Sixty-third General Assembly

Fifth Committee

19^th Meeting (AM)

BUDGET COMMITTEE TAKES UP NEW UNITED NATIONS ADMINISTRATION OF JUSTICE SYSTEM

Speakers Express Concern at Delays, as January

2009 Deadline for Introducing Framework Approaches

With the 1 January 2009 deadline for the implementation of a complete overhaul of the United Nations system of justice fast approaching, the Fifth Committee (Administrative and Budgetary) this morning considered the elements of the new framework, that still require the General Assembly’s decision, including the statutes of the new Disputes and Appeals Tribunals, the scope of access to justice and the issues of the awarding of costs and legal assistance to staff.

Speakers emphasized the importance of a properly functioning system of dealing with internal grievances and disciplinary cases, which, as noted by Australia’s representative (also speaking on behalf of Canada and New Zealand), underpin all efforts to strengthen accountability, oversight and human resources management at the United Nations.  Given the urgent need for that reform, most speakers regretted “numerous delays and tasks outstanding” and insisted that exceeding the deadline of 1 January 2009 was “not an option”.

Commitment to establishing a fully functional system of justice by the agreed date was expressed, in particular, by the representative of Antigua and Barbuda, on behalf of the “Group of 77” developing countries and China.  The Assembly, in two resolutions, had provided a clear road map and defined key features of the new system.  He was particularly concerned that all new posts approved last December remained vacant, especially the position of Executive Director of the new Office of Administration of Justice.  For the new system to be in place by the new year, pending issues regarding the statutes of the two new Tribunals as well as issues pertaining to the appointment of judges must be elucidated.

Similar sentiments were expressed by the representative of Mexico, who, speaking on behalf of the Rio Group, stressed that the new system of justice must start operating in January 2009, in accordance with relevant resolutions.  He also regretted the delay in preparations for its establishment, as well as the failure to fill any of the 30 posts authorized for the Office of the Administration of Justice.  He further noted that delays in the development of transitional procedures, a code of conduct for legal practitioners, terms of reference for the registries and plans for training and communications for the new system contributed to the overall delay.

The system would evolve once it began functioning, he said.  To start, it would be good to conclude the articles of the statutes on financial issues, as well as those regarding contracts and conditions of service of the staff.  It was, therefore, urgent to appoint the Executive Director of the Office of Administration of Justice.

The staff were eager to have the new system begin on 1 January 2009, especially after its inception had been deferred for one year to allow enough preparatory time before implementation, said the President of the Secretariat’s Staff Union.  The failure of the Secretary-General to meet his responsibilities in a timely manner smacked of either indifference or incompetence or “just plain foot dragging”, when compared with the intensive process of recommending judges, which had been undertaken by the Internal Justice Council.  The staff had trust in that body, which, he suggested, should be requested to take up the task of interviewing and vetting candidates for the Office of Administration of Justice.

In order to allow the new justice system to start on 1 January 2009, as intended by the Assembly, the Committee might wish to consider the option of offering vacant posts in the Office of Administration of Justice to the remainder of the candidate judges who had been recommended by the Internal Justice Council, after the 12 judges had been selected, he said.  Should the new system not be implemented by January 2009, the Committee might wish to consider requesting the Secretary-General to allow the United Nations staff to avail themselves of the jurisdiction of the United States, in accordance with Article III of the Headquarters Agreement.

On outstanding issues, the United States representative advocated caution “in the first instance”, while providing Member States with the opportunity to revisit them as experience was acquired. In particular, he supported the continuation of the long-standing policy of imposing a cap on the award of damages.  He was very concerned that the proposals to remove the cap and allow interest and costs were not only unnecessary, but also exposed the United Nations to unlimited financial liability.  With respect to the scope of the new system, it was necessary to be careful not to move “too far and too quickly into unknown areas”.  Trying to accommodate all interests, particularly at this early stage, was inappropriate and was likely to overload the system.

Regarding the scope of the new Tribunals, France, on behalf of the European Union, reiterated the two-step approach the Union had proposed in the Sixth Committee (Legal).  The first priority was to focus on establishing a new internal justice system that would, at a minimum, cover individuals with access to the current system.  Then, the United Nations must ensure that effective remedies were available to all other categories of personnel and consider what types of recourse would best achieve that end.  Adequate transitional measures should ensure continuity of the work of the judiciary.  That was essential to build confidence at the early stages of implementation.

On the transitional measures, Japan’s representative stressed the need to ensure an efficient and legally consistent approach.  Transferring all cases pending to the United Nations Dispute Tribunal would automatically produce different resolutions of the pending cases.  It would be unjust for some cases to be disposed of in the current system, while others would be considered under the new one, due to a delay in completing the current caseload.  It was necessary to scrutinize the option of continuing the use of the current system until the backlog had been cleared.

Under “other matters” today, several speakers also commented on the slow progress of a construction project at the United Nations Office in Nairobi, Kenya, and voiced concern regarding inconsistent answers provided to Member States during informal consultations on that issue.  Several speakers underscored that, to ensure accurate recording, the issue should be considered in formal meetings from now on.

Also speaking today were the representatives of Switzerland (also on behalf of Liechtenstein), India, Argentina, Russian Federation, Angola (on behalf of the African Group), Kenya, Brazil, Cuba, South Africa, Botswana, Nigeria and Senegal.

Reports were presented and answers provided by Angela Kane, Under-Secretary-General for Management; John Barkat, United Nations Ombudsman; Collen Kelapile, Vice-Chairman of the Advisory Committee on Administrative and Budgetary Questions (ACABQ); and Michael Adlerstein, Assistant Secretary-General for the Capital Master Plan.

The Committee will hold its next meeting at a date to be announced.

Background

The Fifth Committee (Administrative and Budgetary) met this morning to consider further steps required to implement the General Assembly’s decision, in March 2007, to carry out a complete overhaul of the United Nations system for dealing with internal grievances and disciplinary cases.  In December 2007, the Assembly established the basic framework for a new, independent, transparent, professional and decentralized system for the administration of justice to cover staff in the global Secretariat, as well as separately administered funds and programmes, to be put in place by 1 January 2009.

The new system places greater emphasis on resolving work-related disputes through informal means, such as mediation, and provides for a single integrated Office of the Ombudsman for the United Nations Secretariat, funds and programmes (see A/63/283 below) with offices in Bangkok, Geneva, Nairobi, Santiago and Vienna, as well as capacity in the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC), the United Nations Mission in Liberia (UNMIL) and the United Nations Mission in the Sudan (UNMIS).

It will also replace the current Joint Appeals Board and Joint Disciplinary Committees in the United Nations system with a single institution, the United Nations Dispute Tribunal.  The Tribunal will be as court of first instance, when informal means for resolving disputes are unsuccessful.  Comprised of professional judges making binding decisions, the Tribunal will have registries in New York, Geneva and Nairobi.  Decisions by the Dispute Tribunal may be appealed by either staff or administration to the United Nations Appeals Tribunal, which will replace the current Administrative Tribunal, and will hold two annual sessions in Geneva and New York.

Several crucial decisions remain to be taken by Member States during the current session, foremost among them the adoption of the statutes of the two Tribunals.  Transitional measures must also be decided upon to help ensure a smooth changeover to the new system.

The first report in a series of documents on the administration of justice (document A/63/314) contains options for the delegation of authority for disciplinary matters and a detailed plan to phase in limited delegation starting with selected peacekeeping missions.  In addition, the document presents the idea of a staff-funded legal assistance scheme and addresses the use of information and communications technology in support of the administration of justice; mechanisms for formal removal of judges; and conditions of service for judges under the new system.

