General Assembly’s Legal Committee Reviews New, Comprehensive System for Administration of Justice at United Nations
General Assembly’s Legal Committee Reviews New, Comprehensive System for Administration of Justice at United Nations
|Department of Public Information • News and Media Division • New York|
Sixty-fourth General Assembly
1st Meeting (AM)
General Assembly’s Legal Committee Reviews New, Comprehensive System
for Administration of Justice at United Nations
Rules and Scope Discussed; Equality for All Is Emphasized
As the Sixth Committee (Legal) today addressed the organization of its work for 2009, and reviewed the new system of administering justice at the United Nations, which had been introduced earlier this year and was generally welcomed, concerns were expressed about certain structural details of the new system, which is now subject to formalization by the General Assembly.
Speaking on behalf of the European Union, the representative of Sweden observed that the new comprehensive system had already begun to prove itself. He also reminded the Committee that issues remained, among them effective remedies for non-staff personnel, legal assistance to staff and the relation between the Tribunals and staff associations. Those would continue to be taken up jointly with the Fifth Committee (Administration and Budgetary).
Delegates also discussed issues regarding the scope of the system and rules of procedure. Some speakers stressed the need to ensure that the system was available to all staff, regardless of designation or classification. “No one would be left out, without recourse,” said the representative of India.
The representative of Gabon said he regretted that there was no judge at United Nations Headquarters who spoke French, one of the two official languages of the Organization. That prevented equal access to all eligible staff. Multilingualism was a critical element to the success of this new system.
The representative of the Democratic Republic of the Congo spoke of the backlog of cases that had accrued under the old system, saying it created an atmosphere of mistrust between staff and management. Stating that “justice delayed is justice denied”, the representative of the Philippines also urged prompt responses after referral.
Venezuela’s representative questioned the limitations placed on staff associations, which presently are legally defined as third parties. She also stressed that the new mediation process would be successful only if kept within the exclusive domain of parties to conflict.
Also speaking today was the representative of Egypt for the African Group, the representative of Mexico for the RIO Group, and the representative of Canada, also for New Zealand and Australia.
Speaking in their national capacities were the delegates of Switzerland, Egypt, Russian Federation, Côte d’Ivoire and United States.
The Committee will meet again at 10 a.m. on Tuesday, 6 October to take up the item on measures to eliminate international terrorism.
The Sixth Committee (Legal) met today to take up organizational matters and to review the new system of administering justice at the United Nations that had been introduced in January.
The Committee had before it a report on the allocation to it of 17 agenda items by the General Assembly (document A/C.6/64/1) and a resolution on its organization of work (document A/C.6/64/L.1).
Also before the Committee was a report of the Ad Hoc Committee on the Administration of Justice at the United Nations (document A/64/55), which was charged with continuing work on the outstanding legal aspects of the new system introduced in January. The Ad Hoc Committee held two plenary meetings ( New York, 20 and 24 April) and proceeded as a Working Group to focus on the scope of the new system with an emphasis on ensuring impartiality, fairness, transparency and efficiency. It also addressed other legal issues such as the questions of legal assistance to staff and whether staff associations would be able to file applications before the United Nations Dispute Tribunal.
A number of delegations reaffirmed their position that non-staff personnel should have the same rights as United Nations staff members when submitting complaints of discrimination, harassment and abuse of authority, and they should be given access to the formal system. A recommendation was made that a working group of the Sixth Committee be established to continue discussions on outstanding legal aspects of the administration of justice during the Committee’s meeting at the Assembly’s sixty-fourth session.
The Committee also had before it a report on the outcomes of the work of the Joint Appeals Board during 2007 and 2008 and between January and June 2009 and statistics on the disposition of cases and work of the Panel of Counsel (document A/64/292). This report includes information from all Joint Appeals Boards of the Secretariat ( New York, Geneva, Vienna and Nairobi).
The report notes that appeals increased with the Joint Appeals Boards during 2008, although the New York Board’s appeals decreased by 10 per cent from 2007. The Vienna Board had an increase of 47 per cent, including four transferred cases from New York. The Nairobi Board had an increase of 82 per cent but that also included seven transferred cases from New York. Also noted was the abolition of the Panel of Counsel and the establishment of the Office of Staff Legal Assistance, which assumed the mandate of the Panel, with all cases transferred to the new Office. As the Joint Appeals Boards and the Joint Disciplinary Committees had now been abolished, this would be the final report.
A report relating to the approval of the rules of procedure of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal (document A/64/229) was approved in June by the judges of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal, which are to be considered by the General Assembly for adoption through the Sixth Committee. The rules of procedure of the Dispute Tribunal contain 38 articles, and the rules of procedure of the Appeals Tribunal contain 33 articles. Both will operate provisionally from the date of their approval until their entry into force on the first day of the month following their adoption by the General Assembly.
