Source: http://www.un.org/News/Press/docs/2007/gaab3824.doc.htm http://www.un.org/News/Press/docs/2007/gaab3824.doc.htm
Date: November 5, 2007

5 November 2007

General Assembly
GA/AB/3824 





Department of Public Information • News and Media Division • New York
Sixty-second General Assembly 
Fifth Committee 
15th Meeting (AM)

BUDGET COMMITTEE TAKES UP PROPOSALS ON REFORM

OF UNITED NATIONS JUSTICE ADMINISTRATION

Presenting the Secretary-General’s proposals on the reform of the Organization’s justice system to the Fifth Committee (Administrative and Budgetary) today, the Under-Secretary-General for Management, Alicia Barcena, stressed that it had the potential to have an enormous positive impact on the way the Organization managed its most important resource:  the 60,000 staff of the Secretariat, funds and programmes, 52 per cent of whom now served outside Headquarters duty stations. 

Approving the first serious overhaul of the administration of justice within the United Nations in 60 years, the Assembly, last April, decided to establish “a new, independent, transparent, professionalized, adequately resourced and decentralized system”.  Placing great emphasis on informal resolution of disputes before they escalate to unnecessary litigation, resolution 61/261 envisioned strengthening the Ombudsman’s Office and outlined a fundamentally different two-tier formal system of justice, rendering binding decisions and ordering appropriate remedies.  The system would be coordinated by a newly established Office of the Administration of Justice.

Introducing a set of reports that outline essential elements of the legal framework for the new justice system and provide additional detail on specific processes, including selection of judges, draft elements of the statutes for the United Nations Disputes Tribunal and the United Nations Appeals Tribunal, proposed disciplinary procedures, management evaluation and legal assistance for staff, Ms. Barcena emphasized that the Secretary-General’s proposal was a fully integrated one, providing for well-functioning, properly resourced formal and informal pillars.  Therefore, any alteration of the proposals’ integrity could have a detrimental and unforeseen impact on the delivery of justice. 

She appealed to Member States “not to replicate or even exacerbate” the weaknesses of the current system.  The Secretary-General’s recommendations, based on the proposals of the Redesign Panel on the Administration of Justice and modified by two sessions of the Staff-Management Coordination Committee and the guidance provided by the Assembly, would entail some $23.5 million additional resources to be financed from the 2008-2009 regular budget, and $811,000 coming from the peacekeeping Support Account. 

Following Ms. Barcena’s presentation, several Committee members, while acknowledging the importance of achieving an effective internal justice system, expressed serious concern over the cost of the proposed reforms. 

The representative of Australia (also speaking on behalf of Canada and New Zealand) was among the speakers who said that, with the total biennial cost according to the Advisory Committee on Administrative and Budgetary Questions (ACABQ), at some $58 million, the amount sought for the implementation of the reform seemed extraordinarily high.  He agreed with the Advisory Committee that the new system should be implemented in a more prudent manner, with the opportunity to learn from experience over time.  “We should hope that the strengthening of the informal system, in particular the creation of the mediation function, would lead to a reduced need for the formal system in the future”, he said.

Agreeing with the Advisory Committee that the newly proposed system was “elaborate and complex”, the United States’ representative advocated implementing all its elements, “but not necessarily to the degree proposed by the Secretary-General”.  Informal mediation should be emphasized over formal litigation, and professional and volunteer staff should be involved in the new system, which should address the needs of existing staff before expending resources to extend benefits to non-staff.

Several speakers spoke in favour of the Secretary-General’s proposal to establish a Mediation Division within the Ombudsman’s Office, which the Advisory Committee recommended should begin as of 1 January 2008, with four posts.  While also recommending approval of three posts to strengthen the Headquarters Office of the Ombudsman in New York, the Advisory Committee also believed that it was not necessary to establish separate branch Ombudsman offices in each of eight duty stations proposed and that the presence of personnel from the Office of Staff Legal Assistance in some duty stations would provide capacity that staff could draw on.

Regarding the formal system of justice, Pakistan’s representative, speaking on behalf of the “Group of 77” developing countries and China, said the establishment of a first instance dispute tribunal would be a great improvement.  However, the quality of the formal system depended on the quality of judges, and the Internal Justice Council could play an important role in that regard.  It should carefully screen the qualifications of all applicants and make suitable recommendations to the Secretary-General.  The final appointment of judges to United Nations tribunals should continue to be a prerogative of the General Assembly.  Also, given its critical role within the system, the proposed Office of Staff Legal Assistance must be staffed with qualified legal experts and be in position to render credible and sound advice and guidance to staff.

Among other proposals debated today were the Secretary-General’s recommendations, endorsed by the Staff-Management Coordination Committee, for transitional measures that should help eliminate the backlog in the current system before the new one comes in effect in January 2009, as well as the proposed scope of the administration of justice, under which over 100,000 staff and non-staff personnel would receive access to the system. 

Also participating in today’s discussion were representatives of Portugal (on behalf of the European Union and associated States), Dominican Republic (on behalf of the Rio Group), Switzerland, Singapore, Bangladesh, Argentina, Russian Federation, Japan and Qatar.  Statements were also made by Paulina Analena, Vice-President of Staff-Management Coordination Committee and President of the United Nations Staff Council- Vienna; and Stephen Kisambira, of the United Nations Staff Union.  Other documents before the Committee were introduced by Acting Ombudsman, Nora Galer; and Chairman of the ACABQ, Rajat Saha.

The Committee will meet at 10 a.m. Wednesday, 7 November, to hear a statement on the financial situation of the United Nations and take action on several drafts.

Background

The Fifth Committee (Administrative and Budgetary) met this morning to begin its consideration of the reform of the administration of justice within the United Nations.

The Committee had before it a series of reports in connection with the Assembly’s decision, in resolution 61/261, to establish “a new, independent, transparent, professionalized, adequately resourced and decentralized” system of internal justice by 1 January 2009. 

The Secretary-General’s report on the administration of justice (document A/62/294) sets out the essential elements of the legal framework for the new justice system and provides additional detail on specific processes, including selection of judges, draft elements of the statutes for the United Nations Disputes Tribunal the United Nations Appeals Tribunal, and proposed disciplinary procedures, management evaluation and staff legal assistance. 

On 1 January 2009, the United Nations Disputes Tribunal and the United Nations Appeals Tribunal will be established, with the former replacing the Joint Appeals Boards, the Joint Disciplinary Committees and the Disciplinary Committees.  The Appeals Tribunal will have a dual role, acting both in an appellate capacity and as an administrative tribunal.

According to the document, a number of critical decisions will need to be taken during the current session to put in place the foundations for the new system by January 2009.  During 2008, it will be necessary to recruit and train individuals who will play key roles in the development of the new justice system.  Among other things, the report contains proposals for the establishment of the Mediation Division within the Office of the Ombudsman.  In the interim, the Office of the United Nations Ombudsman, the Office of the Joint Ombudsmen (UNDP/UNFPA/UNICEF/UNOPS) and the Office of the Mediator, UNHCR, will continue to provide informal mediation services from existing resources.

Under the proposed scope of the new system, over 100,000 staff and non-staff personnel would receive access to it.  The Secretary-General considers that disputes involving non-staff personnel, including consultants and individual contractors, would be more effectively addressed, if they have access to the same justice system as staff members.

In the report, the Secretary-General endorses the transitional procedures recommended by the Staff-Management Coordination Committee, under which the Joint Appeals Boards and Disciplinary Committees should proceed with all pending matters until 31 December 2008.  Also, staff of the Office of the Ombudsman would be outposted to the three largest peacekeeping missions (MONUC, UNMIL and UNMIS).  All other missions will need to have access to related services at Headquarters or be directed to the heads of branches that would be available at the regional level in Addis Ababa, Bangkok, Beirut, Dakar, Geneva, Nairobi, Santiago and Vienna.  A similar rationale is presented with respect to the outposting of legal assistance officers from Headquarters to large missions.  It is also proposed that legal officers be outposted from the Department of Management to selected missions and regional offices outside New York, where justified by the workload.