The Secretary-General states that it is important to post additional personnel (financed from within existing resources) in support of limited delegation of authority for disciplinary matters at MONUC, UNMIL and UNMIS.  He also stresses the importance of adopting the statutes of the two Tribunals, appointing the judges, approving amendments to Staff Regulations and deciding on his proposals for transitional measures (see A/62/782 and A/63/253 below) as soon as possible to meet the mandated implementation date of 1 January 2009.

According to the report on the activities of the Ombudsman during the period from 1 August 2007 to 31 July 2008 (document A/63/283), 670 new cases were opened during that time, demonstrating that informal resolution is increasingly recognized as a tool to resolve conflict within the United Nations.  Most cases came from Headquarters, while peacekeeping missions were underrepresented.  Once new regional branches give greater access to mediation, the percentage of visitors outside New York is expected to increase.  Most cases are brought by those serving in Professional capacities or above, although they represent only 30 per cent of staff.  Among systemic grievances reported by the Ombudsman were those relating to recruitment processes, the G-to-P examination, delays in processing staff requests and harassment.

The document also provides an overview of measures currently in development for the transition to a single integrated and decentralized office that would serve the United Nations Secretariat, funds and programmes.  Various entities constituting the integrated Office of the Ombudsman have been trying to harmonize standards and working methods, identify common interests, build synergies and work towards the development of common policies for the Office, among numerous other measures.  Looking towards the future, the report notes the importance of consistency and coherence in the expanded set-up; clarification of roles in the system of justice; the role of the new Mediation Division; setting bases for the identification of systemic issues; and monitoring of confidentiality.

According to the report on the outcome of the work of the Joint Appeals Board during 2006 and 2007 (document A/63/211), all four Appeals Boards disposed of more appeals in 2007 than in 2006:  by 17 cases in New York (17 per cent); by 16 cases (59 per cent) in Geneva; by 2 cases (66 per cent) in Vienna; and by 6 cases (56 per cent) in Nairobi.  About 84 per cent of unanimous recommendations of the Joint Appeals Board were accepted by the Secretary-General (fully, or partially); and 88 per cent of such recommendations were accepted in 2007.  The Secretary-General, however, maintains the discretionary authority to reject unanimous recommendations of the Joint Appeals Board in cases where he finds that it is in the interests of the Organization to do so.

The document also contains statistics on the disposition of cases and work of the Panel of Counsel.  In 2007, 339 new cases were brought to the Panel in New York, compared with 294 cases in 2006.  Of those 339 cases, 240 went through the formal appeals processes and 99 were dealt with informally.

A letter dated 18 July 2008 from the President of the Administrative Tribunal addressed to the President of the General Assembly (document A/63/253) presents information on the recruitment of judges for the new Tribunals as of 21 July 2008 and expresses concern at the absence of appropriate transitional measures in the draft statutes of those two bodies.  The latter include the expiration of terms and eligibility for reappointment of current members of the Administrative Tribunal to the new Appeals Tribunal, and requirements for positions on the new Tribunals. 

Two other reports before the Committee (documents A/62/782 and A/62/748 and Corr.1) contain further information on the new system.  The documents contain the draft statutes of the two Tribunals, as well as additional information on categories of non-staff personnel and on how the United Nations Dispute and Appeals Tribunals will function.

A/62/782 also discusses transitional measures to the new justice system, including necessary resources for the biennium 2008-2009 in the amount of about $1.73 million.  The Secretary-General proposes, among other things, that all cases that are not completed in the current system be transferred to the Dispute Tribunal, which would be strengthened during the first year to be able to handle this additional caseload.  Input was solicited from staff representatives through the contact group on the administration of justice, established at the twenty-eighth session of the Staff-Management Coordination Committee, in preparing these documents.

In a letter dated 27 October (document A/C.5/63/9), the President of the General Assembly transmits to the Fifth Committee the draft statutes of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal, as agreed upon by the Sixth Committee (Legal). 

Among the matters that require the Fifth Committee’s attention, the document lists the question of whether the Dispute Tribunal shall be competent to pass judgement on applications by staff associations; arrangements concerning the transition of cases filed before 1 January 2009; whether former judges should be eligible for subsequent appointments within the United Nations; and the extent to which the Dispute Tribunal should have the power to order compensation, interest and costs.  The Committee is also expected to consider whether applications alleging non-observance of the regulations of the Pension Fund and applications filed against a specialized agency should be considered by the Dispute Tribunal; and whether the Appeals Tribunal may grant compensation for procedural delay when it remands a case to the Dispute Tribunal.

Finally, the Sixth Committee has recommended that the resolution by which the Assembly will adopt the statutes of the two Tribunals should contain a paragraph drafted as follows:  “Affirms that the United Nations Dispute Tribunal and the United Nations Appeals Tribunal shall not have any powers beyond those conferred under their respective statutes”.  The Sixth Committee further recommends that the resolution provide for a review of the statutes of the Tribunals by the Assembly, after their entry into force, in light of experience gained.

Contained in a letter from the President of the General Assembly addressed to the Chairman of the Fifth Committee (document A/C.5/62/27) are preliminary observations on the draft statute of the United Nations Dispute Tribunal by the members of the Ad Hoc Committee on the Administration of Justice, which was established to work on the legal aspects of the new system, taking into account the results of the deliberations of the Sixth Committee (Legal) and relevant decisions of the Assembly.

In its fortieth report on the programme budget for the biennium 2008-2009 (document A/62/7/Add.39), the Advisory Committee on Administrative and Budgetary Questions (ACABQ) recommends approval of the Secretary-General’s proposal to transfer all pending cases to the Dispute Tribunal once the new system is in place.  It also recommends approval of the strengthening of the Dispute Tribunal through the addition of three ad litem judges for a 12-month period following its establishment, to clear the backlog.  Noting that the Secretary-General proposes to place one ad litem judge and three registry staff at each of the Dispute Tribunal locations, ACABQ recommends that, in allocating additional capacity, the Secretary-General take into account anticipated distribution of cases.

Regarding payment of an honorarium for judgements of the United Nations Administrative Tribunal, ACABQ believes that the question of judges’ compensation is a matter for the General Assembly.  However, as the Assembly will only take up the proposal during its sixty-third session, it may be too late for approval of such payment to impact the number of cases handled in 2008.  The Assembly must decide if it wishes to approve the payment of an honorarium in the event that the current system continues beyond 1 January 2009.

The Advisory Committee recommends appropriation of the resources requested by the Secretary-General for the transitional measures, subject to the adoption of the statutes of the two Tribunals, election and appointment of judges and the Assembly’s decision concerning the payment of an honorarium to the judges of the Administrative Tribunal.  The Secretary-General should ensure that the current system continues to function properly until the new one becomes operational.  Should the introduction of the new system be delayed beyond 1 January 2009, the resources to continue the current system and clear the backlog should be absorbed from within existing provisions for the administration of justice for the biennium 2008-2009 and reported in the second performance report.

In its most recent report on the administration of justice (document A/63/545), ACABQ notes that the new system may not be ready for implementation in January 2009 and emphasizes that every effort should be made to complete the required preparations as a priority issue.  The Assembly should request the Secretary-General, as necessary, to update the timeline for the implementation of the new system of internal justice.  Timely appointment of an Executive Director of the Office of Administration of Justice is essential for providing leadership to direct preparations for the launch of the new system as soon as possible after the adoption of the Tribunals’ statutes.

Noting the increase in the number of disciplinary cases, from 72 in 2006 to 173 in 2007 and 277 in 2008, the Advisory Committee points to the need to monitor and analyze such trends on an ongoing basis.  The absence of any explanation as to the underlying causes of the increased number of new cases, as well as the variations in the time required to complete them, is of particular concern, in view of the fact that the report of the Secretary-General is devoted largely to proposals for dealing with such cases.  ACABQ emphasizes the need to urgently address the backlog of disciplinary cases, using available resources as efficiently as possible.

