panel … concluded … that the rules governing PER's had not been
fully observed.
The Administration took no action regarding this report. The Tribunal
finds that the Applicant has suffered considerably as a consequence of
numerous irregularities (VIII. )' 772 (ZEID): 'The
performance review process was tainted b y the failure to identify those
persons consulted. In this respect the Applicant has been
denied due process.' 800 (MERA
RODRIGUEZ):
'As a matter of equal treatment for all staff, an evaluation system
such as the PER is efficient only when everyone complies with its
procedures.
In terms of accountability, and to avoid any favouritism or
arbitrariness, management has the duty to ensure that no decision, such
as . .
. is
taken without the assessment of a staff member's performance covering
recent years (page 8).' [This statement is
from a memorandum from no less than USG Joseph Connor (then the UN's top
manager) himself.] 826 (BELIAYEV):
'Because the evaluation of the Applicant's performance was a factor, it is
unacceptable that the decision as to her future was taken before the
rebuttal procedure was finalized. The Tribunal does not accept as
reasonable DPI's position that the completion of the rebuttal procedure
was not material to its decision not to renew the applicant's
appointment.
To accept this proposition would be to render the Organization's
entire rebuttal procedure redundant.'" M. L. Fayache, "List of UNAT cases dealing with PER: To the Presiding Officer of the Joint Appeals Board," UN Special (Geneva), February 1999, pp. 19-20. [Note: Mr. Fayache added the following postscript: "Since I have one
case pending before the Geneva JAB, and since one of my main complaints is
that I am without valid PER's since 1992, I am of course extremely
concerned about the obvious unfamiliarity of the Geneva JAB and its
reluctance to refer to the many UNAT judgments dealing with
PER's." The above list of judgments is cited here, at some
length, because it shows just how defective the JAB panel decisions can be
over a period of decades on an issue -- proper performance appraisals --
that is absolutely central to UN staff members' career well-being and
advancement, and on which the principles and precedents of due process
have been repeated endlessly. There are four aspects of the above
parade of miscarriages of justice. -- First, it shows the perverse ways in which abusive
UN "managers" can routinely and consistently subvert the careers of their
staff, with no negative impact for them (no manager was ever associated
with the above decisions, let alone being reprimanded in any way.) -- Second, these cases are only the "tip of the
iceberg":
those that reached the UNAT after a procedural journey of several
years.
How many hundreds, or quite possibly thousands, of other such
shabby appraisals have been filed and never corrected in the past few
decades, to the great detriment of staff morale and career hopes? -- Third, in light of OHRM's weak monitoring
processes (see the preceding subsection on that topic) and the usual top
management "self-policing" of this process, one wonders how many hundreds
of such improper and abusive PAS's are still being prepared every
year.
-- Fourth, and worst of all, it seems that
JAB and UNAT cases involving such violations of a very clear Staff Rule
(101.3, with a lengthy added commentary on "integrity" in the Code of
Conduct), continue on today, and the applicants continue to lose their JAB
cases just as did those in the above list. "Status, basic rights and
duties of United Nations staff members", ST/SGB/1998/19 of 10 December 1998, pages 33-34. THE SECOND INTERNAL JUSTICE PROCESS, THE JOINT
DISCIPLINARY COMMITTEE (JDCs) is by far the most mysterious. While the JAB's
(however unfriendly they are in practice) are considered "the staff's"
process, the JDCs, which advise the Secretary-General in cases of staff
charged with misconduct, are clearly "management's" process. Little is
reported, or even known, about actual JDC functioning and results. The JDC's purport to follow due process, but in fact
-- unlike the JABs -- they have no specific
and detailed procedures. Nevertheless, they can and do recommend
various penalties, ranging from written censure by the Secretary-General
all the way up to summary dismissal. United Nations
Staff Rules", Secretary-General's Bulletin ST/SGB/2002/1 of 1 January
2002,
Staff Rules 110.4 and 110.5, and esp. Rule 110.7 (c).
