3 QUESTIONS

3 QUESTIONS

Alayne Frankson-Wallace: The independence of the internal justice system
Interview with Ms. Alayne Frankson-Wallace, Executive Director of the Office of Administration of Justice
8 Apr 2021

The Office of Administration of Justice (OAJ) was established with operational and budgetary autonomy “to ensure the institutional independence of the system of internal justice.” However, staff now perceive our internal justice system not to be independent. Do you share this view?

I do not share this view and do not agree that staff at large hold this view. The independence of the internal justice system is ensured by several safeguards instituted by the General Assembly. The establishment of OAJ is one only of these safeguards. Another one is the independence of the judges.

Candidates for judicial appointments are nominated by the Internal Justice Council, a body established by the General Assembly comprising two staff nominees, two management nominees and chaired by a distinguished jurist chosen by these four members. Judicial candidates must be professional judges of high moral character and possess substantial judicial experience in the field of administrative law. Judges are appointed by the General Assembly and are accountable to the General Assembly, which sets the terms and conditions of their appointment.

Judges are appointed for a seven-year term and enjoy security of tenure, another critical facet of judicial independence. After their term ends, judges are ineligible for any appointment within the United Nations, except another judicial post, for a period of five years, a further safeguard for judicial independence. Judges are accountable under the code of judicial conduct and must “uphold the independence and integrity of the internal justice system of the United Nations and must act independently in the performance of their duties, free of any inappropriate influences, inducements, pressures or threats from any party or quarter.”

For a system of justice to have institutional independence, it is essential that it has operational and budgetary autonomy. The General Assembly accepted the Redesign Panel’s proposal to establish OAJ, and expressly recognized the important role of OAJ in maintaining the independence of the formal system of justice. Any attempts to compromise the independence of the system would be brought to the attention of the General Assembly.

An important number of judgments of the United Nations Dispute Tribunal (UNDT) in favour of staff are very often overturned by the United Nations Appeals Tribunal (UNAT) to such an extent that staff now see UNAT as a mere political body. Do you confirm that this is indeed the case and how do you explain it?

This is not the case and the premise of the statement suggests a misunderstanding of appellate proceedings. The appeals procedure is not a second chance for a party to have a rehearing of the case filed before the UNDT. The appeals procedure is of a corrective nature, and both the Applicant and the Respondent have a right of appeal. UNAT can only overturn UNDT judgments based on specific legal grounds, as provided in its Statute. Thus, if a decision of the UNDT in favour of a staff member has been overturned by UNAT, it means that UNAT was satisfied, to the required legal standard, that the UNDT made an error of fact or law, exceeded its jurisdiction or competence, or failed to exercise its jurisdiction, as prescribed in Article 2(1) of the Statute.

Regardless of which party appeals, only cases where the above legal grounds are met will succeed before UNAT. There is no political consideration that applies to the statutory jurisdiction vested in UNAT. Therefore, in trying to understand why cases are overturned by UNAT, the focus should be on the reasons given by UNAT in each case, rather than looking at ‘win-lose’ numbers to suggest political considerations.

In some cases, staff have to wait years before getting a judgment. What are the measures that have been taken to ensure that cases are examined by the UNDT in a prompt manner?

In 2017 and 2018 there were noticeable delays in the processing of cases before the UNDT, and the number of pending cases, which included some group cases, increased:

  • On 31 December 2017, UNDT’s pending caseload had increased to 372 cases, up 31 percent from 257 on 31 December 2016. On 31 December 2018, UNDT’s pending caseload further increased, to 404.
  • In 2017, 100 judgments were issued, 55 percent less than the 221 issued in 2016. In 2018, 128 judgments were issued, 42 percent less than in 2016.

    In resolution 73/276, in 2018, the General Assembly noted with concern the number of pending applications to the UNDT and requested the development and implementation of a case disposal plan with a real-time case-tracking dashboard and performance indicators on the disposal of caseloads. It also decided not to extend the ad litem judicial position in New York, and extended the other two ad litem judicial positions and the incumbents, pending nomination of candidates for four new half-time positions by the Internal Justice Council and their appointment by the General Assembly, no later than 31 December 2019.

    In January 2019, the UNDT President implemented the case disposal plan and established disposal targets for judges. The four new half-time judges were appointed on 10 July 2019 and commenced their term. The newly composed Tribunal is making steady progress in reducing the number of pending cases which contributes to a reduction in the time it takes to process a case:
  • In 2019, the UNDT delivered 159 judgments and disposed of 389 cases, 389 being the third-highest annual disposal rate.
  • In 2020, the UNDT continued implementing the plan, delivered 221 judgments, and disposed of 350 cases. The 221 judgments (same as in 2016) is the highest number issued in a year. On 31 December 2020, 189 cases were pending with UNDT.
* Prisca Chaoui is the Editor-in-Chief of UN Today. Prisca Chaoui est l'Éditeur en chef du UN Today.
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