The Advisory Committee is of the view that the Secretary-General’s proposals on limited delegation of authority are incomplete and do not fully respond to the Assembly’s request, as they neither provide “an assessment of possible implications for due process rights of staff members”, nor present “options for delegation of authority for disciplinary measures”.  The Secretary-General has also not fully evaluated the option for limited delegation of authority from the point of view of its effectiveness or cost, including the additional resources that would be required at Headquarters to deal with more serious remaining cases in an expeditious manner.

Additionally, limited data are provided on the number of cases opened and disposed of in peacekeeping missions, and no estimate is provided of how many minor cases would be processed at the mission level or continue to be handled at Headquarters.  The basis for the resources proposed for each mission is, therefore, not clear.  Requests for such resources should be based on estimates of the workload and tasks that would actually be carried out by the staff once on board.  ACABQ recommends that the Secretary-General be requested to submit a new proposal to the Assembly at its resumed session, including a variety of options, with full costing.

ACABQ notes that, should a staff member decide to contest a disciplinary measure at a mission or office away from Headquarters, such decision would be subject to a management evaluation conducted by the Under-Secretary-General for Management, with the assistance of the Management Evaluation Unit and the manager who made the contested decision.  On the basis of such an evaluation, the Under-Secretary-General for Management could correct inappropriate or improper decisions, or provide appropriate remedies.  If circumstances merit it, the Under-Secretary-General for Management could also contemplate withdrawal of delegated authority.  Given that the Assembly did not specifically confer such a role to the Under-Secretary-General for Management, the Advisory Committee considers that the Assembly may wish to clarify the potential role of the Under-Secretary-General in the management evaluation process, as well as the independence of the Management Evaluation Unit.

The Advisory Committee does not agree with the suggestion that cost-sharing arrangements with the funds and programmes be determined on the basis of actual cases disposed of, rather than the “headcount” of staff.  Accordingly, ACABQ recommends that the Secretary-General be requested to pursue discussions with the funds and programmes on cost-sharing arrangements based on headcount, as originally envisaged.  The Advisory Committee expects those negotiations to be concluded expeditiously.  It also expects the Secretary-General to report on the results of cost-sharing negotiations relating to the Office of the Ombudsman. 

ACABQ recommends approval of the Secretary-General’s proposals regarding the judges’ compensation.  On the removal of judges, it notes that, according to the Secretary-General’s proposals and clarifications, a panel of external experts, established by the Dispute or Appeals Tribunal, would investigate allegations of a judge’s misconduct or incapacity, consistent with the practice of administrative tribunals of other international organizations.  The panel’s report would be reviewed by the entire Tribunal, with the exception of the judge under investigation and, if the opinion were unanimous that the allegation was well founded, the President of the Tribunal would report the matter to the Assembly and request removal of the judge.

As proposed new staff regulations are to come into effect simultaneously with the implementation of the new system of justice on 1 January 2009, contingent upon the Assembly’s decisions on the remaining issues, the Advisory Committee recommends deferring consideration of proposed revisions to staff regulations.

The Advisory Committee also reiterates its position that formal provision of legal assistance by the Organization should be complemented by some form of staff participation or contribution, to ensure that staff has a stake in the process and to discourage frivolous litigation.  On information and communications technology, ACABQ notes the emphasis placed on using such technology to improve transparency and speed in the processing of cases, as well as on providing access to information and electronic filing of submissions.  Information and communications technology systems put into place should ensure full confidentiality, include appropriate safeguards and be designed for ease of use.

In connection with the Ombudsman’s report, ACABQ believes that the Secretary-General should report regularly to the Assembly on actions to address the Ombudsman’s findings on systemic issues.  It also points out the need to clarify respective roles of the Office of the Ombudsman and the Ethics Office as a matter of priority, and recommends that the Secretary-General ensure that updated information on conflict resolution be issued expeditiously.  Emphasizing that both formal and informal components of the system of internal justice must be effective, it further urges the Ombudsman to complete revision of the terms of reference, incorporating the new elements of the justice reform as a matter of priority, and to issue those terms as rapidly as possible.

The Advisory Committee considers that it would be helpful for future reports on the activities of the Ombudsman to include monthly data and analysis for the current period, as well as a period of five years or longer, with indicators to assess progress made.  It encourages the Ombudsman to elaborate on statistics and data based on actual work performed, without prejudicing staff confidentiality. In addition, consideration should be given to ways of measuring the effectiveness of the Ombudsman’s interventions.  The Advisory Committee expects that the report on the activities of the Ombudsman will serve as a useful information source and will allow assessment of the impact and effectiveness of the new working methods.

Introduction of Reports

ANGELA KANE, Under-Secretary-General for Management, introduced the Secretary-General’s reports before the Committee, saying that the point the United Nations was at now was the culmination of many years of discussions and external reviews, internal deliberations, negotiations with staff, painstaking formulation of proposals and intensive examination by Member States.  The new system would help fulfil the responsibility of the Organization to promote a harmonious working environment, by handling internal disputes in a fair and efficient manner.  That was just as important for management as for staff.  Beyond offering a professional system of justice, the new framework would also strengthen accountability and be a driver for better management practices.

When it decided that the new system would be implemented on 1 January 2009, she continued, it had been expected that decisions on the statutes of the new Tribunals and transitional measures would be taken at the resumed sixty-second session.  That had not happened, due to the heavy agenda of the Fifth and Sixth Committees.  The Secretariat had worked diligently to prepare for the new system.  Nevertheless, the project was behind schedule.  Some crucial elements for the new system could only be completed once the decisions by the General Assembly were in place, and the judges of the new Tribunals had come on board.  A January 2009 starting date was not realistic, in that context.

Therefore, she said it was necessary to ensure that the current system remained functional until the new one was ready to be implemented.  The Secretariat was already making preparations, to avoid any vacuum in the justice system.  In that regard, she brought the Committee’s attention to the need to maintain the capacity of the United Nations Administrative Tribunal.  The Assembly would need to take exceptional measures to ensure that certain Tribunal members whose terms were due to expire at the end of 2008 could continue in their functions.

“We are almost there,” she said in conclusion.  “This is an important management reform with many stakeholders:  Member States, the Secretariat, funds and programmes and, most of all, the staff of the United Nations.  It shows that, when we work together with a common goal in mind, big things can be achieved.”  Now, it was necessary to get past the final hurdles, so that the Organization could proceed with the implementation of the new system in the course of 2009.

The report on the activities of the Office of the Ombudsman was introduced by United Nations Ombudsman, JOHN BARKAT.  He said that, as in previous years, the Office had continued to be proactive in raising awareness of its mandate and services and had strived to reach various constituencies in the Organization.  In his first seven months in office, he had had the opportunity to address both staff and management in various fora at Headquarters and overseas during field missions.  Such exchanges were extremely important.  Among other things, he had noted a strong sense of duty and commitment among the staff across the Organization and a firm belief in the ideals and values of the United Nations.  Predominant, however, was the notion that the new system of justice must be more transparent, more efficient, better understood and more accessible to all.