The importance and seriousness of JDC proceedings
seems now to be greatly increasing. In early 2000 the Secretary-General presented the
next round of reports on Secretariat progress in the midst of a growing
mass of his own management reform activities. In a first
report, requested specifically by the General Assembly, he stated that,
with regard to management irregularities causing financial loss: "
… the Secretary-General is in the process of
establishing procedures to
[allow preliminary investigation of allegations of 'gross negligence' by
heads of departments/offices or [the OIOS], [followed up where
necessary] …
under revised Joint Disciplinary Committee procedures … as part of his programme
for management reform … measures to establish a more effective
accountability system … such as [a] programme management plan, [an]
Accountability Panel and monitoring of delegated authority … . The
Secretary-General believes that a comprehensive approach to
accountability, backed up by all these measures, will contribute significantly to
detecting and preventing management irregularities." "Follow-up report
on management irregularities causing financial losses to the Organization:
Report of the Secretary-General", UN document A/54/793 of 13 March 2000, para. 25. [emphasis added]
The report went on to say that this complex and
sensitive new investigative task was not a problem for these managers,
because they had "been conducting preliminary
investigations in connection with allegations of misconduct, [so] they are
familiar with the methods of conducting such investigations." He also
stated that, after the preliminary investigation is completed, the
Secretary-General may decide to refer the case to the Joint
Disciplinary Committee for a recommendation. "In
this regard, … The
relevant staff rules will be amended to provide for an expansion of the
mandate of the JDC … to consider gross negligence and to make
recommendations for recovery under staff rule 112.3; An experienced
legal officer will participate in the deliberations of the expanded [JDC]
on an ex officio basis to guide the members in the proceedings when
considering such cases." Follow-up report on management irregularities causing financial losses to the Organization," UN document A/54/793 of 13 March 2000., paras. 25, and 12-14. [emphasis added.] [Note: an Annex to this report, inter alia, cited the staff regulation sternly requiring staff to cooperate fully with all such investigations by all "authorized" UN officials: that is, it firmly specified obligations, but granted staff no specific rights.]
This upgraded JDC role truly seems to be a judicial
"witches brew." For several years now, amateur Secretariat
manager/investigators have been allowed to develop a case, which the
Secretary-General may send to the JDC's, which will have an expanded
mandate (but, as before, no detailed procedures, for this or lesser
matters), to consider the complex matters of gross negligence and recovery
recommendations for the Secretary-General. This is very serious business. Ah, but it is
really "no problem", because the struggling group assembled for any such
case will have an "experienced legal officer" to "guide" them in such
cases.
But, where will be guide them? The new hidden "investigations" are therefore a very
dangerous, and thus far ignored, element of the UN internal justice
system. They not only "shield managers from accountability" (the staff
perception that the Secretary-General himself has already noted), but
become a powerful weapon against staff, leading even to (or threatening,
which may be quite sufficient) summary dismissal or even possible criminal
proceedings against staff in national courts. At present, UN staff "caught" in the new
investigations process can only submit their plight, personal reputations,
and often their careers, to judgment by a panel of part-time, untrained,
amateur staff volunteers (no matter how highly motivated) of the JAB or
the JDC. The Secretary-General has talked of reforming and educating the
people who participate in the JDC (but not Administration staff) to make
them capable of handling such manners, i.e., he admits that presently they
are not. Meanwhile, when the dangers and shaky due process and individual
rights aspects of such investigations have been presented to UN legal
officials in JAB and UNAT cases, they often simply ignore the issues (and
the General Assembly's multiple insistence on due process and staff rights
in such processes) entirely. THE THIRD INTERNAL JUSTICE PROCESS, THE UNITED
NATIONS ADMINISTRATIVE TRIBUNAL (UNAT) operates much like the JAB's (and presumably the
JDC's). The UNAT rarely allows open hearings, discovery,
witnesses or cross-examination, and it frequently decides against the
staff member or provides only a very cursory review of the facts, with
little attention to legal issues or precedents involved, and an extremely
concise summary of its own deliberations (as little as 2-3 pages, double
spaced). Even worse, when the UNAT becomes involved, it seems
to suffer (and compound) the same carelessness and weaknesses of the JABs
and JDCs.
