As
UN
Judges
Complain of
Ban on
Whistleblowers,
UN Hides
Behind
Chilling
Effects
By
Matthew
Russell Lee
UNITED
NATIONS,
November 13 --
As the UN
preaches the
rule of law,
and
insists for
example that
its
Extraordinary
Chambers in
the Courts of
Cambodia has
independent
judges,
Secretary
General Ban
Ki-moon now
stands accused
by the UN
Dispute
Tribunal
judges of
undermining
their
independence
and even
misrepresenting
their work.
This comes
after Ban left
his screening
of "The
Whistleblower"
before any
questions
could be
asked, see
below.
This
week Inner
City Press
asked the UN
and wrote
about a letter
from the
President
of the UNDT to
the General
Assembly [from
UN transcript]
Inner
City
Press:
opposing a
report by the
Secretary-General
which says
that, going
forward,
whistleblowers
should not be
able to appeal
adverse
decision by
the Ethics
Office to the
UN Dispute
Tribunal,
saying that
decisions of
OIOS [Office
of Internal
Oversight
Services]
should not be
appealable...
The judges all
together have
said this is
wrong and that
the report
gives a
misleading
presentation
of the
jurisprudence
of the UNDT.
So I am
wondering,
especially on
the
whistleblower
question,
where it seems
to remove any
possibility
for
a
whistleblower
to kind of
pursue their
claims, what’s
the
Secretary-General’s
response to it
and what…
particularly
on the
whistleblower
question, I
guess I’d say,
if it is
important that
people be able
to come
forward with
wrongdoing?
Spokesperson:
I have a
rather
extensive
answer, which
I am not going
to read out
to you here.
But I am very
happy to give
it to you
after this.
Later,
Inner City
Press was
e-mailed this
answer:
This
issue
relates to
whether the
actions of
certain
independent
entities
established
within the
United Nations
should be
subject to
judicial
review.
The
General
Assembly has
established a
number of
independent
entities —
the Office of
Internal
Oversight
Services, the
Ethics Office
and the
Ombudsman — to
ensure
accountability
and to resolve
disputes
within
the
Organization.
However, in
order for
these entities
to perform
their
functions
effectively,
the General
Assembly has
stressed that
these entities
are to act
independently
and, in
particular,
independently
of the
Secretary-General.
Since the
General
Assembly
limited the
Dispute
Tribunal’s
jurisdiction
to
“administrative
decisions”,
that is,
decisions
taken by the
Secretary-General,
it
is reasonable
to ask whether
the
Secretary-General
should be held
legally and
financial
liable for
decisions over
which he has
no
control.
Moreover,
we
note that in
the same
letter where
the Dispute
Tribunal
expresses
concern about
challenging
the decisions
of independent
entities, the
Dispute
Tribunal also
states (in
paragraph 24
of its letter)
that “it
is a universal
principle
inherent to
the
independence
and integrity
of the
judiciary that
judges should
enjoy personal
immunity in
the
exercise of
their judicial
functions”. We
absolutely
agree with
granting this
immunity to
judges,
because an
important
public policy
objective is
to be served
by such
immunity.
Judges would
not be able
to properly
exercise their
important
judicial
functions if
they are
subjected to
the constant
threat of
litigation
over the
manner in
which they
manage their
courtrooms or
conduct their
confidential
deliberations.
These
same
considerations
apply to the
functions of
the Ethics
Office, OIOS
and the
Ombudsman, all
of which
conduct
critical
investigatory
and
dispute
resolution
functions for
the
Organization.
The exercise
of
judicial
review over
the actions of
independent
entities would
have
very real
trade-offs for
the manner in
which these
entities are
able
to conduct
their
functions. If
the Dispute
Tribunal were
to suspend
the
investigations
of OIOS, this
would deprive
the United
Nations of
a valuable
independent
mechanism of
accountability.
Staff members
may stop going
to the Ethics
Office or to
the Ombudsman
to report
information on
a confidential
basis, if they
know that in
the future,
they will have
to testify
before the
Dispute
Tribunal about
the
information
they reported.
It is for the
General
Assembly to
consider
whether the
exercise of
judicial
review by the
Tribunals
outweighs the
chilling
effects that
such review
would have on
the
functioning of
these
independent
entities.
That
this UN, which
threatens
retaliation
against
whistleblowers,
now wants to
shut out
judicial
review on the
pretext that
it might have
a "chilling
effect" is
laughable.
Ban and Kiyo
Akasaka on Oct
14, before Ban
left before
Qs, (c) MRLee
It had been
said that UN
Secretary
General Ban
Ki-moon was
surprised and
distressed by
the film "The
Whistleblower,"
that he would
screen and
take part in a
question and
answer about
it.
The day of the
screening,
October 14,
Inner City
Press asked
Ban's
spokesman
Martin
Nesirky, after
he had denied
a journalist's
complaint that
Ban's
"handlers"
pushed him to
avoid
questions, if
there would be
a chance to
ask Ban
questions
after the
film.
Nesirky
checked his
papers and said,
"yes, there is
a
question-and-answer
session."
And so Inner
City Press
went. On stage
was Ban
Ki-moon,
delivering
remarks about
his so-called
"zero
tolerance"
policy on
sexual abuse
by UN
peacekeepers,
then listening
as the film's
director Ms.
Kondracki
and one of its
subjects,
Madeleine
Rees,
critiqued and
mocked the
policy's (non)
implementation.
But before the
time for
questions
came, it was
announced that
Ban had to
leave for
another
engagement.
His spokesman
was there, and
then he
wasn't. And
now this. Watch
this site.
, 