Should the Assembly agree on the proposals, total additional requirements in respect of the 2008-2009 budget would amount to some $23.43 million.  Post and non-post requirements related to peacekeeping missions are estimated at $811,100 for the period from 1 January to 30 June 2009, to be financed from the peacekeeping support account.  The Assembly’s approval is sought in that regard, as the support account funds are supposed to be used for the sole purpose of financing human resources and non-human resources requirements for backstopping and supporting peacekeeping operations at Headquarters.

As shown in a related report of the Advisory Committee on Administrative and Budgetary Questions (ACABQ) (document A/62/7/Add.7), the proposals for the new system of justice would entail an increase in resources:  the total number of dedicated posts under the regular budget would increase from 34 to 113; and overall budget requirements would increase from $10.63 million by $23.43 million in 2008-2009 for preparatory work and the first year of operations in 2009, to an estimated $54.77 million for the biennium.  Owing to the delayed recruitment factor, the current proposal includes only 50 per cent of the costs of the new Professional posts to be created as of 1 January 2008, and 25 per cent for those to be created on 1 January 2009. 

The requirements are based partly on the current caseload and the general assumption that recourse to the system will increase with the growth of staff’s confidence, the document states.  However, strengthening of the informal system may reduce recourse to the formal system.  ACABQ is concerned that the establishment of such an elaborate system is being envisaged without the benefit of any real experience in a comparable setting.  It, therefore, believes that the system should be implemented in a prudent and gradual manner, permitting further development in the light of experience.

For 2008-2009, the Advisory Committee recommends approval of a total of 33 new posts, under the budget section on overall policymaking, direction and coordination.  It also requests that the Secretary-General’s resource proposals be adjusted to take into account its recommendations and that the adjusted resource requirements be provided separately for the Assembly’s consideration.  Recognizing the need to eliminate all backlogs in anticipation of the implementation of the new system, the Advisory Committee trusts that every effort will be made to ensure effective utilization of resources granted. 

Also recommended is approval of the Secretary-General’s requests for:  the Panel of Counsel ($166,000); the Joint Appeals Board and Joint Disciplinary Committee secretariat at Headquarters ($200,900); the Joint Appeals Board and Joint Disciplinary Committee secretariat in Geneva ($143,900); the Administrative Law Unit ($253,000); and the Executive Office of the Secretary-General ($173,100).  The request for general temporary assistance for the United Nations Administrative Tribunal secretariat -- more than doubling its existing capacity -- has not been adequately justified.  Therefore, the Advisory Committee recommends approval of general temporary assistance equivalent to one P-3, one P-2 and two General Service for one year.

In the Committee’s opinion, the Secretary-General has not provided any new or convincing rationale for expanding the scope of the internal justice system to individual contractors, consultants and volunteers.  Therefore, it recommends that the system continue to apply only to individuals covered by the Organization’s Staff Regulations and Rules.  The lower number of persons to be covered should have an impact on the level of requirements.  ACABQ does recognize, however, the Organization’s responsibility to ensure that the daily paid workers in peacekeeping missions (3,312 individuals as of September 2007) have access to suitable recourse within the framework of the United Nations.

With the informal system constituting an important element of the reform, the Advisory Committee supports the establishment of the Mediation Division from 1 January 2008, with four posts.  One of the Mediator posts should be provided through redeployment of the existing post in the Office of the Ombudsman, which the Secretary-General proposes to redeploy to Addis Ababa.  Accordingly, three new posts would be established for the Mediation Division, including one D-1, one P-5 and one General Service.  ACABQ also recommends approval of three posts to strengthen the Headquarters Office of the Ombudsman in New York.

Also provided in the report are recommendations on the establishment of branch Ombudsman offices in Geneva and Nairobi as of January 2008, as well as in the Democratic Republic of the Congo and the Sudan.  However, the Advisory Committee recommends against the establishment of such offices in Vienna, Addis Ababa, Bangkok, Beirut, Dakar, Santiago, and Liberia.  ACABQ also recommends against the establishment of a formal management evaluation process at this time, expressing concern that it may only add costs and delays to the process.  However, it recommends that the five existing posts (one P-5, one P-4 and three General Services (Other Local)) in the Office of the Under-Secretary-General for Management, proposed to be redeployed to the Management Evaluation Unit, be dedicated to management evaluation activities. 

On legal assistance to staff, the Advisory Committee remains convinced that formal arrangements envisaged should be complemented by some form of staff participation, which would promote staff “ownership” and could discourage unnecessary litigation.  While supporting, in principle, the delegation of authority for disciplinary matters, ACABQ believes that conditions are not yet ripe to implement the limited delegation of authority envisaged by the Secretary-General.  It recommends that a more detailed proposal should be submitted in that regard, to be considered during the second part of resumed sixty-second session. 

An additional amount of $884,100 has been requested for the Department of General Assembly and Conference Management for editing, translation and text processing for the projected 135 Tribunal cases in 2008.  The Advisory Committee urges the Secretariat to make every effort to maximize utilization of existing resources for the processing of those cases.  Any additional expenditure should be reported in the second performance report for 2008-2009.  Commenting on the Secretary-General’s proposals to accelerate the pace of the Tribunal’s work and reduce the backlog before 1 January 2009, the Advisory Committee concurs with the Secretary-General’s request to hold an additional session of the Administrative Tribunal in 2008, adding that the issue of judges’ compensation is for the Assembly to decide upon.

The Secretary-General’s report on the resources required for the implementation of the reform (document A/61/891) addresses the requirements to ensure proper functioning of the system during the interim period, comply with the time limits of the existing appeals process, clear the backlog of cases, and identify three posts for the Office of the Ombudsman for Geneva, Vienna and Nairobi, as well as the Assembly’s decision to formally establish a new Mediation Division within the Office of the Ombudsman.  In addition, the Secretary-General is proposing an interim arrangement to ensure that the necessary preparatory work is undertaken in advance of the new system becoming operational. 

In that regard, additional resources for the biennium 2006-2007 are estimated at $1.9 million, with a further $6.8 million required for the proposed 2008-2009 budget.  Those resources would be used to hire temporary staff at the Panel of Counsel, Joint Appeals Boards, Joint Disciplinary Committees secretariats at Headquarters and Geneva, Administrative Law Unit and Conference Services.  They would also cover requirements for 11 new posts for the Regional Ombudsmen in Geneva, Nairobi and Vienna, and new staffing at the Mediation Division. 

The ACABQ, in a related report (document A/61/936), recommends approval of the $1.9 million for 2007, recalling the Secretary-General’s indication that those funds would be accommodated within the existing appropriation for 2006-2007.

The continuation of those proposals in 2008-2009 is estimated at $6.8 million, but the ACABQ intends to revert to that issue within the context of the budget proposal for that biennium.  With the Secretary-General’s efforts to identify three regional Ombudsmen not successful, so far, ACABQ recommends the establishment of temporary positions funded through general temporary assistance for the period from 1 July to 31 December 2007.

The Committee also had before it a report on the outcome of the work of the Joint Appeals Board in 2005 and 2006, which also contains statistics on the disposition of cases by the Panel of Counsel (document A/62/179). 

The Secretary-General’s report on the activities of the Ombudsman (document A/62/311) includes statistics, information on trends, and comments on policies, procedures and practices, that have come to the attention of the Ombudsman from 1 September 2006 to 31 July 2007.  With more and more cases taken up by the Ombudsman each year, the report notes that staffing needs of the Office have been increasingly expanding and necessary funds should be retained to staff additional positions authorized by the Assembly.  Currently, more than 60 cases are opened each month, with a total of 2,664 cases opened and 2,316 cases closed since 2002.  From 1 September 2006 to 31 December 2007, 667 new cases were opened, a 50 per cent increase over the number of cases from 2002 to 2004.