To begin with, it seems to rely almost totally on the original
version of the case developed by the JAB of JDC secretariats, and heartily
endorsed by the Office of Legal Affairs, as opposed to the detailed facts
presented by the Appellant. It may also choose to consider only a
minor aspect of the case; to decide against the staff member even though
it acknowledges multiple management irregularities committed; or simply
and sweepingly to reject the application "in its entirety", no matter how
carefully the staff member and lawyer (who is permitted at this stage)
have detailed, documented, and prepared it. Roy, Mark A., "For
a separate office for administration of justice in the United Nations", UN Staff Report, July
1993, pp. 2-3, Axelbank, Jay, "
Administrative injustice at the UN", UN
Special, December 1993, p.14, and
Samson, Klaus, "The
protection of the interests of … staff … in … reorganization or reduction", UN Special, January
2000, pp.18-21.
Furthermore, because the entire JAB/UNAT process may
drag on for up to four years, the judgement once reached seems like
ancient history, as events have moved far beyond the original decision
taken and many of the staff, managers, and others involved have long since
moved on to other jobs, or distant locations, or retirement. In the late 1990s the UNAT received some "new blood"
for several years, which provided more judgements favoring the staff and
some relatively significant damage awards, moving from about $10,000 on up
into the $ 200,000 category. However, the UNAT is weak. It can
almost never reverse an administrative decision taken. It cannot hold a
manager responsible, although several UNAT judgements in the late 1990s
expressed concern that abusive managers seemed never to be admonished or
sanctioned in any way, and urged (with no apparent effect) that the
Secretary-General change this situation. In effect, and at present, the UNAT judgements appear
quite random and erratic, and the staff applicant may receive a large cash
payment, a token payment, or nothing at all, with no clear-cut reasoning
provided. Most damaging, the managers whose decisions generated the cases
are never affected in any way even when the staff member "wins". The Secretary-General noted in 2000 that the seven
UNAT judges handle only about 30 cases a year, or about four per judge,
working together in groups of three. Most of its judgements are
largely pro forma, devoting perhaps a dozen pages to restating the facts already
determined by the JAB panels and the arguments of the two sides, followed
by only two or three pages of reasoning to justify the Tribunal's (often
narrowly restricted) judgement. Far from applying judicial rigor¸ the UNAT
judgements sometimes seem to indicate that the judges hardly even read the
case put before them, and rely on sweeping conclusions such as the favored
"rejects the application in its entirety." "Human resources management
reform: Report of the Secretary-General", UN document A/53/414 of 13 October 1998, Annex V, para. 2. A staff article assessing the work of the UNAT and
its binding decisions observed that: " …
The atmosphere in which the [UNAT] operates gives many Secretariat
employees the impression that it is reluctant to challenge any decisions
taken by higher levels of management. 'One gets the feeling', said a UN
employee, 'that the Tribunal is really part of the Administration'. According to [a Staff Council resolution], 'in recent
years there has been a growing awareness of the numerous deficiencies of
most UNAT judgments by most members of the Committee on Applications for
Review of [UNAT] judgements. The Committee …
is empowered to forward appeals to the International Court of Justice for
a non-binding advisory opinion …
But despite its frequent criticisms of the quality of justice dispensed by
the [UNAT], it has forwarded three cases out of approximately 80 appeals
in four decades! This has led to demands in many
quarters for changing or abolishing the Committee on
Applications." Jay Axelbank,
"Administrative injustice: Win case but lose job", UN Special (Geneva), January 1994, p. 31.
Among the miscarriages of justice found in UNAT
decisions, perhaps the most egregious one concerns a disciplinary action
mentioned earlier, when the most severe UN sanction -- summary dismissal
-- was imposed upon a staff member for non-official use of the office
photocopy machine. Of course, such an "offense" would put
approximately one billion people worldwide out on the street, if it were
enforced in a real court of law. A staff article later learned that: "The Joint
Disciplinary Committee found that due process had been denied [the staff
member,] that the facts in the case had not been adequately established,
and that the charge, if proved, did not warrant summary dismissal. It
recommended reinstatement with three months net base pay damages or, in
lieu of rehiring, that he be given two years net base pay. The Administrative Tribunal flatly rejected the
employee's appeal." "Justice
miscarries", UN Special (Geneva), January 1994, p. 31.
[Note: in this case
it was not even the "staff's group", the JAB, but "management's group",
the JDC, that pointed out this misscarriage of justice, but to no effect
on the learned deliberations of the UNAT judges.] The UNAT judges themselves are never held
accountable.
