INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
APPLICATION FOR REVIEW OF
JUDGEMENT No.158 OF THE
UNITED NATIONS
ADMINISTRATIVE TRIBUNAL
COUR INTERNADE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
DEMANDE DE RÉFORMATION
DU JUGEMENT N° 158
DU TRIBUNAL ADMINISTRATIF
DES NATIONS UNIES IX
CONTENTS - TABLE DES MATIÈRES
Page
Request for Advisory Opinion . . . . . . . . . . 1
The Secretary-General of the United Nations to the President of the
International Court of Justice . . . . . . . . . . . . . 3
Dossier transmitted by the Secretary-General of the United Nations
(Art. 65, para. 2, of the Statutc) . . . . . . . . . . . 5
INTRODUCTORY NOTE . . . • . . . . . . • . . . . 7
Part l of the dossier. Documentation relating to the proccedings
leading to the request by the Committee on Applications for
Review of Administrative Tribunal Judgements for an advisory
opinion of the International Court of Justice in relation to Judge-
ment No. 158 of the Administrative Tribunal . . . . . . . . . 8
A. Documents of the Tenth Session of the Committee on Appli-
cations for Review of Administrative Tribunal Judgements . . 8
B. Other documents cited in or relevant to documents considered
by the Committee on Applications for Review of Administra-
tive Tribunal Judgements at its Tenth Session . . . . . . . . 8
Part li of the dossier. Documentation relating to the formulation of
Article 11 of the Statute of the Administrative Tribunal . . . . . 10
A. Documentation of the Ninth Session of the General Assembly . 10
B. Documentation of the Special Committee on Review of Ad-
ministrative Tribunal Judgements . . . . . . . . . . . . 10
C. Documentation of the Tenth Session of the General Assembly 11
CONTENTS OF THE DOSSIER 13
Writtcn Statcment
WRITTEN STATEMENT SUBMITTED TO THE INTERNATIONAL COURT OF
JUSTICE ON BEHALF OF THE SECRETARY-GENERAL OF THE UNITED
NATIONS • . . • . . . . . 27
1. Background . . . . . 27
A. Summary of the facts 27
B. The previous proccedings 30
1. The Joint Appeals Board 30
(a) JAB Case No. 172 . 30
(b) JAB Case No. 181 . 32
2. The Administrative Tribunal: Case No. 144 33
3. The Committee on Applications for Review of Admini-
strative Tribunal Judgements: Application No. 14 . . . . 35
II. Analysis of the questions addressed to the Court by the Com
mittee on Applications for Review of Administrative Tribunal
Judgements . . . . . . . . . . . . . . . . . . . . . . 36
A. Claim for damages in respect of professional reputation and
career prospects . . . . . . . . . · . . . . . . . . . . 37X APPLICATION FOR REVIEW
Page
1. Factual and legal issues . . . . . . . . . . . . . . . 37
2. Did the Tribunal exercise its jurisdiction with respect to
the claim for damages? . . . . . . . . . . . . . . . 40
(a) The Tribunal's decision with respect to the claim for
damages .. ·. . . . . . . . . . . . . . . . . 40
(b) The Tribunal's obligation to award monetary com-
pensation . . . . . . . . . . . . . . . . . . . 41
3. Did the Tribunal commit any fundamental error in pro
cedure which has occasioned a failure of justice with
respect to the claim for damages? . . . . . . . . . . 42