A report by the Secretary-General on the practice of the Secretary-General in disciplinary matters and possible criminal behaviour (document/A64/269) presented an annual review of all disciplinary and legal actions taken in cases of established misconduct and/or criminal behaviour within the United Nations.
The report states that in the reporting period between 1 July 2008 and 30 June, 301 cases were undertaken, with 16 resulting in summary dismissals, 91 resulting in administrative measures, such as written or oral reprimands, warnings and letters of caution, and 19 receiving other disciplinary actions after advice of a Joint Disciplinary Committee. By the request of the General Assembly to the Secretary-General to take action expeditiously in cases of “proven…criminal behaviour” and to inform Member States of such action, staff members were in several circumstances arrested and charged by local authorities.
The report also states that some cases involved fraud and misrepresentation, or the circumventing of compound security measures, to result in theft of United Nations assets, which led to separation from service. Falsifying official records to conceal theft resulted in dismissal, and the improper collection of visa and passport fees from new staff members led to summary dismissal. Other cases involved sexual exploitation and sexual abuse, amongst them the hiring of prostitutes, which resulted in summary dismissal. Computer-related misconduct also occurred, as in the case of a staff member with regard to distribution of pornography, which resulted in dismissal.
A report on the activities of the Office of the United Nations Ombudsman and Mediation Services (document A/64/314) states it is the first joint report of the now integrated Office of the Ombudsman, known as the Office of the United Nations Ombudsman and Mediation Services. Among the steps taken to implement the new reformed informal system of justice was a “retreat” that was held as a first step to integrating and harmonizing the new office. Focus was on developing team and skill building, developing administrative practices, and conflict analysis and resolution. Guidelines and operating procedures were being prepared.
The report states that the number of cases handled by the Office had risen by 2.1 per cent from the previous year and covered issues such as standards of conduct (13 per cent), interpersonal matters (17 per cent) and separation/termination issues (8 per cent). Services included guidance, counselling and the exploration of options (56 per cent), mediation (1 per cent) and referrals (6 per cent). The most prevalent reported form of harassment was abuse of power, which included the use of inappropriate language, withholding and threatening to withhold contract renewals, and making staff perform functions unrelated to professional duties.
To foster managerial excellence, the report says the Organization has introduced training and development courses for managers and mandatory training for all staff with supervisory roles. Other programmes were being created and integrated into the system. The Management Support Service was established to guide managers in executing effective change. The number of cases arising from poor management decreased during the reporting period. The joint efforts of the integrated office continued to focus on relevant stakeholders to strengthen the capacity of staff at all levels.
The Committee first completed the process of electing its officers that had begun on 10 June (see Press Release GA/10831). Already elected were Mourad Benmehidi ( Algeria) as Chairman and two Vice-Chairmen, Esmaeil Baghaei Hamaneh ( Iran) and Andris Stastoli ( Albania). Elected today, on the recommendation of the Latin American and Caribbean Group, was Vice-Chairman Marcelo Bohlke ( Brazil). Jean-Cédric Janssens de Bisthoven ( Belgium) was named Rapporteur in place of the elected delegate.
The Committee next took note of the 17 agenda items allocated to it by the General Assembly on 18 September (see Press Release GA/10859). Three working groups were also established to consider the Committee’s work with regard to the administration of justice at the United Nations, with Ganeson Sivagurunathan (Malaysia) as Chairman; measures to eliminate international terrorism, with Rohan Perera (Sri Lanka) as Chairman; and criminal accountability of United Nations officials and experts on mission, with Maria Telalian (Greece) as Chairman.
Administration of Justice
GANESON SIVAGURUNATHAN ( Malaysia), the Chairman of Ad Hoc Committee on the Administration of Justice, introduced the report on the Committee’s work.
NAMIRA NABIL NEGM, Legal Adviser (Egypt), speaking on behalf of the African Group, said that reform of the administration of justice system would be far from complete if it did not ensure impartiality and fairness to all United Nations personnel, regardless of nationality or position. This was essential to creating a healthy working environment.
The African Group supported all efforts of the Ombudsman and Mediation Division to continue providing early intervention in conflicts through its informal and collaborative approaches and urged that through their work, “Justice should remain blind.”
CLAUDE HELLER (Mexico), on behalf of the Rio Group, said the main focus on the adoption of rules of procedure, now being applied provisionally, was essential, and that defining the key features of the administration of the justice system was of great interest to the Group. Other areas of interest were the adequate integration between the formal and informal system, ensuring sufficient access for staff members in the field and finalizing the code of conduct for the judges.