The General Assembly recently lauded their performance, but without
providing any analysis whatsoever of their performance, cost, output, or
efficiency.
Second, the UNAT does no summary or public reporting at all. Individual
cases are "published" but are hard to get, and they are certainly not on a
web site, systematically analysed, or publicized (as the Secretary-General
in 2000 had said it would be desirable to finally do, but only for
managers).
"Review of the
Statute of the United Nations Administrative Tribunal", General Assembly
resolution 55/159 of 31 January 2001,
preambular para. 1, and "Human resources
management reform: Report of the Secretary-General", A/53/414 of 13
October 1998, Annex V, para. 5. [Note: However, in
October 2000 the ACABQ obtained some and published some welcome basic
information on UNAT cases, judgments, and payments made to successful
Applicants during the late 1990s, in "Administration of
justice in the United Nations: Report of the [ACABQ]," UN document
A/55/514 of 23 October 2000 .
Finally, the UNAT has little
impact.
Unlike any real world court, it almost never rights a wrong (in
this case reversing an administrative decision, no matter how unjust or
dubious).
Second, it can impose no sanctions on the wrongdoers, even where
their malfeasance is clearly established. Indeed, despite some protestations to the
Secretary-General in a few cases in the late 1990s, the UNAT never even
bothers to mention or identify the UN managers involved in a case, nor can
it even propose to the Secretary-General that he take disciplinary action
or sanctions of any kind. In fact, the UNAT functions merely like a slot
machine in a gambling casino. The staff Applicants, after a four- or
five-year wait, get to "pull the handle", watch the tumblers spin, and see
(apparently quite randomly) whether they will win a payoff of $100,000 or
more, perhaps $20,000, or in many cases (and as so often in a casino)
nothing at all. Thus, the UNAT process, like that of the JABs and
JDCs,
seems enormously costly, not only in terms of years passing by as
cases drag along, or of administrative costs and paperwork burdens, but --
worst of all, and as the Secretary-General admits -- a system
that serves neither the interests of justice nor of staff, nor of
management (although staff would disagree that managers are disadvantaged,
as clearly shown by the Secretary-General's admission that staff perceive
the system as shielding managers from accountability for their
decisions.)
The JIU study of the internal justice system to the
General Assembly in 2000 confirmed that "on numerous occasions" UN
Secretariat officials had not been held accountable by the UNAT for
wrongful or grossly negligent decisions. The Inspectors, in a rather
hidden proposal that could be a powerful accountability lever in a proper
UN internal justice system -- if it were ever accepted and implemented as
it definitely should be -- "underlined" that "whenever the actions of Secretariat officials are
found by the appellate bodies to be wrongful or grossly negligent, these
officials should be held accountable as appropriate for any financial loss
suffered by the Organization as a direct result of those actions." "Administration of
justice in the United Nations", JIU report 2000/1 of August 2000 (and UN
document A/55/57), para. 173 on "Full accountability of Secretariat
officials".
The JIU, however, did not comment on the troubling
realities involved, namely that: ?
any case against managers would take years to pass
through the JAB/UNAT process; ?
it would very probably be resolved in the managers'
favor; ?
the UNAT cannot impose any sanctions; ?
this function would be left to the Secretary-General,
who never apparently considers any sanction actions at all; and ?
by the time the sanctions question was resolved all
parties (except the appellant) would long since have disappeared. Instead, to get real insight into the problems, one
has to go far back to the excellent FICSA analysis of the grave internal
justice system flaws of 1974. In fact, the managers whose decisions
generated the cases are never affected in any way, even when the staff
member "wins".
Instead, any payout comes out of the pockets of the world's
taxpayers who fund the UN anyway, leaving scarcely any trace on the
justice system or the managers themselves. "Appeals procedures
for international civil servants, Federation of Civil Servants
Associations (FICSA), FICSA Studies and Policies NO. 2, of 1974, as quoted and discussed in Ozorio, Peter, "Tribunal
trouble: Legal rights revisited", UN Special,
October 1992, pp. 25-26.