The five-year assessment has shown an increase in the complexity and number of cases taken up by the Ombudsman’s Office.  Although the Office has been praised for being accessible and confidential, better follow-up of cases, and easier access from remote field locations and by lower-level staff with limited phone and e-mail access have also been recommended.  In addition, further clarification of the role of the Office was suggested.  Finally, the report recommends introducing standard operating procedures, data collection and clear reporting lines, when establishing regional branches of the Office.

Introduction

Presenting the Secretary-General’s reports before the Committee, ALICIA BARCENA, Under-Secretary-General for Management, said that last spring the Assembly had taken a landmark decision in resolution 61/261 to create a new system of “internal justice”, or dispute resolution, for the United Nations.  Both the Secretary-General and she believed that the reform had the potential to have an enormous positive impact on the way the Organization managed its most important resource:  the 60,000 staff of the Secretariat, funds and programmes, 52 per cent of whom now served outside Headquarters duty stations.

The panel of outside experts -– the so-called Redesign Panel -– had made a very severe diagnosis of the state of the existing system in 2006, saying that it was “outmoded, dysfunctional and ineffective”.  The Secretary-General had then entered into a comprehensive set of negotiations with the management and staff, including the representatives of 12 different unions and staff associations.  Member States had taken an unequivocal decision in resolution 61/261 that a complete overhaul of the system was needed, agreeing that a fundamentally new system was needed, rather than incremental patching of the old one.  Member States had stressed that the new system should meet five key criteria:  independence, transparency, professionalism, decentralization and adequacy of resourcing.  The Secretary-General’s proposal was a fully integrated one, providing for well-functioning, properly resourced formal and informal pillars.  Therefore, any alteration of the proposals’ integrity could have a detrimental and unforeseen impact on the delivery of justice. 

Continuing, she made a plea to Member States not to replicate or even exacerbate the weaknesses in the current system -– the delays resulting from an under-resourced system, the lack of objectivity, independence and professionalism of peer-review or volunteerism and the blockages and bottlenecks encountered at different stages.  It was essential, therefore, that the five key characteristics laid down in resolution 61/261 be kept at the forefront, during the course of deliberations.  The Secretary-General’s recommendations, based on the Redesign Panel proposals and modified by the two sessions held with the Staff-Management Coordination Committee and the guidance provided by the Assembly, would entail some $23.5 million in additional resources to be financed through the 2008-2009 regular budget, and $811,000 coming from the peacekeeping Support Account.  The $23.5 million included the $6.8 million already identified in document A/61/891.  About $4.2 million was proposed to deal with the case backlog during 2008.

Regarding posts, she said that, in addition to the 34 posts already provided under the existing justice system, the reports before the Committee requested a further 79 posts, to be funded from the regular budget.  She expected that those figures could be significantly reduced, by as much as one third, once workable cost-sharing arrangements with various funds and programmes had been agreed.  The staffing requirements in respect of peacekeeping operations would comprise 21 posts. 

Regarding the creation of a first instance Disputes Tribunal, with an appellate instance, the Appeals Tribunal, both of which would render binding decisions, she said that it was an important shift from the powers of the existing Joint Appeals Board/Joint Disciplinary Committee bodies that only had the power to make non-binding recommendations.  It was proposed that the Disputes Tribunal should consist of three panels of three judges; she explained that, unlike staff of national civil services, the United Nations staff were extremely diverse in terms of nationality, culture and religion and served in up to 140 duty stations.  Likewise, the judges would come from varied backgrounds.  The diversity provided by a three-judge panel would help minimize any real or perceived bias towards a particular legal approach on system.  The Disputes Tribunal would also take over the essential fact-finding function of the Joint Appeals Board/Joint Disciplinary Committee, and the panel of three judges could help maximize accuracy, objectivity and fairness at that stage.  The panel would also allow for deliberations prior to the issuance of a judgement.  The Disputes Tribunal was likely to be the final decision-making body in many cases, making the perceived legitimacy of its decisions extremely important.

Change did not happen without an appropriate commitment of time and resources, she said in conclusion.  “We will not meet the implementation deadline of January 2009 if all the necessary preparations are not completed between now and then,” she said.  There was a lot of work to do: the finalization of the terms of reference for the new Offices of the Administration of Justice and Staff Legal Assistance, and early identification of possible candidates for staff positions in the Ombudsman’s Office, as well as Disputes Tribunal/Appeals Tribunal judges.  Managers and staff would also need to be properly briefed and trained on all features of the new system and the important implications of their work.  Approval of some temporary resources for the early creation of the independent new Office for the Administration of Justice would assist the Secretariat in getting the new system up and running.  She urged Member States to build on the clarity and sense of purpose they had expressed in resolution 61/261 by approving the resources required for the full functioning of a robust new system of internal justice.

PAULINA ANALENA, Vice-President of Staff-Management Coordination Committee and President of the United Nations Staff Council-Vienna, thanked Member States for recognizing how critical the overhaul of the United Nations’ internal justice was to the health of the Organization and the well-being of its staff.  The staff of the United Nations had rejoiced when the General Assembly had adopted resolution 61/261 in March this year, because it signalled to them that Member States understood the significance of the Redesign Panel report and agreed that the existing system was outmoded, dysfunctional, ineffective and lacked independence.  She urged the delegates to transform the inspirational words of resolution 61/261 into a tangible, functional system that would position the United Nations as an employer second to none and sit as the cornerstone of much-needed organizational reform. 

One of the Redesign Panel’s most scathing critiques of the existing system related to the disparity in legal resources available to the management and staff, which it regarded as “an egregious inequality of arms in the internal justice system”, she continued.  In today’s system, professional legal staff represented management before the adjudicative bodies as part of their normal duties.  By contrast, staff members relied solely on advice provided by volunteer staff members.  The system of voluntary counsel left many staff with no assistance whatsoever, particularly the staff in the field.  That system was not sustainable and could not be a key component of a fair system.  The staff believed that an adequately resourced Office of Staff Legal Assistance, outlined in the Secretary-General’s report, addressed the glaring inequity that existed in the present system. 

Some might think that there were other, less costly ways to address that problem -- for example, the use of outside counsel, or establishing an office with just a handful of junior officers.  She strongly urged the Committee to see those “solutions” for what they were:  false economies.  The United Nations justice system did not generally provide for the payment of attorneys’ fees, and money judgements were not of sufficient size to allow for attorneys to take cases on a contingent fee basis.  Few, if any, staff members would be able to afford attorneys’ fees, and staff would continue to bring cases without any legal assistance.  Many of those cases would be unnecessarily complicated and time-consuming.  That would doom the future system to today’s “plague of delay”.  Providing resources to the Office of Staff Legal Assistance was a prudent expenditure for future efficiency.  Staffing the Office with junior legal officers would perpetuate the very “equality of arms” problem highlighted by the Redesign Panel.  She urged the Fifth Committee to give the Office of Staff of Legal Assistance adequate funding and sufficient senior-level leadership to allow it to fulfil the role envisioned in resolution 61/261.

Staff had reached consensus with management that the appointment process for senior figures in the new justice system should be transparent, she said.  For that reason, they strongly endorsed the Internal Justice Council.  Staff further believed that all senior personnel in the new system must have the professional skills and qualifications necessary to perform their tasks.  Only by selecting candidates of the highest calibre could the United Nations have an internal justice system second to none.  The Internal Justice Council played an important role in securing the best and brightest talent for the new system. 

She also supported the informal dispute resolution mechanisms, saying that staff had very high expectations for the informal system.  It was anticipated that it could reduce the workload of the formal system by as much as 75 per cent, but it could not hope to reach that target if not adequately resourced.  Nor could it succeed if it was not global in its reach.  Staff serving away from Headquarters, who constituted the majority of staff, must have the same rights and access as those at Headquarters duty stations.  “Because we strongly believe that a decentralized system was essential for internal dispute resolution to take root in the UN, we strongly support the proposals for informal resolution of disputes outlined in the Secretary-General’s report,” she said.