He went on express concern with clearing the backlog of cases before the United Nations Administrative Tribunal, as well as the need to clearly define the lines of responsibility and accountability during the investigative and disciplinary process of the new system. He stressed the importance for staff to have access to legal assistance, advice and representation, as was available under the former Panel of Counsel. “Shifting to a new system does not prevent us from retaining the positive and functional elements of the former one.”
HILDING LUNDKVIST (Sweden), speaking on behalf of the European Union, said the comprehensive new system had begun to prove itself and, comprising both a formal and informal part, would provide a better recourse to justice for staff members. The rules of procedure, which had been provisionally applied since July, should now be adopted by the Assembly, and the European Union was prepared to apply them without delay.
The major outstanding issues would still have to be addressed jointly by the Fifth (Administrative and Budgetary) and Sixth (Legal) Committees, he went on. Those issues included questions relating to effective remedies for non-staff personnel, legal assistance to staff and the relation between the Tribunals and staff associations. Deliberations should be guided by an attitude of trust in permitting the new system to establish its working practices without micromanagement. Efforts to assist should be limited and attention should be turned towards the comprehensive review of the new system during the Assembly’s next session.
With regard to scope and questions relating to effective remedies for non-staff personnel, he said the new system should be consistent with fundamental principles of rule of law and due process. Those included the right to an effective remedy, equal access to justice and the right to be heard. The United Nations should be an exemplary employer and should ensure those rights to all its personnel in all categories. The Working Group should turn its collective thinking to the question, in order to submit meaningful proposals in a timely matter to the Fifth Committee.
KEITH MORRILL ( Canada), speaking also for Australia and New Zealand, said a fair and effective system of internal administration of justice was of key importance to the United Nations. If the United Nations were to promote the principles of protecting individual rights and rule of law, the practices of the Organization must reflect those values. Further, the system must be one that could be trusted by employees, administrators and Member States.
The current discussion of the matter was fundamentally different from that of previous years, he continued. The new system was in place because of the joint consideration given the matter by the Sixth and Fifth Committees. The start-up and transition process had moved forward swiftly, the appointment of judges had proceeded in an exemplary manner, and the rules of procedure of both Tribunals were worthy of endorsement.
While the performance of both Tribunals to date had been satisfactory, the system had been in place for only a few months, he continued. Further consideration of the system should wait until more experience was accumulated. Therefore, the time was not ripe for further modifications or developments at present.
ZÉNON MUKONGO NGAY ( Democratic Republic of the Congo) said that while the objective was to promote the rule of law and uphold the tenets of democracy in the Organization, the paradox was that the system of administrative justice was slow and cumbersome with a resulting backlog. He called for the new system to “mark a departure” from that situation and to create trust and a better working environment at the United Nations. Commending the Internal Justice Council on its efforts, he applauded the nominations of new judges being based on merit and competency. The swearing in, he stated, marked a “decisive step forward”.
He then proposed to establish a mechanism to limit the power of heads of missions and bureau chiefs, and concluded that through the formal and informal aspects of the new system, friendly settlement of disputes was a strong part of the process and would establish a system that ensured justice.
EMMANUEL BICHET ( Switzerland) said that as a host country, Switzerland placed great importance to the resolving of disputes between the Organization and its employees through the rule of law. Although he held concerns about certain provisions in the rules of procedure, Switzerland was prepared to accept them as is, in order to ensure expedient approval, and he urged other delegations to show the same flexibility and do the same.
He said the primary objective of the administration of justice reform was to make sure it was accessible to all persons, regardless of their position or contractual relationship with the United Nations, and that an independent body was needed to ensure impartiality and fairness. To open access to the Dispute and Appeals Tribunals would be efficient and less costly. The establishment of a separate avenue of appeal for consultant and individual contractors, who made up the majority of cases brought before the Office’s attention, would open access to the Tribunals to other staff categories, increasing the number of cases by only 2 or 3 per cent.
NAMIRA NABIL NEGM (Egypt), speaking in her national capacity, said jurisdiction of the formal system of justice needed to be expanded so as to ensure that an effective means of justice was available to non-staff personnel, especially since the new system was intended to ensure impartiality, fairness, transparency and efficiency, as well as to achieve justice and uphold the rule of law in the Organization. The mechanisms currently available to non-staff should be evaluated as to their efficacy, especially since current information indicated that few cases were at present processed through the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL) due to high costs. That impacted the provision of an effective mechanism to non-staff. It also raised questions about other mechanisms and rules that could be used to strengthen the justice system.
Turning to the activities of the Ombudsman and Mediation Services Office, she said the increase in caseload of the informal mechanism was a positive development. Steps taken to promote the Office as one of the pillars to support administration of justice by resolving disputes at an early age were welcome. The Office must be guided by the principles of independence, impartiality and confidentiality. It should follow fair and equitable procedures in mediation. A list of mediators should be prepared and expanded to include service to regional offices. Awareness-raising activities should also be undertaken.
