Note by United Nations Participants’ Representatives
to the Pension Board
Impact of 2018 proposed amendments to Article 48
2019
Summary
Even though the proposal
was not unanimous and did not represent a consensus, in 2018 the Board
proposed to amend Article 48 in an attempt to reduce the jurisdiction of the
United Nations Appeals Tribunal The General Assembly in their resolution
73/274 requested that the Pension Board “provide further analysis on the 2018
proposed amendment to Article 48 of the Regulations and Rules and Pension
Adjustment System of the United Nations Joint Staff Pension Fund and to
report thereon in the context of the next report.”
The present proposal
in the Note by the Secretary/CEO does not provide an analysis but merely
proposes to re-submit an amendment. It
fails to address the underlying concerns of the General Assembly in making
such a far-reaching change.
A historical review of
the implementation of UNAT as the competent body with the final say, shows
that Member States invested considerable time on the matter, including the need
for judicial review of decisions alleged to be in violation of the UNJSPF
Regulations and Rules, consistent with the rule of law.
The original intent of
Article 48 remains valid. The relevant
rules of international law, principles of the rules of law and requirements
of due process have to be addressed through a review process that is
independent and that avoids perceived conflicts of interest. This is the essence of judicial review. The
proposal in its present form would have the effect of removing accountability
through judicial review of the UNJSPF Secretariat and its and Board of Directors
for non-observance of all the Regulations while providing no alternative
means of recourse. The Board and its Committees would become self-policing
bodies.
The General Assembly
adopted the UNJSPF Regulations and approved the Pension Fund Rules to provide
the legal framework for administering the UN pension system. They include not only the rights of
beneficiaries but also the way in which the Fund operates. The oversight of the Fund was envisage as
entailing the inclusion of participants in the policy and decision-making
process.
The proposed amendment restricts
these rights. It adversely affects the
access of participants to legal recourse over any aspects of the management
of the Fund and is therefore fundamentally flawed.
Annex III and IV of
A/2909[1] detail the depth of
review undertaken before and at the time of introduction of the article
recognizing the right of judicial review, with which member organizations had
to agree to participate in the Fund.
According to JSPB/65/R.38
Rev 3 the justification provided by the CEO for proposing a change to the
Regulation was due to the Fund’s unsuccessful defense of two cases involving
non-observance of regulations which did not involve benefits, whereas Article
48 covers non-observance of all
Regulations, Rules and
the Pension Adjustment System. The jurisdiction of the UN Administration of
Justice System has been an integral part of ensuring the full and fair
application of the UNJSPF Regulations and Rules.
In view of the
negative impact on the contractual rights of participants with regard to
pension matters the Board may wish to withdraw the pending proposal to reduce
the jurisdiction of the United Nations Appeals Tribunal.
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Intent of
Article 48
1. In 1952
the General Assembly recommended[2] that the governing bodies
of Specialized Agencies, accept the jurisdiction of the United Nations
Administrative Tribunal in matters involving applications alleging
non-observance of Pension Fund Regulations.
2. Among
the arguments being put forward for amending Article 48 is “to clarify the
scope of the jurisdiction of the United Nations Appeals Tribunal (UNAT) in
regard to decisions of the Standing Committee of the Pension Board.” In fact, the objective is to limit
the jurisdiction conferred by the General Assembly in adopting Article 48.
3. As an
oversight body answerable to the General Assembly, the Board and its Standing
Committee are not legislative and do not share the General Assembly’s exclusion
from judicial review, and never have.
4. In
Judgement No. 404 (1987) the UNAdT
examined an issue of acquired rights in amending an article of the
Regulations and found, “The Tribunal observes that the Fund is under
an obligation to maintain an effective and just retirement pension system. This
system, being of a statutory nature may, of course, be altered from time to
time, without retroactive effect. But these modifications must not be
arbitrary. They must be in conformity with the object of the pension system.
They must promote implementation of the principles laid down in the Charter of the
United Nations (Article 101, paragraph 3) …”
5. It is
wrong to assert that this amendment is consistent with the past practice of 70
years. It is significant that no
“analysis” of either the genesis of Article 48 in the General Assembly’s
deliberations or the judgments of the former UN Administrative Tribunal has
been undertaken. There has never been any exclusion from review recognized in
the past.
6. The
proposed change would effectively deny recourse to any participant who had a
claim to how the Regulations and Rules were being applied unless it concerned a
personal entitlement. While these form the majority of claims, they are not by
any means the only claims.
7. The unintended
result of the proposed amendment excluding any claim involving the administration
of the Pension Fund is that in place of access to judicial review, recourse
will be made instead to the General Assembly, which is neither efficient nor
practical.
Conflict of
Interest
8. The
most basic example of conflict of interest is in having individuals or
administrative bodies review their own decisions. The proposed amendment does not indicate how
it will avoid this problem since under the proposed article, the Standing
Committee and the Board will be self-monitoring.
9. It is
significant that the Secretary/CEO recognizes, that this issue has arisen only
because some decision makers were dissatisfied with recent judgments by the
UNAT overturning their decisions. This
is not a compelling or credible reason for changing the regulatory framework.
Participant’s rights under the UNJSPF
Regulations
10. The
rights of participants as set out in the Regulations and Rules include the
entitlements provided by the Fund but they also include rights of
administration and oversight of the Fund’s activities. The Secretary/CEO would seek to have any
challenge to his “regulatory “authority precluded. This is frankly contrary to notions of
justice as well as best practices.
11. Participants
have in the recent past raised numerous issues of concern on behalf of the
staff members they represent inter alia:
a. Exclusion
of elected participants’ representatives from the work of the Board;
b. The
Standing Committee has refused to meet upon request of UN Participants’ Representatives
to provide a timely review of the OIOS audit;
c. The
Standing Committee refused to meet when a member asked them to review the
Board’s decision to remove a member from the BWG);
d. The
Standing Committee has refused to meet and provide oversight in accordance with
the Rules of Procedure of the Board.
12. By
precluding any possibility of review of these or similar decisions on the
pretext that there should be no review of governance issues effectively creates
a system that is not accountable for its decisions. There are undoubtedly many
issues concerning the governance of the Fund that need to be studied and
addressed. But ad hoc amendments to the Regulations aimed at excluding
accountability are not indicative of a serious attempt to address these
issues.
13. The
Standing Committee is not an expert committee and has no particular capacity
for entering into legal determinations. There
are no particular safeguards envisaged for due process or representation. It is therefore unclear why the article should
be amended to show that demands should be made to the Standing Committee, as
proposed.
Conclusion
CC
14. Based
on our review which does indeed show that there would be a harmful impact on
stakeholders of the Fund, the Board
may wish to withdraw its proposal to amend Article 48 of the Fund’s Regulations
and request the Secretary-General to likewise withdraw the proposed amendment
to the statutes of the UNAT that would limit its jurisdiction over certain
regulations, rules and the pension adjustment system of the UNJSPF
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