(a) The Tribunal's procedure . . . . . . . . . . . . 42
(b) The Tribunal's obligation to explain the basis on
which it fixes amounts of compensation to be paid 42
(c) The adequacy of the award . . . . . . . . . . . 43
(d) Summary . . . . . . . . . . . . . . . . . . . 44
B. Claim for award of costs incurred in the previous proceedings 44
1. Factual and legal issues . . . . . . . . . . . . . . . 44
2. Did the Tribunal exercise its jurisdiction with respect to
the claim for costs? . . . . . . . . . . . . 45
(a) The Tribunal's jurisdiction to award costs . . . . . 45
(b) The decision in the instant case . . . . . . . . . . 46
3. Did the Tribunal commit any fundamental error in pro
cedure which has· occasioned a failure of justice with
respect to the claim for costs? . . . . . . . 46
(a) The Tribunal's practice in awarding costs 46
(b) The factors in the instant case . . . . 47
(c) Summary . . . . . . . . . . . . . 48
C. Claim for recalculation of salary and allowances 48
1. Factual and legal issues . . . . . . . . . . 48
2. Did the Tribunal exercise its jurisdiction with respect to
the claim for recalculation? . . . . . . . . . . . . . 53
(a) The Tribunal's conclusions with respect to the claim
for recalculation . . . . . . . . . . . . . . . . 53
(b) The correctness of the Tribunal's conclusions with
respect to the claim for recalculation . . . . . . . 53
(i) The Secretary-General's discretion in determi-
ning emoluments applicable to an assignment . 53
(ii) The Secretary-General's obligation to recalculate
emoluments for a foreshortened assignment . . . 54
(c) Summary . . . . . . . . . . . . . . . . . . . 54
3. Did the Tribunal commit any fundamental error in pro
cedure which bas occasioned a failure of justice with
respect to the claim for recalculation? 55
Ill. Request for the award of costs . . . . . . . . 56
A. Claims for costs . . . . . . . . . . . . 56
1. ln connection with the application to the Committee on
Applications· for Review . . . . . . . . . . . . . . 56 CONTENTS XI
Page
2. In connection with the proceeding before the Court . 56
B. The Court's authority to award costs 56
IV. Conclusions . . . . . . ..... . 57
A. The nature of the review by the Court 57
B. Issues for review . . . . . . . . . 58
1. Failure to exercise jurisdiction . . 58
2. Fundamental errors in procedure . 59
3. Other issues . . . . . . . . . . 60
Annex. Analysis of allegations concerning Mr. Fasla's Perioc:lic
Reports . . . . . . . . . . . . . . . . . . . . . . . . . 62
CORRECTED STATEMENT OF THE VIEWS OF MR. MOHAMED FASLA
SUBMITTED TO THE INTERNATIONAL COURT OF JUSTICE BY THE SECRE-
TARY-GENERAL10F THE UNITED NATIONS 65
General background . 65
Applicant's arguments 70
Plea {d) 15
Plea e) 83
Plea (!) 84
Plea (g) 84
Plea(h) 85
Plea (i) 86
Plea (j) 87
Plea (k) 88
Plea (/) 89
Plea(m) . 89
Plea (n) 91
Plea (o) 93
Plea (p) 93
Plea (q) 94
Conclusions 97
List of Attachmellts to the corrected statement of the views of Mr.
Mohamed Fas/a . . . . . . . . . . . . . . . . . . 100
Written Comments
COMMENTS ON 8EHALF OF THE SECRETARY-ÜENERAL OF THE UNITED
NATIONS ON THE CORRECTED STATEMENT OF THE VIEWS OF MR.