ANNETTE ONANGA ( Gabon) said she supported the new system that had begun working in July and she approved of the judges who had been appointed in both Tribunals. The new system would help to insure that the administration of justice at the United Nations would be impartial, transparent and equitable.
Continuing, she said multilingualism was very important in the new system and it was regrettable that not a single judge at Headquarters was a speaker of French, one of the two working languages at Headquarters. That situation violated the mandate of the new system to give equal access to all eligible staff. The situation should be rectified and the scope of the new system should be extended to include access to non-staff members. The informal avenue of recourse to the Ombudsman’s office should continue to be pursued.
PRADIP CHOUDHARY ( India) said the appointment of five judges, including Justice Kamaljit Singh Garewal from India, would -- with professionalism and accountability -- help bolster the new system of dealing with internal grievances and disciplinary cases. He also observed that the new two-tier system would ensure a transparent, effective and impartial process that would result in the timely resolution of conflicts before the Tribunals.
He said that among several outstanding issues of concern to him were the scope of the new system, and the accessibility of legal assistance to staff; all members of the United Nations workforce should have access to the new system, regardless of designation or classification. In this manner, he said “…no one would be left out, without recourse”.
EMMA ROMANO SARNE ( Philippines) stressed the importance of an independent and impartial system, and called for approval of the rules of procedure for both the United Nations Dispute Tribunal and the United Nations Appeals Tribunal. Regardless of whether the proceedings were conducted through the Tribunals or through mediation, a timely response in a prescribed manner after referral was crucial to the success of the system. “Justice delayed is justice denied,” she stated.
She commended the changes and developments that addressed past systemic issues, among them the revamping of management development courses, and the streamlining of recruitment and contractual arrangements. She said that the primary goal of the old system was the administration of justice; this focus should be continued during this transitional period.
GENNADY KUZMIN ( Russian Federation) said the new system of justice administration at the United Nations was an important contribution to strengthening the rule of law within the Organization. An additional workload faced both Tribunals with the backlog remaining from the previous system. Support for the new system should be facilitated, including by making use of the rules of procedure and taking advantage of the informal mechanism prior to accessing the formal system. All categories of staff must have equally effective remedies. The spring discussion held by the Ad Hoc Committee on the matter had been instrumental in making the new system effective.
DALO GBOUABRÉ ( C ôte d’Ivoire) said the establishment of a justice system adapted to current needs was more than necessary in the general context of United Nations reform, especially since the purpose of the reform was to ensure that all categories of staff, and the Organization itself, rendered respect to all acquired rights and brought a response to situations of breach.
Once the new system was solidly in place, he went on, it would be necessary to address the fate of personnel outside the scope of the statutes. The principle of equality before the law should apply, and all should have effective resort to the system. Non-employees who performed work for the United Nations should be provided with a means to access the administration of justice mechanisms. There should be a hierarchal appeals process, with the opportunity to appeal the first decision.
On other relevant legal issues, he said legal assistance to staff and filing of petitions by staff associations had been discussed, but debate should also begin on the question of successors or third parties being given the opportunity to invoke the responsibility of administrative officials and agents acting for the United Nations. The United Nations had been a peacekeeping presence in his own country for seven years now. Punishable errors had been committed. Under the principle of legality and respect of form, the possibility should be opened for the filing of complaints by Member States or others. The United Nations should assume responsibility for the integrity of its officials.
MARK SIMONOFF ( United States) said he welcomed the extensive judicial reforms to which would have a significant and positive impact on the United Nations personnel system. As he understood them, the rules of procedures seemed consistent with each statute of both Tribunals. He also observed that the new system had been implemented only recently, in July, and that time was needed before a full assessment could be made of its progress.
As a member of the Ad Hoc Committee, the United States contributed several alternative approaches to the issue of personal service contractors, and it looked forward to further discussions of outstanding legal issues, among them establishing the scope of the system and seeking alternatives to including non-United Nations staff in the formal system. The views of other delegations on all these pending matters would be of interest.
ILENA MEDINA ( Venezuela), expressing her delegation’s support of the statement of the Rio Group, stressed the importance of allowing all staff to have access to a judicial process. However, she added, she did not understand why the Tribunals had the right to accept or deny “friend of the court” briefs from staff associations. This, she observed, limited the judicial process to individuals by defining the legal standing of staff associations to that of a third party. She stressed the need for staff associations to be allowed to represent a collective action before the Tribunals.
She said the success of the new mediation mechanism depended on the exclusive participation of the parties to the conflict, without any interference from the Tribunals. “Only they can start or end the process of the mediation,” she stated.
* *** *