Updating the Committee on the developments with respect to the measures approved by the Assembly last year to strengthen the Office of the Ombudsman and expand its capacities and reach, he noted, first of all, the creation of a single, integrated and geographically decentralized Ombudsman structure serving the Secretariat, funds and programmes.  As requested by the Assembly, the Ombudsman, the Office of the joint Ombudsperson and the Office of the United Nations High Commissioner for Refugees Mediator had intensified efforts of coordination and cooperation in order to harmonize the complementarity of their roles and services.  That also included the harmonization of standards of practices, data-collection and reporting mechanisms.  Relying on common servers and systems was critically important and would allow the entities involved to compile and compare data, identify trends and cross-cutting areas.  In an effort to refine the content and structure of its future reports, the integrated Office was currently analyzing all its previous reports in order to benefit from best practices.  The Office was also in the process of updating its communication tools and restructuring its website in the six official languages of the United Nations.  The ongoing decentralization of services to major duty stations and peacekeeping missions and the creation of the Mediation Division would require the Office to intensify its outreach and communications efforts.

As requested by the Assembly, the Office was currently in the process of revising its terms of reference, which would also incorporate the new elements of the reform, he said.  Consultations had been initiated with key stakeholders, including staff representatives and management, following which the revised terms of reference would be promulgated.

Regarding the creation of regional branches in Bangkok, Geneva, Nairobi, Santiago and Vienna, as well as the Democratic Republic of the Congo and the Sudan, he said that all new positions in the regional branches had been classified and advertised.  Applications for the selection of the Regional Ombudsmen and related staff were now being reviewed.  The Ombudsman had met with staff and management in Nairobi, Vienna and Geneva and intended to visit Santiago, Bangkok, Khartoum and Kinshasa.  The third component of the Office’s reform was the establishment of a Mediation Division in New York to provide formal and informal mediation services to United Nations and related personnel.  The positions of D-1 Chief of the Division and P-5 Mediator had been advertised.  The job description for the Administrative Assistant was still under review by the Classification Section.  A list of on-call international professional mediators was being established.  The Office of the Ombudsman was also developing standard operating procedures and working guidelines for the Mediation Division based on extensive consultations with key stakeholders.  While expecting to have identified candidates for relevant positions in the first quarter of next year, the Office had trained experienced mediators who could handle mediations as might be needed.

Vice-Chairman of ACABQ COLLEN KELAPILE introduced that body’s reports.  On the backlog of cases, he said that, despite the additional resources provided by the Assembly, progress in that regard had been affected by the exceptionally large number of new cases filed in the first half of 2008, in particular disciplinary cases.  The Advisory Committee had emphasized the need to monitor and analyze such trends, as well as to address the backlog of cases as a matter of urgency, using available resources as efficiently as possible.

ACABQ had been informed that the Secretariat was behind schedule in the preparatory work related to the implementation of the new justice system, he continued.  That was, in part, a consequence of the lack of staffing in the Office of Administration of Justice and the fact that the statutes of the two Tribunals had not yet been adopted.  Since the adoption of resolution 62/228 in December 2007, none of the 30 posts authorized for the Office of Administration of Justice had been filled.  Given those and other delays, the Advisory Committee had noted that the new system might not be ready for implementation as envisaged in January 2009.  Every effort should be made to complete the preparations as a priority issue.  The Secretary-General should be requested to update the timeline for the implementation of the new system of internal justice.

In connection with the proposals for limited delegation of authority for disciplinary cases, the Secretary-General had indicated that certain prerequisites must be in place prior to its implementation.  Those included, for example, the formulation of a concrete proposal on the imposition of fines and censures, specification of the roles and responsibilities of various entities involved in investigations, the type and timing of legal assistance to be provided to staff, as well as finalization of the procedures related to the new mechanisms of the disciplinary process.  Having commented on the Secretary-General’s report on the delegation of authority, the Advisory Committee had expressed its opinion that further efforts would be required to explore other options for managing disciplinary cases, with a fuller analysis of the advantages and disadvantages of each option.  Therefore, ACABQ had recommended that the Secretary-General be requested to submit a new proposal to the Assembly at its resumed sixty-third session, including a variety of options, with full costing. 

Address by Staff Representative

President of the Staff Union of the United Nations Secretariat STEPHEN KISAMBIRA said that he was seriously concerned that the Secretary-General had failed to date to fill the requisite posts, especially in the Office of Administration of Justice, and might present that as an excuse to seek delay in the implementation of the new justice system.  Mindful of the anxiety engendered by the previous abortive attempts to reform the justice system, the staff were eager to have the new system begin on 1 January 2009, especially after its inception had been deferred for one year to allow enough preparatory time before implementation.  The current system, which the General Assembly had recognized as ineffective and lacking in professionalism, had denied the staff of the United Nations the justice enjoyed by ordinary people in the host country.

He said that the failure of the Secretary-General to meet his responsibilities in a timely manner smacked of either indifference or incompetence or just plain foot dragging, when compared with the intensive process of advertising, examining, vetting and recommending judges, which had been undertaken in an expeditious and timely manner by the Internal Justice Council.  In hindsight, the role of the Council should have been expanded to interview and vet all the candidates for posts in the new justice system, including the post for Director of the Office of Administration of Justice.  The staff had trust in the Internal Justice Council, which had proven its effectiveness and independence in meeting the responsibilities assigned to it by the Assembly.  It would be opportune now for the Fifth Committee to consider requesting the Council to take up the task of interviewing and vetting candidates for the Office of Administration of Justice.

He also suggested that, in order to allow the new justice system to start on 1 January 2009, as intended by the General Assembly, the Committee might wish to consider the option of offering vacant posts in the Office of Administration of Justice to the remainder of the candidate judges who had been recommended by the Internal Justice Council, after the 12 judges had been selected.  Should the United Nations fail in its efforts to implement the new system by January 2009, the Fifth Committee might wish to consider requesting the Secretary-General to allow the United Nations staff to avail themselves of the jurisdiction of the federal, state and local law of the United States, in accordance with Article III of the Headquarters Agreement.

The Assembly had tasked the Internal Justice Council with providing views on the implementation of the system of administration of justice to the Assembly, which would require overseeing the system and monitoring its progress, he added.  It was vital, therefore, that the Internal Justice Council be provided with resources to carry out such tasks properly, to investigate and report back on the functioning of the system not only in New York and Geneva, but also Nairobi, Bangkok and Santiago.  In about a year, the Council should be able to interview the judges, their staff and union representatives in order to assess the performance of the new system, and present an interim report to the Assembly.  The Union was also seriously concerned about the lack of provisions for the sanctioning or removal of judges, and suggested that such a role should be assigned to the Internal Justice Council.

Statements

CONRAD C. HUNTE (Antigua and Barbuda), speaking on behalf of the “Group of 77” developing countries and China, said that resolutions 61/261 and 62/228 provided a clear road map and defined key features of a system for the administration of justice and regretted the numerous delays and numerous tasks still outstanding.  He was particularly concerned that all new posts approved last December remained vacant, especially as regarded the position of Executive Director of the new Office of Administration of Justice.  For the new system to be in place by the new year, pending issues regarding the statutes of the United Nations Dispute and Appeals Tribunals as well as issues pertaining to the appointment and renewal of new judges must be elucidated.

Noting that the quality of the system hinged on the quality of the judges, he emphasized the important role of the Internal Justice Council, in that regard, and said that the appointment of judges should continue to be a prerogative of the General Assembly.  He supported attractive remuneration for the judges to recruit highly qualified legal practitioners.  On transitional measures, he saw merit in the addition of three ad litem judges to the Dispute Tribunal for a 12-month period following its establishment, with a view to clearing the backlog.

He further noted ACABQ concerns regarding the delegation of authority and said that administrative instruction could only be finalized following a General Assembly decision on the policy regarding limited delegation of authority.  Delegation of authority for disciplinary cases required effective monitoring and adequate guidance, as well as clear consequences for failure to exercise such authority properly.  There was also a need for clearly defined lines of responsibility and accountability during the investigative disciplinary process.