In conclusion, she implored the Committee to keep the core principles of independence, transparency and decentralization firmly in mind when acting on the new system.  Any attempt to import aspects of the current system, which was demonstrably inefficient and unfair, must be avoided.  She urged the Committee to reject false economies and to give the system the resources needed to signal a true departure from the hopeless inadequate current system, which was rightfully scorned by staff, management and the experts of the Redesign Panel.  “Please, give the Organization the tools that it needs to make the UN system of justice the paragon that it must be to serve as the guiding light around the world,” she said.

NORA GALER, Acting Ombudsman, introduced the report on the activities of the Office of the Ombudsman, saying that the establishment of the Office in 2002 had provided for the first time a dedicated mechanism available to all staff, wherever located, for the informal resolution of employment-related conflicts, based on the principles of confidentiality, impartiality, independence and neutrality.  Within the terms of its mandate, the Office also made recommendations for changes in policy or practice where a particular dispute or set of issues reflected a large systemic problem. 

It was expected that the implementation of the recommendations of the Redesign Panel relating to the Office of the Ombudsman would enhance the effectiveness of the Office in accomplishing resolution of conflicts, including through binding mediation agreements, she said.  The establishment of branches in duty stations worldwide would improve access to the services of the Office from field staff and would enable the Office to respond swiftly to problems brought to its attention.  Presence in the field would also enable the Office to play a more effective role in identifying systemic problems and act as an early warning to local management about festering issues.  Over the reporting period, 39 per cent of the staff seeking assistance of the Ombudsman was from offices away from Headquarters. 

She said that the first five years of the Office had been devoted to the establishment and consolidation of its activities.  Thanks to the sustained support of the Fifth Committee, the new mechanism, despite its limited resources, had become fully operational, well known and well accepted at the United Nations.  The next five years would be even more critical for the success of the system of justice at large.  Under the leadership of the new Ombudsman, who would be selected through an inclusive process with participation of both management and staff, the Office would need to further expand its reach to be able to respond to increasing demands, with a truly horizontal, zero-barrier approach.  Standard operating procedures and clear reporting lines would need to be put in place.  By establishing a Mediation Division within the Office, Member States would increase the Office’s ability for upstream conflict resolution, allowing for better conditions of service and an enhanced workplace environment. 

The Chairman of ACABQ, RAJAT SAHA, presented that body’s report, saying that the Secretary-General’s proposal to cover non-staff personnel would expand the scope of coverage by some 45,000 persons, or 75 per cent.  The Advisory Committee continued to believe that there was no sound basis for granting access to the internal justice system to individual contractors, consultants and United Nations Volunteers, who had existing means of recourse. 

Recommending that the Mediation Division be established from 1 January 2008 consisting of four posts, ACABQ also believed that, with its strengthened role, the Office of the Ombudsman should be able to promote informal resolution of disputes, thereby avoiding unnecessary litigation.  The Advisory Committee’s other recommendations in that regard reflected its view that it was not necessary to establish separate branch Ombudsman offices in each of eight duty stations proposed and that the presence of personnel from the Office of Staff Legal Assistance in some duty stations would also provide knowledgeable capacity that staff could draw on.  As for the proposal for introducing a formal, mandatory management evaluation structure, the general principle of exhausting administrative remedies before proceeding to litigation could be honoured through an informal process.  ACABQ was recommending that the posts proposed to be redeployed to the Management Evaluation Unit be dedicated to performing management evaluation activities, as required. 

Concerning the proposals for the Office of Administration of Justice, the Committee’s principal recommendations were that the post of Executive Director be approved at D-2, rather than Assistant Secretary-General, level, and that a consolidated registry for the Dispute Tribunal and Appeals Tribunal be established, instead of separate registries.  Regarding the Office of Staff Legal Assistance, ACABQ’s approach was to provide legal assistance capacity in some duty stations and Ombudsman capacity in others.  As for the proposal that the Disputes Tribunals in New York, Geneva and Nairobi should function through panels of three judges, the Advisory Committee believed that the Redesign Panel’s proposal for a single judge with some elements of peer review provided sufficient safeguards to ensure that the law was properly applied.  On disciplinary matters, it appeared that conditions were not yet ripe to implement the limited delegation of authority envisaged by the Secretary-General or for the General Assembly to take a fully informed decision.  ACABQ recommended that the Secretary-General be requested to submit a more detailed proposal in that regard for the Assembly’s consideration at its resumed sixty-second session.

STEPHEN KISAMBIRA, of the United Nations Staff Union, said in any justice system there must be a guarantor of independence, professionalism and accountability.  He called for a separate body charged with recruiting judges, disciplining them, hearing complaints and reporting on their work.  The body should be independent from both management and staff and from judges themselves.  In many countries, its functions were entrusted to a “Judicial and Legal Services Commission”, usually comprised of the Chief Justice, several retired judges and several lay or political nominees.  That body appointed the judges and supervised their work.

He said the proposed Internal Justice Council must be the lynchpin of the new system, identified as such by the Commission of Experts established by the Staff Union to review the system for administering justice.  The Commission’s proposal was endorsed by the Redesign Panel.  Unfortunately, the Redesign Panel did not describe the Internal Justice Council in sufficient detail for readers to fully appreciate the crucial role envisaged for the body.  He was also concerned that no budgetary provision appeared to have been made for its establishment.

He said that the Internal Justice Council should comprise five members, including a management nominee and a distinguished lawyer appointed by the staff.  Those members would then appoint an eminent judge to be Chairman, ensuring the independent nature of the body.  The vital functions of the Internal Justice Council were to include:  drawing up job descriptions for full-time first instance judges, Appeals Tribunal judges and possibly senior staff; placing advertisements in appropriate media and recruiting candidates for judicial positions; interviewing candidates and recommending for appointment two or three candidates for each position; drafting or advising on the drafting of the revised Appeals Tribunal statute and the statute for the lower court and preparing the initial rules of procedure and evidence; advising the Secretary-General and the Office of the Administration of Justice on the needs of judges; dealing with complaints against judges and hearing allegations of judicial incapacity or misbehaviour, possibly recommending their removal; making an annual report to the General Assembly on the performance of the Internal Justice Council and making recommendations for improvement; taking up judicial grievances and mediating between judges and the Secretary-General; and drafting employment contracts for judges and drawing up a code of conduct for United Nations internal judges, of which a draft should be available by January 2009.

Since most judges would have a backlog of cases to complete before taking up their positions in January 2009, the system could not begin until the Internal Justice Council was funded and put into place.  It would probably need to meet initially for two weeks and then to meet to interview candidates and agree on recommendations for a few days every two months before the system was up and running.  Thereafter, it would not be necessary for it to meet for more than a few days every three or four months.  It was the Internal Justice Council, not the Secretary-General or the Office of the Administration of Justice, that the United Nations must look to ensure that the new system complied with basic standards of fairness and independence.  It, therefore, must be established as soon as possible, otherwise it might not be in at all, thus defeating the whole reform objective of having the new system be impartial and independent.  The Committee might wish to consider inviting members of the Redesign Panel to help set up the Internal Justice Council for the first year.

He welcomed proposals for strengthening legal assistance for staff by the creation of the Office of Staff Legal Assistance, in accordance with the principle of “equality of arms”.  Each party should be given a reasonable opportunity to present its case under conditions that did not put the accused unfairly at a disadvantage and, at a minimum, required equality of means and resources between both parties.  The staffing of the Office should be at the calibre of personnel with other offices of the administration of justice and the right balance between the staff members and counsel and the phalanx of high-level lawyers should be established.  He noted that the proposed staffing of the Office was not commensurate with the staffing of the offices of others in the administration of justice.

