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Judge Slams UN Secretary-General for Undermining the New Justice System and Creating Flawed Procedures to Address Misconduct

, March 02, 2010

new decision issued by United Nations Dispute Tribunal (UNDT) Judge Michael Adams exposes the lack of consistent procedures to address misconduct in the UN system and admonishes the Secretary-General for trying to undermine the ability of the justice system to hold perjurers in contempt of court.

In this case, Mr. Shaaban, the Under-Secretary General of the Department for General Assembly and Conference Management, was “at the very least, careless about whether he told the truth or not [before the Tribunal] and his evidence was untruthful in a number of significant respects.” (para. 22) But when the judge contemplated referring this contempt to the Secretary-General (SG) for discipline, the SG maintained that the Tribunal had “neither jurisdiction nor responsibility” to determine whether or not a perjurer should be held accountable. According to the decision:

“The Secretary-General is independent of the Tribunal. This is correct as far as it goes but it does not follow that the Tribunal’s findings can be ignored… The referral in respect of Mr. Shaaban’s evidence is not a referral in the ordinary course but concerns conduct which undermines the integrity of the internal justice system and the processes of the Tribunal itself. As such, it is a matter in which the Tribunal has a substantial interest.” (para. 24 and 56)

The SG’s disregard of the Tribunal’s finding is a troubling development, as the new justice system will only be effective if the Tribunal’s decisions are enforced.

The decision also critiques the new UN Staff Rules passed in June 2009, which unlike the previous rules, do not: “prescribe any, let alone a mandatory, process for launching an investigation into allegations of misconduct.” (para. 38) According to Judge Adams:

  • “It is a strange and unfortunate feature of both the old scheme and the new that there is no reference to any requirement that the staff member actually be found guilty of misconduct before imposing either a disciplinary or non-disciplinary measure.” (para. 41)
  • “[The new rule 10.3] seems to have been drafted for the specific purpose of conferring as wide a discretion as possible on the Secretary-General (and his or her delegates)… to do from beginning to end whatever they happen to think is reasonable and give the staff member as little traction as possible to question the process. This offends the important requirement of transparency. It is also inefficient (and other more critical language readily comes to mind) to construct a system whose elements will only gradually be discovered by both management and staff when the latter have the fortitude to litigate.” (para. 42)
  • “Although the staff member must be given the opportunity to respond to [misconduct] charges, there is no express requirement that the response should be taken into account, nor what should happen if new facts are disclosed. Is the applicant entitled to see the report, interview the witnesses or request the investigators to obtain other information (and, if not, why not)? ... The description in the heading of this rule as providing ‘due process’ is a misrepresentation. Of all the examples of bad drafting to which I have been exposed in my short term as a judge of the Tribunal, this is the worst.” (para. 44)

This lack of due process in disciplinary procedures has significant repercussions for whistleblowers, who are frequently subjected to disciplinary measures in retaliation for their whistleblowing. It also impacts employees who retaliate against whistleblowers, whom the Secretary-General could arbitrarily choose not to discipline for misconduct.