A well-resourced formal system of justice was vital, he continued, endorsing the Secretary-General’s proposed cost-sharing arrangements based on the total number of staff members in the Secretariat and in the funds and programmes, and expected the Secretary-General to conclude negotiations on the matter for an agreement between the Secretariat and the funds and programmes on cost-sharing based on headcount.

The Group supported strengthening the informal system to avoid burdening the formal system, he said, and therefore agreed to a strengthened Ombudsman system, as well as the Mediation Division, as key elements of the new justice system.  A structured and strong Mediation Division, managed by professionally qualified personnel and conveniently decentralized, was a core function of the system and would help solve most problems in a cost-efficient and fast way.  He urged the Ombudsman to complete the process as a matter of priority and to issue its own terms of reference as soon as possible.

Regarding amended staff rules, the Group agreed with the Advisory Committee that such amendments were contingent upon the adoption of the statutes of the Tribunals and/or procedures for dealing with disciplinary cases.  On the use of information technology to improve the functioning of the justice system, he emphasized that the confidentiality of parties involved in a dispute must be protected.  Further, he said that the scope of the new system should be inclusive and non-discriminatory.  That issue should fall under the purview of the Fifth Committee.  No person working for the Organization should lack legal recourse to enforce his or her rights, he added.

Noting that shifting to a new system should not prevent retention of positive functional elements of the former one, he said that the new staff legal assistance office should continue to provide legal advice and representation as its predecessor, the panel of counsel, did.

He expressed great concern at ACABQ’s suggestion that the implementation of the new system of administration of justice must be delayed.  He reiterated the Group’s commitment to establish a fully functional system of justice by 1 January 2009, in the belief that an effective system was imperative to ensuring due process for and just treatment of staff, and would also increase management accountability and transparency.

PHILIPPE SUTTER (France), speaking on behalf of the European Union, regretted that discussions on the new system of administration of justice did not start until 20 November, as the project was a priority and the Sixth Committee (Legal) had considered the matter early on, to facilitate the Fifth Committee’s concluding its consideration as early as possible.  The system must be independent, transparent, professional, decentralized and adequately funded, he said, as well as compliant with international law and the principles of the rule of law and fair trials.

Noting the need to strike a balance between the formal and informal elements of the system, he said that the effectiveness of the formal system would depend on guarantees offered regarding access to justice, equality and adequacy of remedies, on the one hand, and the legal and judicial expertise, experience, independence and other qualification requirements of the judges to be appointed to both Tribunals, on the other.

Regarding the scope of the new Tribunals, he reiterated the two-step approach proposed by the European Union in the Sixth Committee.  The first priority was to focus on establishing a new internal justice system that would, at minimum, cover individuals with access to the current system.  Then, the United Nations must ensure that effective remedies were available to all other categories of personnel and consider what types of recourse would best achieve that end.  Adequate transitional measures should ensure continuity of the work of the judiciary.  That was essential to build confidence at the early stages of implementation.

In making decisions on the new system, delegations must have complete information, he said.  The Advisory Committee noted, he continued, that the information the Secretary-General provided on the delegation of authority was incomplete with respect to the requests made by the General Assembly in its last resolution.  The Union remained determined to see the new system ready for implementation on 1 January 2009, in accordance with the relevant resolutions.

PETER STONE (Australia), also speaking on behalf of Canada and New Zealand, said that the United Nations and its staff deserved a fair and efficient system of internal justice, which was consistent with international law and the principles of the rule of law and due process.  The United Nations should lead by example.  A properly functioning system of internal justice underpinned all efforts to strengthen accountability, oversight and human resources management at the United Nations.  He had strongly supported the fundamental reform of the current system and was very pleased that the Assembly had decided to establish a new, independent, transparent and professional system.

With the implementation deadline fast approaching, the Committee now needed to finalize the structure and implementation details of the new system, he continued.  Most importantly, it must adopt draft statutes for the two new Tribunals.  The Sixth Committee had agreed to most elements of the statutes.  Where unable to reach agreement, it had usefully provided the Fifth Committee with options to consider, which should save the Committee time and effort.  One element that he would like to highlight was the need to ensure access to justice, which was especially important when considering the intertwined issues of the awarding of costs and the provision of legal assistance to staff.  Transitional arrangements and associated costs also needed to be finalized.  Those were still challenging issues to agree, but he would work constructively towards a consensus.  He looked forward to working with colleagues on establishing a functional system of internal justice, if not by 1 January 2009, as soon as possible there after.

CARLOS RUIZ MASSIEU (Mexico), speaking on behalf of the Rio Group, stressed that the new system of justice must start operating in January 2009, in accordance with relevant General Assembly resolutions, and he regretted the delay in preparations for its establishment, as well as the failure to fill any of the 30 posts authorized for the Office of the Administration of Justice.  He further noted that delays in the development of transitional procedures, a code of conduct for legal practitioners, terms of reference for the registries and plans for training and communications for the new system contributed to the overall delay.

The system would evolve once it began functioning, he said.  To start, it would be good to conclude the articles of the statutes on financial issues, as well as those regarding contracts and conditions of service of the staff.  It was, therefore, urgent to appoint the Executive Director of the Office of Administration of Justice.

The Rio Group, considering staff to be the Organization’s most valuable asset, would continue to support measures to protect the basic rights of staff in accordance with internationally accepted standards.  The Organization should be a model employer to attract and retain the best personnel.

On disciplinary measures, he asked the reasons for the increase in the number of disciplinary cases, as well as the variations in the time required to consider them, and expressed concern that the Secretary-General’s report was largely devoted to proposals for dealing with such cases.  He agreed with ACABQ that addressing the backlog of disciplinary cases was urgent.  However, the Secretary-General’s proposals did not include, as requested by the General Assembly, an assessment of possible implications for the due process rights of staff members, resulting from options for limited delegation of authority.  It was important to analyze other options to address disciplinary matters, and their respective cost assessments, to resolve pending cases expeditiously.

He said limited delegation of authority should not be considered as the sole factor for improving administration of justice, without an efficient mechanism for investigation, determination and application of disciplinary measures.  Therefore, it was essential to establish sanctions at all levels of the Organization to ensure transparent and efficient accountability in the justice system.  On other matters, he concurred with ACABQ that a strengthened Ombudsman Office and the new Mediation Division were fundamental elements of the new system, and agreed that the report on the activities of the Ombudsman should be a useful source of information during the process of establishing the new system.  He also noted the importance of implementing transitional measures to transfer and dispose of current cases.

FLORIAN GUBLER (Switzerland), also speaking on behalf of Liechtenstein, took note of several serious delays in the preparatory work related to the implementation of the new system, which had been revealed in the report of ACABQ.  He was surprised to learn that not a single of the 30 posts approved for the Office of Administration of Justice had been filled, although the Assembly had requested the Secretary-General to ensure that those positions be filled no later than 1 July 2008.  Due to the lack of staffing and leadership of that Office, preparation lagged behind in other important areas, such as certain aspects related to the Office of the Ombudsman of cost-sharing arrangements with funds and programmes.  While regretting those delays, he believed exceeding the deadline of 1 January 2009 was not an option, given the urgency and the need for that reform.