Noting that the Redesign Panel proposed that the Joint Disciplinary Committee and Joint Appeals Board continue to function until the new system was operational and recommended that a professionalized Office of Counsel be established as soon as possible, he said the Office of Counsel would help deal with the new and existing cases and reduce the backlog of cases by the time the new system becomes operational.  He urged the Committee o consider expediting the establishment of the Office of Counsel even before the Office of Administration of Justice.  The Committee might consider appointing two full-time judges, one for the Joint Appeals Board and another for the Joint Disciplinary Committee, for a one-year, non-renewable term to deal with the new and existing cases until the new system was operational.  Those full-time judges could be assisted by staff members who would be offered a rapid and intense course of training and given full time-off to help deal with the new cases and reduce the backlog of cases.  Again, he said the Committee might wish to invite the Redesign Panel to sit on the Joint Appeals Board and Joint Disciplinary Committee.

Statements

IMTIAZ HUSSAIN (Pakistan), speaking on behalf of the “Group of 77” developing countries and China, reaffirmed the importance of a truly, independent, professionalized, decentralized and adequately resourced system of administration of justice as critical to addressing all employment and contractual issues, and helping the staff in seeking a fair and just resolution in conformity with due process.  Resolution 61/261 provided a clear road map and defined the key features of such a system, which should ensure quality, adequacy of resources and equality in their distribution to all duty stations.  The Group supported full implementation of the resolution, noting that the Secretary-General’s report was a good basis to address those issues.

Noting the Secretary-General’s intention to extend the scope of the new system to all categories of staff, he said the system must achieve the necessary strength and stability to address the issues of another 40,000 people. He believed that a well-resourced informal system of justice, including a strong and structured Mediation Division, was a core function of the system and would help solve problems quickly and cost-effectively.  He supported the policy of equity in establishing the related posts at all duty stations, noting the Secretary-General’s proposal to establish the Ombudsman’s offices in peacekeeping missions.

Supporting the strengthening of an informal system as a means to avoid burdening the formal system, he recognized the role of management evaluation to mitigate grievances.  However, the informal system needed to be governed by the strict time frame to enhance its efficacy and reliability.  In that regard, he agreed with ACABQ that such evaluations should be undertaken in the shortest possible time, essentially within 30 days.  If the case was not resolved by then, it should automatically be sent to the United Nations Disputes Tribunal.  On the other hand, staff should not be bound to seek such evaluation in 60 days.  He also noted that the current resources available for management evaluation needed to be used efficiently.  The establishment of a first instance disputes tribunal would be a great improvement upon the old system, which should be in position to convene and pronounce on disputed matters as soon as possible.

He noted that the quality of the formal system hinged on the quality of the judges and believed that the Internal Justice Council could play an important role, which should carefully screen the qualifications of all applicants and make suitable recommendations to the Secretary-General.  The final appointment of judges to United Nations tribunals should continue to be a prerogative of the General Assembly.  The Group supported attractive remuneration for United Nations judges.  Noting that the staff had for far too long suffered the consequences of a poorly equipped staff legal assistance unit, he called on the General Assembly, in spirit of resolution 61/261, to rectify the inadequacies of the Panel of Counsel.  Given its critical role within the system, the proposed Office of Staff Legal Assistance must be staffed with professionally qualified legal experts and be in a position to render credible and sound advice and guidance to distressed staff members.

Monitoring the implementation of the new system was pivotal in reaching the goal of a functional system of justice by January 2009, which the Group supported.  He supported the Secretary-General’s proposals, endorsed by the Staff-Management Coordination Committee, for transitional measures that should help eliminate backlog in the current system.  He also noted that the Office of the Administration of Justice should be headed by senior-level staff that ensured access to all policy-level decision-making processes and coordination meetings.  He would like to pursue the objective of establishing at least an Assistant Secretary-General at the head of the Office.  He emphasized that the new system should ensure the protection of the confidentiality of involved parties in a dispute and the management must put in place appropriate mechanisms to address the issue of leaks and their negative fallout.  That was especially important to protect the reputation of staff members at stake, in particular those who turned out to be wrongly accused.

EDUARDO RAMOS ( Portugal), speaking on behalf of the European Union and associated States, said that, during the session, the Committee would take the next step in the form of the administration of justice system following the adoption of resolution 61/261.  That was a task of great importance.  The European Union had consistently given the highest priority to the issue.  Now it was time to elaborate concrete details of the new system, building on the previous work.  Resolution 61/261 must be fully implemented.

Among the important issues, he highlighted the fact that the new system should enjoy the confidence of both staff and management and should provide equal access to justice.  Judges should serve strictly in their personal capacity and be independent.  It was important to design a system of judge selection to ensure that their professional qualifications met the tasks assigned to them.  The system should be structured to deal with as many grievances as possible.  The Office of the Ombudsman would play an important role in the informal system of justice.  Another important aspect that needed to be considered was how the informal system should link to the formal one.

To be effective, the new system was to be set up in a realistic time frame, he added.  The Committee had to decide on the financing and staffing required.  In that connection, he pointed out that not everything desirable was feasible, in the long run. It was necessary to take well-considered decisions, in that regard.  He also noted the request of ACABQ that the resource requirements be adjusted in line with its recommendations and presented separately.  That was not the usual procedure, as usually the financial implications of ACABQ recommendations were included in its reports.  He wanted to know if the Secretariat would provide the estimates in a formal session.

In that connection, the CHAIRMAN said that the responses would be provided in an informal meeting.

ROBERT HILL (Australia), also speaking on behalf of Canada and New Zealand, said that he attached great importance to the reform of the administration of justice system.  A properly functioning system underpinned all efforts to strengthen accountability, oversight and human resources reforms.  In April, the General Assembly, in resolution 61/261, had responded to the recommendations of the Redesign Panel in deciding to establish a new, independent, transparent, professional system of the administration of justice and requested the Secretary-General to provide detailed proposals on the implementation and resources required.

He was concerned by the cost of the proposed reforms.  The report of ACABQ estimated the total ongoing biennial cost at over $58 million, which seemed extraordinarily high.  He agreed with the Advisory Committee that the new system should be implemented in a more prudent manner, with the opportunity to learn from experience over time.  “We should hope that the strengthening of the informal system, in particular the creation of the mediation function, would lead to a reduced need for the formal system in the future,” he said.

The ACABQ had suggested some deep cuts in resources, recommending approval of just under half the new posts requested, he continued.  Member States were yet to receive details of how that would affect the overall cost of implementation. However, he would consider those recommendations carefully, to ensure that resources were allocated for the proper functioning of the new system.  The cost-sharing arrangements were also an important factor in the funding of the new system, with one third of staff covered working outside the Secretariat and peacekeeping missions.  Negotiations in that regard were ongoing with the heads of relevant funds and programmes, and he would appreciate an update in that regard.

Regarding disciplinary proceedings that would accompany the new system, he said that the delegation of authority to heads of mission for disciplinary matters should help eliminate many of the delays experienced in the current system.  He noted the importance of adequate guidelines for the imposition of sanctions to ensure consistency across all United Nations offices.  For the new system to be successful, it must engender the trust of both management and staff.  Part of building that trust was to implement the new internal justice system as scheduled, by the start of 2009.  To achieve that goal, certain decisions needed to be made during the current session.  He would work constructively with all partners in that regard.

OLIVIO FERMIN (Dominican Republic), speaking on behalf of the Rio Group, attached importance to improving the conditions of service to staff for a professional, fair, independent system, seen by administration and staff as balanced and transparent.  In the previous session, he said the Group supported the reform process for a formal and informal system, in accordance with international law.  Implementation should be made in a phased manner with adequate resources, aiming at better implementation of the system by 2009.  The Secretary-General and ACABQ’s recommendations served as a good basis for reform of the former system.  However, he asked for more specific details during informal meetings.