Even worse, the UNAT seems consistently oblivious to
the expanded rules of staff conduct, especially as they involve the
General Assembly's requirements for management accountability and the
integrity of all concerned. Without any sanctions and corrective action, or even
public identification of the manager involved, and no right whatsoever to
go to any higher (outside) court, the JAB/UNAT
system quite simply and sadly has no deterrent or redress value. Quite the
contrary, it serves to discourage staff from going through the long
internal legal process in the small hope of obtaining a very uncertain and
often small cash reward, and to embolden managers who realize that they
will suffer no negative personal consequences for abusive
decisions which they take. THE FOURTH INTERNAL JUSTICE
PROCESS might be considered to be the Panels on
Discrimination and Other Grievances. However, after earlier successes they
fell into disuse during the 1990s, and in 2002 were replaced by a new,
small Ombudsman office located in the Office of the
Secretary-General. Their decline seems mostly due to
the fact that their function was informal and conciliatory, but especially
because, as the Secretary-General bluntly presented it in a 2000
report, of their volunteer members' inexperience, and because "their
findings are often not substantiated by evidence and managers thus resist
cooperating with them." "Human resources
management reform: Report of the Secretary-General", A/55/253, 1 August 2000, Annex V, para. 3.
[emphasis added] [Note: the message
of the last phrase, of course, is that the managers and
Administration representatives -- equally as untrained in the law as
are staff panels -- can nevertheless recognize flawed
evidence when they see it, i.e., seize a major but dubious excuse to
negate the entire process.]
In fact, the fourth process was one that never came
to be, partly because of an apparent breakdown of efforts in the General
Assembly and in a special expert group. In its resolution 48/218 A of
December 1993, which established the system of management accountability,
the General Assembly also stated that: "III. …
Determined to
address alleged cases of fraud in the United Nations in an impartial
manner, in accordance with due process of law and full respect for the
rights of each individual … 2. Also decides to this end to establish
an ad hoc
…
working group of experts …
to report to the General Assembly [in 1994]." "Review of the
administrative and financial functioning of the United Nations", General
Assembly resolution 48/218 A, 23 December
1993, sections II. And III. The General Assembly had already called in a 1992
resolution for the Secretary-General to make proposals on establishing
mechanisms to recover misappropriated funds, and to seek criminal
prosecution of those who committed fraud against the UN. His report
cited the quite limited practices for fund recovery and for criminal
action.
He then proposed that the statute of the UNAT might be amended to
give it jurisdiction to judge claims of embezzlement against staff members
and seek recovery. However, this had already been
discussed, and rejected, in 1978 and again in 1979, because of the
possibility of unifying the UNAT and the ILOAT [now up for (tepid?) debate
again] and because it would not be reasonable to create a centralized
criminal court for this limited UN function. "Recovery of
misappropriated funds from staff members and former staff members: Report
of the Secretary-General", UN document A/48/572 of 9 November 1993., paras. 1-3, 25-35.
Meanwhile 25 expert members of the Assembly's
intergovernmental working group considered establishing a new
jurisdictional and procedural mechanism or extending the mandates and
improving the function of the existing ones. The
Secretariat provided a background report on the existing general and legal
framework, standards of conduct, prevention and detection of misconduct,
disciplinary mechanisms, the UNAT, and fund recovery. The report
repeated the standard UN assertion that: It is clear …
that staff members dissatisfied with any administrative
decision…
including …
to carry out a recovery action or to impose a disciplinary measure, have
the opportunity to appeal to a judicial body, which will impartially
consider such appeals." "Alleged cases of
fraud in the UN: Study of the possibility of the establishment of a new
jurisdictional and procedural mechanism or of the extension of mandates
and improvement of existing jurisdictional and procedural mechamisms;
Overview by the Secretariat", UN document A/AC.243/1994/L.3 of 4 April 1994, esp. para. 49.
In September 1994 the working group submitted its
report. Unfortunately, it was a mishmash of ideas and proposals, all left
hanging, with a bow toward the Secretariat's intentions to enhance
existing mechanisms as well as the work of the new OIOS. The French expert
submitted a detailed proposal, which was discussed and left for "further
study", which apparently never occurred. The group also noted the Secretariat's assurances
that there was not much fraud (contrary to the Thornburgh report
concerns), and pondered some revisions to the financial rules concerning
financial integrity of staff, and training for financial personnel. It
noted possibilities for a new mechanism to adjudicate complex cases of
financial irregularity and fraud which the General Assembly might wish to
consider, or amending the UNAT Statute to allow it to handle such cases,
strengthening of the JDC's, UN work with national courts on fraud cases,
and -- the only interesting and new idea -- monitoring a new UNDP Personal
Responsibility and Financial Liability initiative just getting underway.