The negotiations in the Sixth Committee had brought about considerable progress with regard to the statutes of the Dispute and Appeals Tribunals, he continued.  It was essential for the Fifth Committee to keep up with that pace, finalize the statutes and resolve all other outstanding issues within the coming weeks.  Special attention would be given to the scope of the new system and transitional measures.   Switzerland reiterated its former position that the reform of the administration of justice should enable all persons, regardless of the nature of their contractual connection with the United Nations and location in which they carry out their duties, to present their cases in the event of disputes and –- if necessary –- have the right to a fair trial.  While, due to time constraints, it might be difficult to address that issue fully before 1 January 2009, the Committee could consider having in-depth discussions on that question in the framework of the Ad Hoc Committee, which would meet in early 2009.  Nevertheless, it was of the utmost importance to have some minimal remedies open to all categories of personnel at 1 January 2009, such as the informal system and management evaluation.

K. DHANARAJU (India) aligned himself with the statement of the Group of 77 and China and noted that the Secretariat was behind schedule in preparing to implement the new system, particularly as regarded staffing the Office of Administration of Justice, finalizing terms of reference for the registries, establishment of the Mediation Division in the Office of the Ombudsman and finalization of cost-sharing arrangements with the funds and programmes.  The inability of the General Assembly to consider the draft statutes of the two Tribunals and the arrangement for transition to the new system added to the delay, he added.  He called upon the Secretary-General to expedite completion of the preparatory work.

Given the increase in the number of disciplinary cases from 72 in 2006 to 277 in 2008, all necessary steps should be taken to ensure that the backlog of cases from the old system did not overwhelm the new system at birth, he said, and that the current system would continue to function properly until the new system was fully operational.  In that regard, he supported the Secretary-General’s proposals for transitional measures and endorsed the recommendations of ACABQ on appropriation of resources to finance three ad litem judges and nine registry staff for a 12-month period to deal with backlog cases.

Decentralization was basic to reform of the Organization’s internal justice system, as the Secretariat was no longer Headquarters-based, he said.  Noting the Secretary-General’s proposals on limited delegation of authority for disciplinary measures, he said it was important to ensure consistent application of such measures.  There must be a robust system in place in the field, accompanied by safeguards, including the capacity to advise management and staff on disciplinary matters.  Delegation of authority must also be supported by administrative instructions, guidelines and training, as well as relevant manuals and standard operating procedures.

He further said that ACABQ noted the lack of an assessment in the Secretary-General’s proposals on delegation of authority, of possible implications for due process rights of staff members and other options, as called for by the General Assembly.  Even the basis for resources requested for each peacekeeping mission was not clear.  All unanswered issues relating to proper delegation of authority for disciplinary measures must be carefully examined before taking a decision.  He suggested using lessons learned from the recent Office of Internal Oversight Services (OIOS) report, in which there was a detailed critique of the delegation of authority in the area of human resources management.

He further urged the Secretary-General to expedite the early conclusion of cost-sharing agreements with the funds and programmes, based on a headcount rather than on the basis of cases disposed, as proposed by the funds and programmes.  On the use of information technology, he said that strict confidentiality should be ensured, so that damage due to leakage would not be caused either to the Organization or the concerned staff member.

He called for expedited recruitment of all approved posts in the Office of the Ombudsman and the new Mediation Division.  Besides providing an informal mechanism for dispute resolution, the Ombudsman’s reports provided valuable insight into human resources management issues, including areas of systemic malfunction.  The Secretary-General should utilize those findings in addressing systemic problems in human resources management.  Finally, he hoped all outstanding issues could be resolved quickly, so that the new system would be in place by January 2009.

MICHAEL SCANLON ( United States) said that the significance of the Assembly’s decisive action in adopting resolution 62/228 could not be overstated, as it represented the first comprehensive overhaul of the internal justice system in over 50 years.  However, that had been only the first step, and the Fifth Committee must make additional important decisions in that regard.  It was his sincere hope that, with pragmatism and cooperation, the Fifth Committee would complete action on that vital subject at this session.

While complimenting the Secretariat for what it had accomplished so far this year, he also noted, however, that the Advisory Committee had cited delays in filling a number of important posts and called for clarifying the respective roles of the Office of the Ombudsman and Ethics Office.  The Ombudsman’s Office played a critical role in ensuring the success of the internal justice system and encouraging staff to make full use of the informal system in resolving disputes.  The new Mediation Division was a key element of the informal system.  All parties and the Organization benefited when a dispute could be resolved through mediation and without the need for formal proceedings.  At the same time, resolution 62/228 took into account that not all disputes would be resolved through the informal process.  He noted the progress on the elements of the formal system and looked forward to further progress in the weeks ahead.

Turning to outstanding issues, he said that, with regard to compensation, costs and interest, his Government supported the continuation of the long-standing policy of imposing a cap on the award of damages.  He was very concerned that the proposals to remove the cap and allow interest and costs were not only unnecessary to ensure just and fair awards, but also exposed the United Nations to unlimited financial liability.  It was necessary to proceed cautiously in the first instance, while providing Member States with the opportunity to revisit those issues after the Organization had acquired experience under the newly revamped system.  With respect to the scope of the new system, his Government believed that it was necessary to be careful not to move too far and too quickly into unknown areas.  Trying to accommodate all interests, particularly at this early stage, was unnecessary and inappropriate and was likely to overload the system.

“We must ensure that the result of our work is, in fact, an improvement over what currently exists,” he said.  Thus, the new system should continue to be limited to staff and not expanded to include non-staff.  He recognized that settlement of grievances pursuant to arbitration under the United Nations Commission on International Trade Law (UNCITRAL) might not be appropriate to the needs of non-staff and that there should be other options for them to pursue.  He was prepared to work with others to develop options for addressing those needs, if that was deemed useful.

The implementation of the new system had seen the Panel of Counsel evolve into the Office of Staff Legal Assistance, he continued.  That was a significant and necessary improvement, but he would also like to express his objection to the use of such staff to provide representation to staff members before the Tribunals.  Office of Staff Legal Assistance officers should help guide United Nations staff through the grievance process and provide advice on legal issues, but should not assume the role of direct legal representatives.  There were active and retired staff who were extremely knowledgeable about the Organization’s rules, regulations, policies and practices and who had traditionally volunteered to assist staff with their claims.  The Organization must do more to encourage such staff to volunteer, and management to allow such volunteers to render that assistance.

He also emphasized the need to avoid encumbering the new system from the start with a backlog of cases from the old system.  After 1 January 2009, any cases that arose after exhausting the informal system should be referred to the United Nations Dispute Tribunal.  Cases that had already progressed to the Joint Appeals Board or Joint Disciplinary Committee by the end of 2008 should be processed under that system and not transferred to the new one.  The two systems were not alike and what had begun in one should not be finished in the other.  It was also important to inspire confidence in the new system, and slowing it down by taking on a backlog of old cases would do just the opposite.  For the new system to be truly decentralized, the Committee would have to consider proposals for extending a limited delegation of authority for disciplinary cases to heads of mission and offices away from Headquarters.  That had been recommended by the Redesign Panel.  While supporting such a limited delegation in principle, he had concerns about the Secretariat’s proposal for implementing that policy and believed it warranted further discussion.

ALEJANDRO TORRES LEPORI ( Argentina) associated himself with the statements of the Group of 77 and China and the Rio Group.  His delegation had been following the reform of the internal justice system since it was first raised at the fifty-ninth session of the General Assembly.  He noted deadlines set by relevant resolutions for the new system and said it was still possible to meet the goal of having the system up and running by 1 January 2009, despite delays.  The most disquieting aspect of the delay was the failure to appoint the Executive Director of the Office of Administration of Justice, who was to provide guidance during the process.  The position should have been created by July 2008.  The entire process suffered from lack of that guidance.  Despite that lack, there were already a number of candidates to fill the posts of judges in the two Tribunals.