He agreed with the Secretary-General that an informal system was essential, could help to achieve greater efficiency, and avoid unnecessary litigation.  The Secretary-General’s proposal for a single, decentralized office for the Secretariat for programmes and funds would ensure a system that was in place both for staff and for the field.  A mediation system would strengthen the Office of Ombudsman’s capacity, so that so many cases would not need to reach the formal system.  Taking up the recommendations to reduce some proposals of the Secretary-General, he was concerned about those reductions, including those involving Latin America.  It was important to strengthen the evaluation function, so the administration could correct or overturn decisions before they reached dispute tribunals.  That would, in effect, strengthen accountability and have a positive impact on strengthening the Secretariat.

Reductions of time limits proposed by ACABQ should go hand in hand with available resources to meet deadlines, he continued.  He also supported strengthening resources for the Office of Staff Legal Assistance, and he said cost-sharing arrangements should be established.  He hoped financing was transparent and just and equitable for the involved entities.  He also agreed with ACABQ that the establishment of two separate registries for disputes would be duplicative -- there should be just one.

EMMANUEL BICHET ( Switzerland) endorsed the General Assembly’s plan to rapidly put in place a new system of administration of justice.  It was essential to reform the current system, because it did not guarantee to persons working for the United Nations access to an effective appeals procedure and to a fair trial.  The reform was all the more necessary, because staff had no other recourse, as the United Nations enjoyed immunity in its Member States.   Switzerland was aware that the reform proposed by the Secretary-General would have substantial budgetary implications.  While prepared to consider certain adjustments in order to limit the costs, it was not inclined to support proposals that would endanger the minimum standards with regard to justice and the overall principles fixed by the Assembly. 

The main objective of justice reform should be to enable all persons, regardless of the nature of their contractual connection to the United Nations and the location in which they carried their duties, to present their case in the event of a dispute and, if necessary, to have the right to a fair trial.  It was, therefore, essential, as stressed in resolution 61/261, that the system should be decentralized in both its informal and formal aspects, in order to facilitate access.  The informal system should have competent staff in sufficient numbers.  The formal system should also be allocated sufficient means to ensure fair and effective justice, which would satisfy the demands of the rule of law.  That required the creation of a jurisdiction of first instance and of an appeal system that was capable of reviewing disputes in an independent manner.

Switzerland agreed with some proposals made by ACABQ, such as the financial participation of staff when using legal assistance in order to discourage unnecessary litigation, he said.  Nevertheless, he did not share the Advisory Committee’s views with regard to two proposals.  Switzerland considered that the scope of application of the new system should be the broadest possible in order to ensure that any person working for the United Nations had access to an effective resource, regardless of his or her contractual link to the Organization.  Also, if only one registry was created for both tribunals, it was essential to make sure that different persons prepared the decisions in the first and second instances, in order to ensure that the Appeals Tribunal had sufficient independence.

HOE YEEN TECH ( Singapore) stated that, for any organization to function, it must have a good system of governance and accountability.  The United Nations was no exception. Its current justice system was adapted from a model created 60 years ago and while the work of the Organization had evolved, its justice system had not kept pace.  There were long delays in processing even simple administrative cases, with three or four years being not uncommon.  The reality was that management was always in an advantageous position over staff when it came to disciplinary cases.  Sometimes, staff did not even have the benefit of due process.  The current system was also inconsistent in its decisions and decision-making processes.  The Secretary-General could choose to ignore and contradict the findings of the United Nations justice panels.  One of those panels had even described the investigations procedures as being out of line with international human rights standards.

However, he noted that the Redesign Panel had suggested a way forward.  For minor and personal disputes, there was an informal justice system that was relatively quick and cheap.  For more serious cases, there would be a formal justice system staffed by professional judges with extensive legal experience.  On paper, all those pointed to a fairer and more accountable administration of justice.  But, for it to be truly effective, it had to be fair and accountable in practice.  Otherwise, it would just be another white elephant that no one would trust.

He welcomed having binding decisions by the lower levels of both the formal and informal justice systems, noting that the Secretary-General having the discretion to pick decisions was a serious flaw of the current set up.  Continuing, he questioned as to why the Secretary-General should appoint judges for the Disputes Tribunal, as by the current recommendations, when the General Assembly elects the judges for the Appeals Tribunal, if the purpose was to ensure that judges were fair and consistent, and the judges themselves were impartial.

In that regard, addressing the Panel’s recommendation to have the Secretariat assume the responsibility of appraising judges after they were short-listed for the Disputes Tribunal and the Appeals Tribunal, he said if the Internal Justice Council had competence to identify candidates for the two tribunals, then surely it had the competence to do more.  Furthermore, he supported the flexibility of having the Mediation Division help to settle disputes, and, where appropriate, having the Disputes Tribunal be able to refer cases before mediation. 

He called for further proposals on a whistleblower initiative, so that staff could raise complaints against their supervisors and be protected from revenge attacks, which would be made in accordance with the Assembly’s endorsement of the abolition of the Panel on Discrimination and Other Grievances.  He said, thus far, whistleblower protection has been spotty at best and needed to be strengthened to deal with abusive and malicious managers.  He also supported the proposal to bolster the Panel of Counsel with more full-time staff, when it was folded into the Office of Staff Legal Assistance and the Secretary-General’s proposal for more resources to allow the Appeals Tribunal to complete its job of dealing with the backlog of cases before transition to the new system in 2009. 

Noting that, if the Organization could arrest and rectify inconsistent decisions by management, then there might be less need to proceed further to the formal and informal justice system, he said.  Currently, nobody used the current Administrative Review, because it was seen to be a delay tactic by management.  There was also a conflict of interest, because the Administrative Law Unit was the same unit that prosecuted staff afterwards.  One way to strengthen management evaluation was to place it in a neutral office, such as the Office of the Administration of Justice, and not the Department of Management.  Another way was to impose a strict deadline.  He said investigations procedures needed to give due process and be fully accountable.  He was alarmed that the United Nations tribunals would overlook international human rights conventions and noted that the Office of Internal Oversight Services (OIOS) was currently revising its Investigations Manual.  The Secretariat was also developing a set of standard operating procedures for non-OIOS investigations.  In that regard, he requested that all those investigations procedures be made available for scrutiny before 1 January 2009.

He said that important aspect of the system that the Secretary-General left out of his report was how to deal with publicity.  He saw media leaks on a regular basis and most seemed directed at staff members.  Those leaks wrongfully tarnished the reputations of the accused before there was evidence of their guilt.  He said, although there was much fanfare regarding accused staff, the Secretariat was conspicuously silent when its investigations were proven unfounded and staff were found innocent.  He concluded by saying that, although the new system might appear costly, if it improved the efficiency and effectiveness of the Secretariat, the Organization would save on hidden costs like low staff morale, inefficiency, management abuse and unjustified payouts.

MUHAMMAD A. MUHITH (Bangladesh), aligned with the statement made on behalf of the Group of 77 and China, noted that the General Assembly, in resolution 61/261, adopted comprehensive guidelines towards the long-awaited reform, at the heart of which would be a new, independent, transparent, professionalized, adequately resourced and decentralized system.  The new system would replace an outmoded, dysfunctional and ineffective system which continued to fuel discontent.  An effective resources reform would not be possible without a fair and just system of administration of justice.  While he was optimistic at the momentum and progress made so far, he was concerned that the establishment of such a robust and multifaceted system was being envisaged without the benefit of any real experience in a comparable setting.  The issues, therefore, needed to be considered with utmost caution.

Noting that one of the fundamental aspects of the administration of justice was that it should enjoy the confidence and trust, inter alia, of both staff and management, he was delighted to note the Secretary-General’s comment that he had sought to reflect in the current report, to the greatest extent possible, a united position based on the collective agreement of staff, management and of funds and programmes.  Underscoring the undeniable need for education and training for the successful operation of a new system, he said intensive training should be provided to all involved persons, which should be followed up by thorough monitoring and evaluation.  Emphasizing that resolution 61/261 expressed concern at the lack of training or qualifications of those serving the administration of justice, he expected detailed information on training and education aspects that were supposed to be dealt with in 2008, and related resource requirements.