MOHAMED FASLA SUBMITTED TO THE INTERNATIONAL COURT OF
JUSTICE • . • . . • • • • . . • • . • 103
I. Nature of the review by the Court . . . . . . . 103
A. Scope of the review . . . . . . . . . . . . 103
B. Functions of the Court in the review process . 104
II. Comments on substantive issues . . . . . . . 105
A. A policy question . . . . . . . . . . . . 105
B. Questions concerning the Tribunal's Statute 105
1. lnterpretation of Article 9 (3) . . . . . 105
2. Interpretation of Articles 10 (3) an11(1) 105
3. Function of the Tribunal 106
C. Factual questions . . . . . . . . 107Xll APPLICATION FOR REVIEW
Page
III. Procedural issues . . . . . 107
A. Requests for documents . 107
1. Letler from Mr. Hagen 107
2. Correspondence with the Government of the Yemen Arab
Republic . . . . . . . . . . . . . . . . . . . . . 108
3. Evaluations of Mr. Fasla by Mr. Hagen . . . . . . . . 108
4. Report of a high-level investigation by UNDP of its pro
gramme in Yemen . . . . . . . . . . . . . . . . . 108
5. Dossier of correspondence with the Administrative
Tribunal . . . . . . . . . . . . . . . . . . . . . 109
6. Minutes of the Tribunal's consideration of Mr. Fasla's
appeal . . . . . . . . . . . . . 109
B. Certain objections by Mr. Fasla . . . . . . . . . . . . . 109
1. Contents of the dossier of documents . . . . . . . . . 109
2. Role of the General Legal Division vis-à-vis the Admini-
strative Tribunal . . . . . . . . . . . . 110
C. Request for oral hearings . . . . . . . . . . 110
D. Publication of the statement of Mr. Fasla's views 110
IV. Summary and conclusions . . . . . . . . 111
Annex. Analysis of factual questions and of pleas . 113
A. Preliminary factual questions . . . . . . . 113
1. Mr. Fasla's record of service . . . . . 113
2. Circumstances of Mr. Fasla's assignment to Yemen 114
3. Circumstances of Mr. Fasla's recall from Yemen . . 114
4. The timing of the decision to dispense with Mr. Fasla's
services . . . . . . . . . . . . . . . . . . . . . . . 115
5. Did UNDP take any punitive action against Mr. Fasla? . . 116
6. Was Mr. Fasla a victim of prcjudice on the part of UNDP? . 117
7. Efforts to find another post forMr. Fasla . . 118
B. Comments on specific pleas . . . . . . . . . 119
l. Plea (d): Restoration of the status quo ante 119
(a) Legal issues . . . . . . . . . . . . 119
(b) Factual issues . . . . . . . . . . . 119
2. Plea (e): Correction and completion of Mr. Fasla's fact
sheet . . . . . . . . . . . . . . . . . . . . . . . 121
3. Plea (g): Further efforts to placeMr. Fasla . . . . . . 121
4. Plea (h): Compensation for violation of rules concerning
periodic reports . . . . . . . . . . . . . . . . . . . 122
5. Plea (i): Compensation for failure to make an effort to
place Mr. Fasla . . . . . . . . . . . . . . . . . . . 122
6. Plea (j): Compensation for injury sustained by Mr.
Fasla as the result of prejudice displaycd against him . . . 122
7. Plea (k): Compensation of one Yemeni rial for emotional
and moral suffering . . . . . . . . . . . . . 125
8. Plea (/): Compensation for delay in disposing of JAB
Case No. 172 . . . . . . . . .. . . . 125
9. Plea (m): Reimbursement for legal costs 125 CONTENTS XIII
Page
10. Plea (n): Damage to professional reputation and career
prospects . . . . . . . . . . . . . . . . . . . . . 126
11. Plea (o): Compensation for delay in disposing of JAB
Case No. 181 . . . . . . . . . . . . . . . . . . . . 127
12. Plea (p): Recalculation of emoluments for foreshortened
stay in Yemen . . . . . . . . . . . . . . 127
13. Plea (q): Placement of Mr. Fasla on special leave with
full pay . . . . . . . . . . . . . . . . . . . . . . 128
List of the Appendices to the comments on beha/f of the Secretary
General of the United Nations . . . . . . . . . . . . . . . . 129
Note on the Appendices . . . . . . . . . . . . . . . .... 130
COMMENTS EXPRESSING THE Vrnws OF MR. MOHAMED FASLA ON THE
WRITTEN STATEMENT SUBMITTED TO THE INTERNATIONAL COURT OF
JUSTICE ON BEHALF OF THE SECRETARY-GENERAL OF THE UNITED
NATIONS ..................••••..•. 131
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Part I. Scope of review embodied in questions addressed to the Court
by the Committee on Applications for Review of Administrative
Tribunal Judgements . . . . . . . . . . . . . . . . . . . . 135
Part II. The basis of fundamental injuries inflicted by the failure of
the UNDP, the Secretary-General, and the Administrative
Tribunal to discharge their legal obligations . . . . . . . . . . . 138
Part 11/2.The obligation to secure a position for Applicant . . . . . .139
Part 11/3.The Tribunal's obligation to award monetary compensation 140
Part IJ/4. The obligation of the Administrative Tribunal to explain
the basis for its award compensation . . . . . . . . . . . . . 146
Part III. Claim to be reimbursed for costs incurred in proceedings 147
Part IV. Claim relating to recalculation of salary and allowances for
service in Yemen . . . . . . . . . . . . . . . . . . . . 149
Part V. Claim that the Court has authority to award costs . . . . 151
Part VI. The impingement of prejudice on the proceedings of the
Tribunal ..................... . 151
Part VII. Conclusions . . . . . . . . . . . . . . . . . 152
List of Attachments to the comments expressing the views of Mr.
Mohamed Fas/a . . . . . . . . . 155
Persona! Annex of Mr. Mohamed Fasla 156
Annex A to Part 11 . . 156
Annex B to Part Il 164
Supplement to Part IV . 172
List of Attachments to the persona/ annex of Mr. Mohamed Fas/a 175
READING OF THE ADVISORY ÜPINION 177
Correspondence
Nos. 1-39 183WRI'ITEN COMMENTS 103
COMMENTS ON BEHALF OF THE SECRETARY-GENERAL OF THE
UNITED NATIONS ON THE CORRECTED STATEMENT OF THE
VIEWS OF MR. MOHAMED FASLA SUBMITTED TO THE 1NTER-
NATl0NAL COURT OF JUSTICE
New York, January 1973.
I. