The Secretary-General relentlessly pursues his attempts to circumvent the proper Administration of Justice by forcing his proposals to amend the Statute of the Dispute Tribunal.
A few days ago, the latest report of the Secretary-General A/78/156 on the Administration of Justice at the United Nations was released.
Besides the numerous pages of redundant data on the number of cases submitted and adjudicated, data useless to member states, the Secretary-General, and his counsels launched their relentless attacks against the United Nations Dispute Tribunal.
They accused the UNDT of failing to respect the role of the Secretary-General and his authority to impose disciplinary measures on staff members who engage in misconduct.
The Secretary-General further accused the Tribunal of failing to respect the operational independent role of the Office of Internal Oversight Services (OIOS).
According to the Secretary-General, his proposed amendment is intended solely to ensure that the legal framework established by the General Assembly is respected and that the Dispute Tribunal conducts a judicial review of the disciplinary measure and gives evidentiary weight to evidence collected by the Office of Internal Oversight Services.
Reading through the Secretary-General’s report, member states must remember the number of staff representing them who fell prey to the Secretary-General’s injustices throughout the years.
Wrongdoing, retaliation, oppression, discrimination, malicious allegations, unlawful terminations, and dismissals that neither the system of Administration of Justice could remedy, nor the successive Secretary-Generals had an interest in correcting.
You can’t make them “Whole” again, Mr. Secretary-General, can you?
Image courtesy of Saatchi.
Not only you are unable to do so, but you are reluctant to do so.
Not only are you reluctant to do so, but you’re determined to eviscerate any notion left remotely associated with the Administration of Justice for staff.
In your latest report, you claim that your sole intent is to ensure that the legal framework established by the General Assembly is respected.
As a reminder, Mr. Secretary-General GA Resolution A/RES/63/253* adopted by member states on 24 December 2008 has called explicitly for a transparent new system of Administration of justice consistent with the principles of the rule of law and “due process to ensure respect for the rights and obligations of staff members and the accountability of managers and staff members alike.”
So, we would like to ask you, Mr. Secretary-General, why is it then when a staff member has been wrongly separated, through no fault of their own but rather as a result of managerial abuse and retaliation, your decision was systematically taken to pay them compensation instead of considering their reintegration?
We ask you, Mr. Secretary-General, why is it so, even when the Tribunal found them profoundly wronged, retaliated against, and never afforded due process?
We ask you, Mr. Secretary-General, why is it so, even when the Tribunal ruled that your representatives and counsels have cast untruthful allegations against them and that OIOS had consistently lied throughout their reports without adducing evidence?
We want to ask you, Mr. Secretary-General, why is it that your representatives and managers can easily have their mistakes and misdeeds buried with the careers of those staff members who have been ruined thereby?
We ask you, Mr. Secretary-General, why do you not allow the Tribunal to redress the injustices suffered by the staff?
We ask you, Mr. Secretary-General, why is it that there has yet to be a record of any action that you have ever taken after a referral for accountability made by the Tribunal?
Not only have you never held any of your managers accountable for their abuse, retaliation, and corruption, but you are now intent on reducing the role and judicial authority of the UN Tribunal to nil.
Your proposal to amend article 9 (4) of the Statute of the Dispute Tribunal is subversive and aimed at annihilating any due process left to staff members during legal proceedings.
The UNDT has rejected your proposal explicitly and repeatedly, but you choose conveniently to keep relegating such criticism to buried annexes at the deep end of your reports to deter member states’ attention from them.
Here they are, harsh words, reproduced below:
“The amendment proposed by the Secretary-General (the proposal) is unacceptable in its broad claim to administrative discretion.
It subverts the established basic premises of fairness while radically limiting the role of the Dispute Tribunal in the examination of the impugned sanctioning decision.
Accepting this amendment would go beyond the practice that had been in place before the new line of jurisprudence and would reduce the Dispute Tribunal to a façade of an independent court.
The proposal states that the Dispute Tribunal only reviews the factual foundation of the disciplinary decision on the basis of evidence before the Secretary- General at the time when the decision was taken.