After studying with interest the report on the activities of the Ombudsman, he believed that the Office had been ably providing a mechanism to United Nations staff for informal resolution of employment-related conflicts.  Since starting its operation in 2002, he said the ever-increasing number of cases submitted to the Office for resolution testified to the necessity of the Office as a catalyst for change.  Noting that resolution 61/261 emphasized that the role of the Office was to report on broad, systematic issues, he was concerned with the recommendations of the Office that remained unaddressed, saying they could be sources of conflict.  Important systematic issues included:  the staff selection and recruitment procedure, which lacked transparency and had the potential to foster deep satisfaction; the lack of sufficient integration between the two major objectives of the mobility programme, such as development of a multi-skilled and versatile staff and opportunities for varied carrier opportunities for them; and current contractual arrangements which, as identified by the Office, remained a major source of concern. 

He looked forward to receiving information from the Secretariat on these issues.  Other issues he looked forward to discussing in detail were:  the scope of the new system; the management of the evaluation process; placement of management evaluation in the Secretariat; the level of the Executive Director; the nomination and selection of judges; the post and resource requirements; and the administration of justice in peacekeeping.

ALEJANDRO TORRES LEPORI ( Argentina) supported the position of the Group of 77 and Rio Group and said that his country supported the need to create a transparent and independent system of internal justice.  The recommendations of the Redesign Panel had provided a concrete basis for improving the system and bringing it in line with international standards.  The Assembly, through resolution 61/261, had decided to reform the internal justice system.  Now, it was essential to set the machinery needed to implement that text.  The new system must start functioning in 2009.

The Secretary-General’s proposals entailed an increase in resources, but the cost was fully justified by the need to create a new system of administration of justice, he continued.  He supported strengthening the informal justice system, which would save costs and speed up the process.  He also supported decentralizing the informal justice system and creating capacities in Latin America.  The system should have the necessary resources to respond to grievances within the timeline to be set by the Assembly, and the efforts to manage and administer the huge change should be headed by an Assistant Secretary-General.  The Office of Staff Legal Assistance would fulfil essential duties, and his delegation would consider carefully the Advisory Committee’s comments in that regard, to see how they would affect those functions.  He was also in favour of professionalizing the Appeals Tribunal. 

Regarding the scope of the system’s application, he was expecting with great interest the additional information on the situation of consultants and contractors, he said.  He hoped his delegation would be able to consider favourably in the future the increase in the scope of the system.  He was also awaiting with interest the points of agreement resulting from the work of the Sixth Committee on the administration of justice reform.  That would provide useful input for discussions.  And finally, the Fifth Committee should consider during the current session the exceptional transitional measures to eliminate the backlog in the system.

ANDREY V. KOVALENKO ( Russian Federation) said that, although the Sixth Committee had not yet come to specific conclusions on the administration of justice reform, his delegation believed it was important for its input to be incorporated in the work of the Fifth Committee.  The Assembly, at this juncture, had only supported the concept of establishing a new justice system, but its details still needed to be determined.  All options were still on the negotiating table.  He supported a two-tiered system of justice, abolishing existing advisory bodies.  In that connection, he had a question:  Why was the United Nations Administrative Tribunal -- being transformed into an appellate tribunal --maintaining its status in respect of its interaction with the organizations that were using its services on the basis of agreements?  What prevented those organizations from renegotiating those arrangements and using the two-tiered system?

As for the statutes, it was important to make a determination on a number of core parameters, including the scope of the system, jurisdiction and the procedures for judge selection, he continued.  The criterion in determining the scope should be the lack of other means of recourse, for example, in national courts.  Aside from the Secretariat staff, the scope should include non-Secretariat officials and experts on mission.  The organization had a number of obligations towards those persons, and they had no legal recourse to other forums, in particular in connection with the Organization’s immunities.  As for the proposal to extend the system to individual contractors, he believed it was necessary to be prudent in that regard.  Those persons had recourse to arbitration proceedings and were dealing with activities that involved significant commercial risk.  Thus, the inclusion of contractors could lead to an unwarranted overloading of the system.  One solution, in that regard, could be giving access to the system only to those contractors who had the status of experts on mission.

Regarding subject matter jurisdiction, he said that the new system should include the disputes arising from the Organization’s violation of its obligations towards individuals with recourse to it, he said.  To speak only of violations in employment terms would unjustifiably narrow the Tribunals’ jurisdiction and restrict the rights of persons involved.  That question related to the issue of the Organization’s privileges and immunities, as well. 

Regarding the procedures for the appointment of judges for both Tribunals, he said it was important to make sure that judges were appointed and removed only by the General Assembly.  Their appointment by the Secretary-General would not be fully appropriate and could lead to a conflict of interest.  It was also important to give serious consideration to the issue of whether one or three judges should sit on the Dispute Tribunal.  On the one hand, consideration of cases by three judges could delay the process and make it more costly.  On the other hand, that would satisfy the principles of collegiality and representation of various legal systems.  The compromise that had been proposed by the Secretary-General -- consideration of procedural questions by one judge and cases on merit by three -- looked feasible. 

He supported, in general, the proposals on strengthening the system of informal justice and delineation of duties of the formal and informal systems, he said.  The Ombudsman, like the judges, should be appointed by the Assembly.  Member States still needed to take decisions on the legal assistance for staff.  The lack of such assistance and the use of professional lawyers by the United Nations placed complainants in a sensitive situation and disrupted the principle of “equality of arms”.  The issue needed to be scrupulously analysed from the standpoint of procedures and amount of resources and posts requested.  On disciplinary issues, he said that there should be a clear division of responsibility between OIOS -- the entity that should continue investigating only category I (the most serious) violations -  and other entities.  He believed all the questions in connection with the procedure of OIOS investigations and its interaction with national law enforcement bodies should be presented to the Assembly as a separate report of the Secretary-General.  He also did not share the Secretary-General’s view that the Department of Safety and Security should be given investigative functions. 

On the financial parameters of the new system, he said that the Secretary-General’s proposals were quite costly, and his delegation would seek to reduce the financial burden of the proposed system on Member States, making it as cost-effective as possible.

YASUO KISHIMOTO ( Japan) said that as agreed in resolution 61/261, the informal resolution of conflicts was the crucial element of the system, and all possible use should be made of the informal system to avoid unnecessary litigation.  Five years’ experience with the Ombudsman Office made it clear that it was the right approach.  It was presumed that strengthening the informal justice system would bring significant positive results in the near future.  At the same time, one should not overlook the systemic problems in human resources management.  Even with the best possible internal justice system, the Organization would fail to achieve a fair and reliable administrative order if the rules and procedures that had been causing trouble were left in place.  In document A/62/311, the Ombudsman had concluded that promotion and career-related issues had been at the heart of the largest proportion of complaints from staff, and that the current staff selection system and drastic delegation of authority to programme managers were the root causes of problems.  It was worthwhile to focus on those observations during informal discussions.  He also wanted to know what action had been taken or would be taken by the Secretary-General, in that regard.

The proposal regarding the number of posts and their grade went far beyond what was actually needed, he said.  The current Ombudsman had succeeded in extending outreach by using electronic means of communication and making field visits.  In light of the uncertainty that made it difficult to clearly project the volume of cases that were likely to come before the new system, it seemed quite reasonable at this early stage to integrate the regional functions of the system and model the outreach activities of the current Ombudsman.  He supported the ACABQ recommendation that the system should be implemented in a prudent and gradual manner.  It would be appropriate to consider staffing adjustments at a later stage, by confirming the effectiveness and actual workloads of the new system as part of the Assembly’s continuous review. 