Finalizing the statutes of the two Tribunals would help put the process back on track to meet the time frame, he continued.  States parties had a responsibility to see that system was up and running on time.  It was the Member States who had requested proposals and set deadlines for reform of the internal justice system.  Now it was up to Member States to meet their own deadline.  Further, strengthening the system for informal dispute resolution would ease the burden on the formal system and was of great importance, he said. 

YASUO KISHIMOTO ( Japan) said that the new system should have a positive impact on staff-management relations and improve performance of both staff and management.  From that point of view, as Member States had agreed, the justice system should centre on the informal system, with a view to restoring trust and credibility.  The Assembly’s previous agreement on the resources for the informal system clearly called for an effective functioning of the regional Ombudsman and informal mediation before the new formal system commenced operation.  It would be a great loss if the Organization failed to make the most of those resources in 2008.

On the preparations for the new Tribunals, he said that the formal two-tier system should be as efficient as possible.  Although there had to be access to the formal system, recourse should be kept to a minimum, in order to avoid abuses.  Regarding the scope, it was reasonable to start the new system for the staff who had access to the current one.  It would be appropriate to consider extension of the scope to non-staff at a later stage, based on experiences gained.

In resolution 62/228, he said the Assembly had decided to establish the Internal Justice Council and requested that positions in the Office of Administration of Justice be filled as a matter of priority, but no later than 1 July 2008.  However, those important arrangements had been delayed.  As a result, the current situation did not allow initiation of the new system at the expected time.   Member States and the Secretariat had to do their utmost to achieve the goal.  It was necessary to concentrate on the preparations required within resolution 62/228.  At the initial stages, judgements by the Dispute Tribunal were to be basically rendered by a single judge.  There must also be an appropriate restriction on the awarded damages, in order to avoid unnecessary litigation.

Turning to the transitional measures, he stressed the need to ensure an efficient and legally consistent approach.  Transferring all cases pending to the United Nations Dispute Tribunal would automatically produce different resolutions of the pending cases.  The current Joint Appeals Board provided staff with peer review and its decisions were advisory in nature.  The common goal had been to clear the backlog before the new system commenced operation.  Now that it was known that it was not feasible, it was necessary to look at ways of achieving an appropriate balance.  It would be unjust for some cases to be duly disposed of in the current system, while others would be considered under the new one, due to a delay in completing the current caseload.  It was necessary to scrutinize the option of continuing the use of the current system until the backlog had been cleared.  Paying honorariums had to be considered, in accordance with the previous resolution.

His delegation concurred with ACABQ that the guidelines, procedures and safeguards should be established to implement the delegation of authority for disciplinary matters, he said.  The Secretariat should spend sufficient time to consider proposals describing prerequisites and cost-effectiveness.  As the Secretary-General correctly noted in his report, inconsistent and arbitrary use of delegated authority would clearly cause irreversible damage.  Regarding the provision of legal services for staff, it was necessary to combine several approaches.  Neither the Organization nor the staff unions could provide those requirements by themselves.  It was necessary to evaluate how to strengthen the work of the Office of Staff Legal Assistance at a later stage, based upon experience.  The Secretary-General also had to work more actively towards the establishment of the staff-funded scheme, which the General Assembly had repeatedly requested.

On cost-sharing, he added that such an arrangement was one of the most important elements in securing participating organizations’ commitment to the new system.  The Assembly had approved the cost-sharing methodology, based on headcount, and requested the Secretary-General to conclude discussions with relevant funds and programmes by July 2008.  It was regrettable that discussions had not sufficiently progressed.  Reaching agreement on that matter was a prerequisite for putting the new system into operation.

DIMITRI S. CHUMAKOV ( Russian Federation) said that reform called for implementation of a number of important measures, particularly extra-judicial dispute resolution and the replacement of the current Administrative Tribunal with two bodies -- the Disputes and Appeals Tribunals -- as well as improved judicial procedures.  It was not enough to speak of formal measures.  The task before Member States was a quality renovation of the existing mechanism for the resolution of labour disputes.

The Sixth Committee (Legal) had agreed generally on the draft statues for the Disputes and Appeals Tribunals, he continued, however, some principal issues remained for consideration by the Fifth Committee.  In particular, there were questions of the Tribunals’ jurisdictional limits and who could seek remedy from them.  Those considerations entailed looking at transitional measures which would facilitate consideration of overflow cases without excessive cost.  Any such steps should be carefully weighed in terms of their long-term consequences.

Complex and voluminous work lay ahead with little time to complete it, he added, if the system were to be implemented by 1 January 2009 as required by the General Assembly.  It was important to try to adhere to that established time frame, but the quality of decisions must not suffer due to time pressures.

Other Matters

Mr. HUNTE (Antigua and Barbuda), speaking on behalf of the Group of 77 and China, and said that the Group was concerned over the long delays in the construction project in Nairobi, which had resulted from some bad decisions and poor management, as well as non-adherence to the chain of command.  The Committee had been looking at the issue for seven years, constantly rubber-stamping the project, while there had been a number of serious violations and anomalies.

He also had a number of concerns in connection with the Committee’s informal meeting on the construction in Nairobi on Tuesday.  The Group was dissatisfied with how the meeting had been handled.  In particular, it was concerned regarding irregularities in the way the questions of the Group had been presented, which was, at best, mediocre, bordering on being incorrect or false.  The Secretariat seemed to be of the view that there had been some lapse in memory on behalf of the members of the Group.  He was concerned that what the Group had heard from the Director-General of the United Nations Office in Nairobi seemed to conflict with what had been presented by the Secretariat.  There had also been a call for an adjournment of the informal meeting at least twice, with no objections, yet the meeting had continued.  That infuriated the Group, although it had not forced the issue.

The Secretariat had the onus of capturing most information in informals, he continued.  At the minimum, it should transmit correct information.  One might believe that the issue was not deemed to be as important as others.  Unless his concerns could be captured in informals, he would insist on a formal meeting, so that what the Group said could be captured.

ELSA CRISTINA DEJESUS PATACA ( Angola), speaking on behalf of the African Group, aligned herself with the statement made on behalf of the Group of 77 and China.  She called for the expeditious completion of the Nairobi construction project.  She was particularly concerned with what appeared to be the lack of commitment and accountability in executing the construction of the approved project at the Nairobi Office and regretted the inadequate and inconsistent answers provided to Member States on that important issue.  She called that “a clear demonstration of lack of accountability and commitment regarding the construction project at UNON [United Nations Office in Nairobi]”.

She further underscored the importance of full respect and adherence to the existing chain of command in the Secretariat and stressed the need for proper involvement at the highest managerial levels in the project’s execution, including its proper monitoring.

She noted, on a related matter, that a Fifth Committee Secretariat was assigned to the Committee to help make an accurate record of proceedings and deliberations, including informal meetings, and that it was solely assigned to the Committee to enable provision of necessary technical guidance and facilitate follow-up responses to questions raised on all issues by all Member States on an equal footing.

In that connection, she regretted the recent development during informal consultations on the United Nations Office in Nairobi project, when the Secretariat informed Member States that the Committee’s understanding and recollection of remarks by the Director-General of the Nairobi Office was not accurate.  She urged that the item be considered in formal meetings for the sake of transparency, record keeping and progress.  The African Group was no longer prepared to discuss the matter at the informal level, she said.

GEORGE OLAGO OWUOR ( Kenya) allied himself with the statements of the Group of 77 and China and the African Group and made three further points.  First, he noted that the United Nations Office in Nairobi construction project had been approved in 2001, but to date nothing had been done.  The loan for the project had already been fully repaid with interest.  He wanted to know how that loan had been repaid when “nothing had happened” on the project.  Had there been no supervision on the project? he asked.