It then terminated its work. "Jurisdictional and
procedural mechanism for the proper management of resources and funds of
the United Nations: Report of the Ad Hoc Intergovernmental Working Group
of Experts established pursuant to General Assembly resolution 48/218 A",
UN document A/49/418 of 22 September
1994.
Any action was thus turned over to the Secretariat,
and in late 1994 Secretary-General Butros-Ghali issued an official
bulletin, ST/SGB/273. It emphasized "strict regard for fairness and due
process" for all staff involved in investigations, and "disciplinary
proceedings" for any staff member (i. e., manager) who retaliates against
another staff member reporting in good faith to, or cooperating with, the
OIOS. "Establishment of the
Office of Internal Oversight Services", Secretary-General's Bulletin
ST/SGB/273 of 7 September 1994.
With that, the idea of a serious and competent court
to deal with fraud and misconduct in the UN was buried. All such
cases would henceforth be dumped into the JAB, JDC and UNAT system, which
was and still is unprepared to recognize and properly deal with them. As already discussed under the Inept "Administration of Justice"
System and elsewhere in this subsection,
it was only gradually in 2000 and in 2002 that the Secretary-General,
pressured by the General Assembly, began the very modest current training
efforts to better equip the JAB's and JDC's for more serious tasks and, or
so he stated, to make managers directly involved in defending their
contested decisions before these bodies. Further, he was “considering setting
up” transparent accountability mechanisms for managers and staff, to be
“attained over the next three to five years” i.e., between 2001 and
2003. ""Human resources
management reform: Report of the Secretary-General", A/53/414 of 13
October 1998, paras. 5-9.
Subsequently, JAB, JDC, and UNAT cases continue on
largely as before, with managers scarcely involved and still protected by
"the Secretary-General" and the all-encompassing behemoth known as "the
Administration." The General Assembly, to its credit, has pressed the
UN Secretariat intensively ever since the late 1980s to combat corruption,
establish an investigations unit, hold managers accountable, and sanction
them for serious malfeasance, including criminal cases in national courts
if necessary. However, there is no evidence that these revised UN
rules (and especially any hint of their commentary measures) are actually
being applied and enforced in daily UN operations. Instead of requiring
management accountability, the Secretariat is undermining it by
eliminating countervailing staff rights and confronting UN staff instead
with much "are obliged to" instead of "have the right to.") The staff have nowhere to turn other than the feeble
old internal justice system to seek remedies that would deal objectively,
transparently, and properly with the requirements, abuses, and violations
of significant and complex new areas of UN conduct (and misconduct). In
particular, there is a need for effective measures and processes to deal
with issues of management accountability, staff misconduct, investigations
within the Secretariat, and issues of harassment, all of which have not
yet been established. The UN "rules of the game" have changed, but the UN
administration of justice system has not. This Secretariat failure has created a very dangerous
void. For instance, in a world of "full disclosure", the 1998 Secretariat
staff rule
states very firmly and impressively that "Any form or
discrimination or harassment, including sexual or gender harassment, as
well as physical or verbal abuse at the workplace …is prohibited." Yet,
real full disclosure, would require that this firm prohibition be
accompanied by a second sentence stating that "However, there are no
serious processes to deal with such acts,
and even if there were they would never be prosecuted, or the staff member
vindicated, if they were committed by a manager." Staff rule 101.2
(d), "Status, basic
rights and duties of United Nations staff members", ST/SGB/2002/13 of 1 November 2002
Regrettably, however, all the
elements of the UN internal justice system -- the JAB and
JDC secretariats and panels, the personnel departments, the Office of
Legislative Affairs in New York, and the UN Administrative Tribunal itself
-- continue to conduct their "legal" business in 2004 as if these updated
regulations and rules of staff conduct do not exist. At least six fundamental loopholes exist which prevent
effective internal justice as part of an overall accountability system
within the UN, as discussed under the next topic. All of them now heavily
favor the "freedom" -- not the accountability -- of UN managers, to the
great detriment of UN staff. |
|||