This impermissibly limits the Tribunal’s role as an independent fact-finder, as it does not allow for the evidence to be presented before it directly, even where necessary and available, and as such, does not make any provision for the eventuality of an incomplete or poorly documented investigation.
It, moreover, removes from the Tribunal’s purview any newly discovered or newly produced evidence.
Relying on incomplete material by the Dispute Tribunal would go against the principle of substantive rationality and procedural fairness, especially given that, according to the jurisprudence, investigative organs are not obliged to actively collect evidence in favour of the staff member.
As it is with any independent court or Tribunal, the determination must be made upon the facts put before it, and not retrospectively;
The proposal shifts the burden of proof on the applicant, contrary to the long-established jurisprudence, which embraces the universal principle that the Administration bears the burden of establishing that the alleged misconduct occurred, sometimes outright called a presumption of innocence
For all the aforesaid reasons, the proposal should not be adopted. “
You claim that your proposed amendment is intended solely to ensure that the legal framework established by the General Assembly is respected.
Deceitful claims to make before the General Assembly.
Between 2009 and 2022, under your delegated authority, seventy-five staff, chiefs, and directors were wrongfully terminated and retaliated against by the Secretary-General.
The UNDT and UNAT ruled in their favor, finding that the termination decisions were unlawful, ill-motivated, and lacking due process.
In the seventy-five cases, the UNDT and UNAT ordered their reinstatement.
In every case, you and your legal counsels opted for compensation instead of reinstatement.
Every single case.
The list is attached.
Seventy-five staff.
For twelve consecutive years.
What respect for the Organization’s legal framework are you talking about?
Instead of releasing your recent report to member states, one UNDT judgment (Nakhlawi) is sufficient to show them the subversion of the system of justice under your leadership and serves to remind them of their legislative authority, which has been consistently circumvented by you and your legal counsels:
“The failure of management to give individual consideration to each case in which rescission of a termination decision is ordered, contradicts the spirit and legislative intent of the General Assembly of art. 10.5 of its Statute.
By that article, the General Assembly created an expectation for staff members that in cases where the Tribunal orders rescission of a termination decision, the Administration will give due consideration to the possibility of reintegration before it considers the payment of the amount of compensation set in lieu of rescission, as determined by the Tribunal.
The Tribunal is of the view that this matter goes to the core of the creation of the “new” internal justice system and the very nature of the accountability of management and the duty of management, and the Organization, towards each and every member of staff, if he or she has done no wrong.
It finds that the policy behind the Tribunal’s Statute and the whole system of justice is put at risk by the attitude of management to systematically opt for the payment in lieu of rescission under art. 10.5(a).
The Tribunal finds the fact that the Administration was unable to present a single case where individual consideration was given to rescission and subsequent reintegration under art. 10.5(a) of the Statute, shows that it fails to exercise the discretion accorded to it under that article.
Failure to exercise discretion is in itself illegal and improper.
It is for the General Assembly to consider whether the underlying policy objective is being frustrated by what appears to be an unwritten policy operated by senior managers.”
Mr. Secretary-General, if you’re still intent on amending the Statute of the UNDT out of respect for the Organization’s legal framework, consider amending one item of art. 10.5:
Make reinstatement mandatory and eradicate the option of compensation in lieu of reinstatement.
Anything short of that is an abuse of justice.
For without an Order of Reinstatement, the United Nations Tribunal cannot make an Applicant “Whole” again.
The practice of opting for payment instead of reinstating staff has encouraged managers to continue their illegal termination of staff to replace them in most cases with their friends. Additional, when UNDT rules that those terminations are illegal, there is no follow up to hold those managers accountable for such damaging decisions impacting lives of innocent people and their families.
I recall a supervisor telling me once about a female colleague “lets fire her and let her appeal. It will take 2-3 years with Tribunals and the maximum outcome is payment of two years compensation”.
On OIOS, this is now used as a career assassination tool with zero independence. Their role is only to please their managers and not to seek the truth. It appears to staff that the instructions given to OIOS is “go find anything on the staff” instead of go find the Truth.
Member states are not focusing on such important details and are satisfied with regular false reports. They must realize that the credibility of the United Nations offices and missions is collapsing as long as those actions continue.