Specifically, the role of the Staff Legal Assistance Office would overlap with that of the Ombudsman, he said.  The new scheme proposed by the Secretary-General could deprive staff of their autonomy in that area and create undesirable conflicts of interest.  A wide variety of options for meeting the needs of staff should be considered.  He also believed that the proposal on extending the system coverage to non-staff should be considered at a later date.  The formal system should be as efficient as possible.  It was also important to centre on the informal system, as it aimed to recover the trust of staff and managers.  The management review could start with the initial step of informal conflict resolutions.  Managers should be accountable for the administrative decisions they took.  Creating a unit for management review did not help make that process fair or reliable.  On the contrary, it might diminish the accountability of managers, by blurring their responsibility.

It was unrealistic to expect that the entire backlog in cases would be cleared by the time the new system commenced operation, he added.  The Secretariat should provide justifications for the additional resources it requested.  Convening an additional session of the Administrative Tribunal and remuneration for its members should be scrutinized in terms of its feasibility and effectiveness.  As for the cost-sharing arrangements, the burden should be divided appropriately among those who used the system.  The funds for the use of the system came not only from the regular and peacekeeping budgets, but also from extrabudgetary resources.  That meant that an appropriate cost-sharing arrangement should be based on the composition of the staff.  If the majority of users in some duty stations were staff funded from extrabudgetary resources, the cost should be borne mostly by those who contributed those funds.

MICHAEL SCANLON (United States) wholeheartedly supported the Secretary-General’s stated goal of establishing a new system of internal justice, emphasizing that the need for fundamental reform was clear and that reform measures recommended by the Fifth Committee should be fair to both staff and management.  It was essential that the Committee’s recommendations for implementing reform reflected a broad consensus.  He supported, in principle, that the proposed structural changes in the Office of the Ombudsman, coupled with appropriate assistance from the Office of Staff Legal Assistance, would help create a more efficient and cost-effective informal system, provided certain parameters were maintained.  Reform efforts should result in a system where the majority of workplace issues could be resolved without the need for formal litigation.

He was concerned that the Secretary-General’s estimates of the attendant financial implications of the new system were low and would be significantly higher if all proposed elements of the system were fully staffed and operational.  He agreed with the ACABQ’s description that the newly proposed system was “elaborate and complex”, and believed that the success of the system would depend upon an approach that implemented all elements of the proposed new system, but not necessarily to the same degree proposed by the Secretary-General.  Informal mediation should be emphasized over formal litigation in the new system and professional and volunteer staff should be involved in the new system, which should address the needs of its staff before considering expending resources to extend benefits to non-staff.

Next, he agreed with ACABQ that there was no basis for extending access to the informal system beyond current and former staff members to others, such as consultants and contractors.  There were other ways to ensure that those personnel had an effective and fair opportunity to address their grievances.  The Secretary-General should provide alternative suggestions for how to improve the current procedures for those non-staff personnel before the Committee considered opening up access to them.  Furthermore, he did not see the necessity for allowing staff associations to be allowed to file the equivalent of class action lawsuits on behalf of their members.  Such claims would delay expeditious resolution of individual claims and would overload the system, which should focus on the claims of individual employees.

He called for a phased expansion of the Office of the Ombudsman, with an initial increase in the New York, Geneva and Nairobi offices, as well as at peacekeeping operations in the Congo and the Sudan.  Any future expansion should be linked to ability to manage the caseload.  He did not fully agree with all of the Secretary-General’s proposals regarding the Office of Staff Legal Assistance, concurring with the ACABQ’s view that not all the new posts in that Office requested by the Secretary-General were necessary.  The Office’s legal professionals, while providing legal assistance and support to staff, should not serve as counsel of record.  He said that, although he accepted that the current system for assisting staff could be strengthened, legal assistance should not involve advocacy in a particular case.  Rather, the Secretary-General should explore other options for improving staff legal representation, such as incentives for staff to more effectively utilize the existing system to obtain representation by staff members on a voluntary basis, supported and assisted by an expanded Office of Staff Legal Assistance.

Agreeing with ACABQ on the need to exhaust all administrative remedies prior to commencing formal proceedings, he asked whether there was a call for the creation of a Management Evaluation Unit, or would that add costs and delays as the Advisory Committee had indicated.  He believed the current administrative review should be improved and not replaced.  He endorsed ACABQ that current administrative review process should remain in place, but that the timelines for completing the process should be shortened and diligently enforced by the Secretary-General.

Taking up the composition of the Dispute Tribunal, he disagreed with the Secretary-General’s proposal that a panel of three judges hear a case at the first level -- one judge should suffice.  That was consistent with widespread State practice where the initial proceeding was before a single judge, but appeal of that proceeding was before a three-member tribunal.  He also believed it sufficient at this early stage that the Dispute Tribunal should begin with one judge each in New York, Geneva and Nairobi, with more judges added by dictation of caseloads.  Further, he said that judges for the Appeals Tribunal should be convened as needed, and not be on full-time standing tribunal.  Judge selection should be impartial and transparent and should produce the requisite number of highly qualified and experienced judges.

Mr. AL-SADAH ( Qatar) associated with the Group of 77 and China.  One of the more notable aims of the United Nations was to support justice and primacy of law.  It behoved the United Nations to set an example in that respect.  Its justice system must be independent, transparent, professional, decentralized and adequately resourced, allowing United Nations staff a just solution in consonance with those principles.  Adequate resources to establish such a system fully before 2009, as provided by resolution 61/261, must be adopted. 

The justice system relied on judges; therefore, the proposal to establish the Internal Justice Councilwas useful to provide a list of qualified people to be judges.  In that regard, he noted that the Secretary-General must be the one to appoint judges and proper remuneration be in place to attract the best candidates.  He stressed the useful and constructive role of informal system of justice, as a counterpart to the formal system.  He said enough resources should be allowed for the establishment of a mediation section in an Office of the Ombudsman.  He called for more details on the standards of establishment of a mediation division, which should be used for evaluation of management to reduce grievances, but should be time-bound to reduce the use of resources. 

Ms. BARCENA, Under-Secretary General for Management, highlighted the statement made by Pakistan on behalf of the Group of 77 and China, which recognized that the recommendations in resolution 61/261 provided a clear road map and the key features of a new system, and that the Secretary-General’s report provided a good basis for discussion.  She took into account that more information was needed on both formal and informal systems.

On the scope of the new system, she said the Secretary-General’s report did not include coverage for 40,000 non-staff members, because there was no ground to calculate how much their inclusion would represent.  Current financial implications were based on actual staff covered by the administration of justice.  On the number of registries and selection of judges, she said it was a very crucial element, and such issues would hopefully be jointly clarified.  Regarding cost-sharing arrangements, she said there was an improvement in participation from funds and programmes not reflected in costing, and said that whether their participation could be funded by extrabudgetary resources was still being looked into.  She recognized that the resources needed were high and concurred with ACABQ that the implementation should be gradual, but should not be attached to a piecemeal scheme “that would take us backward instead of forward”.

The Office of the Ombudsman had a neutral function to act on behalf of management or staff equally, she said.  However, the Office of Staff Legal Assistance was meant to assist only distressed staff.  There was, therefore, a distinction between the two aforementioned Offices.  Noting Singapore’s comments on the Panel of Discrimination and Other Grievances, she said the Panel would go to form part of the Office of the Ombudsman, not the Panel of Counsel which should be embodied in the Office of Staff Legal Assistance.  That unit would have an important role as a transparent, independent and accountable entity.  Further discussions regarding those reforms would be taken up during informal consultations.

Mr. SAHA said that the report on the administration of justice was not an easy one from the technical point of view, taking into account the number of documents considered by the Advisory Committee.  The ACABQ had sought to make the report focused and easy to understand, and he believed it had succeeded.  The report was a considered opinion of the Advisory Committee, issued as a consensus text.  The Chairman of the Advisory Committee would be available to defend the Committee’s consensus position. 

* *** *


For information media • not an official record