Further, he demanded a clear chain of command at the United Nations Office in Nairobi so that the project could proceed as recommended by the Fifth Committee.  He also said that the project must be clearly monitored and reported on back at Headquarters.  Finally, he called for sincerity from the Secretariat in responding to questions from Member States.  It had been claimed that certain issues were not in the record.  All issues must be discussed fully, so that the project could be fully implemented.

BRUNO BRANT ( Brazil) expressed support for statements by the African Group and the Group of 77 and China.  The matter under discussion was just one example of the widespread lack of accountability and transparency in the Organization, along with the issue of 2 per cent savings and others, he said.  To make informed decisions, Member States must be presented with clear facts.  The Secretariat must be clear about what needed to fulfil mandates.  Further, it must be impartial and not pre-empt the decisions of Member States.  Given what had occurred in informal sessions, he asked to continue discussion in a formal session.

Mr. CUMBERBATCH( Cuba) said that his delegation regretted to have to resort to a formal meeting to clarify the issue of construction in Nairobi.  On the basis of what the Secretariat said, Member States were receiving contradictory information, and some Secretariat officials had been correcting the information provided earlier.  He supported what had been said by the representatives of the Group of 77 and China and African delegations, along with Brazil.  In fact, during the current session, contradictory information had been received from the Secretariat on several other issues, as well.  He also commented on the emergence of budgetary implications that had not existed when the Committee had met to discuss the needs for servicing the United Nations Office in Geneva, for example.  Unfortunately, he had to address the construction in Nairobi in a formal meeting.  At least there was a possibility of it being properly recorded.  If the trend continued on other items, it would not be the only item on which the Committee would have to resort to a formal meeting.

MOTUMISI TAWANA ( South Africa) aligned himself with the Group of 77 and China and the African Group regarding the construction projects in Nairobi.  His delegation, like others, had been appalled at what happened on Tuesday, three weeks after the Committee had held its last informal meeting on the matter.  Questions had been posed following the briefing of the Director-General of the United Nations Office in Nairobi, all of them consistent with what he had said during informals.  Later, the Committee had been given a contrarian perspective of what the Director-General had said.  He wondered what the central organizing premise was with regard to the construction projects, especially on the African continent, in Nairobi and Addis Ababa.  The Nairobi project was “stuck, limping from one excuse to another”, but there was no progress.  There had also been a significant cost increase.  When first proposed in 2001, the project had been estimated at some $5 million, but now it had risen to $25 million “and counting”.  With current volatility and crisis, how much would it cost in the end?

He also wondered about the project team, asking if there was one at all and if it was fit for the purpose.  He also wanted to know who constituted the team.  He had posed a clear question on that.  “We cannot have a situation where we are told that our recollection is deficient and inaccurate,” he said.  That was strange and bizarre.  Was that because what had been said might reflect the truth on the ground, and such truth was too hard to handle?  He also asked if OIOS had been requested to undertake an investigation or audit of the project over the past seven years.  It would be bizarre if no audit had ever been undertaken, considering that zero progress had been made.  He fully supported bringing the item back to the formals, because he had lost confidence in the informal sessions.  In conclusion, he emphasized the need to ensure equal treatment of all duty stations.  Construction at Nairobi and in Addis Ababa needed to be treated equally and fairly, and accountability was needed on that issue.

NTESANG LORRAINE MOLEMELE ( Botswana) aligned herself with the statements by the Group of 77 and China and the African Group.  She expressed concern at delays in the construction project in Nairobi.  She also requested accountability.  Further, she said that she understood that the Fifth Committee was to have been provided a secretariat to keep historical memory, yet the Secretariat said it was impossible to provide information from informal meetings.  She asked that that be clarified in a formal meeting.  Her delegation had lost faith in tackling the matter in informal discussions and requested that the matter be taken up at a formal session.

SAIDU MOHAMMED DODO ( Nigeria) also associated himself with the statements of the Group of 77 and China and the African Group.  He expressed disappointment over how the matter in Nairobi was being handled.  The project had taken over seven years, to date, and it had taken over three weeks to answer questions raised on that account.  Those responding had brought written answers that were inconsistent with what had actually been said.  He called for the Secretariat to answer questions correctly and for the matter to be taken up in a formal session.

BABOU SENE ( Senegal) supported the statements by the Group of 77 and China and the African Group.  He expressed deep concern with delays in implementing the construction project in Nairobi and the opaque way the Secretariat was dealing with the issue.  He joined others in calling for the issue to be taken up in formal session.

Responding to those concerns, Ms. KANE said that the Secretary-General’s bulletin clearly defined the authority of the Director-General of the United Nations Office in Nairobi, who had full responsibility to manage those projects.  He was accountable to the Secretary-General and responsible for all activities at Nairobi, including the management of facilities.  The Director-General was responsible for the implementation of the project, and the Director of Administrative Services had full financial and procurement authority to complete both modernization and new office facilities projects.  As for the difficulties and cost escalation that had beset the project, the Committee was aware that there had been difficulties with the architect who had been originally hired.  Changes had also been made to the original design, and a large number of security measures had been built into the project, resulting in the expansion of the cost.  The previous Director-General had started the project, and the present one had taken over.  Everybody agreed on the need to move forward.  The level of staffing would continue to be evaluated as the project progressed.  Resources had been dedicated to the project, and all the structures were in place.

The Headquarters provided overall guidance and advice, she said, but, while there was information exchange and common approaches for efficient management, it was impossible to be totally responsible for the execution of the project from Headquarters, when there was a team in place on the ground.

She also expressed concern over the perception that projects at different continents were treated differently.  Among other things, it was important to remember that the United Nations actually owned the facilities in Nairobi and Addis Ababa, while the complex in Vienna, for example, was owned by the Government.

The Secretariat of the Fifth Committee was exceedingly small and able, she added.  She was pleased to note that, according to the latest survey, its services had been rated above satisfactory.  However, it was impossible to reproduce what was said in informals verbatim.  The questions were written down, and the Secretariat faithfully tried to answer “as fast as we can”.  However, since the beginning of the session, the Secretariat had already provided 1,357 pages of responses, “because you want us to be transparent and we want to respond to your concerns”.  However, it was difficult to respond to all concerns.

MOVSES ABELIAN, Secretary of the Committee, explained that note was taken of every question raised by Member States, and the Secretariat followed up with substantive offices.  However, it was not possible for one person to record every single word of informals.  In formal meetings, there were always a number of people responsible for summary records and press releases.  Formal meetings were also recorded, while informals were not.  His staff also took note of statements by Secretariat officials, but could not keep records for every single statement.  The Secretariat continued to help facilitate the work of the Committee.

Mr. TAWANA ( South Africa) raised a follow-up question, noting that his question regarding OIOS had not been responded to.  Had OIOS been requested to look into the project and with what result?

Further, he said that no one had said that everything in informal discussions must be written down.  He asked, however, how questions could have been taken down accurately when the questions then responded to were not in accordance with what had actually been said.  He also wanted to know whether Ms. Kane could state categorically that the project would go somewhere.

Ms. KANE responded, saying that she was unaware of any audit conducted by OIOS on the project.  However, regular audits, both internal and external, were always ongoing.

Responding to the question about the project’s status, MICHAEL ADLERSTEIN, Assistant Secretary-General for the Capital Master Plan, said that there was a perception that seven years had been lost on the project, but that was not so.  The project was on the verge of construction.  Preparations, funding and other matters had taken until 2004.  The architect was selected in that year, but his work proved unacceptable.  Matters were settled with that architect in 2006.  New architects were selected in 2007.  Construction documents were now complete, which was half the work.  A great deal had been accomplished, he said.  All that remained for construction to begin was for the Committee to approve funding.

* *** *

For information media • not an official record