Sunday, October 13, 2019

UN Pension Fund - UNPR Note - Article 48: impact of proposed amendments, 2019

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.




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

 











[1] A/2909 – Report on Judicial Review of the UNAT
[2] GA RES  678 (VII)  (1952)  paragraph 3

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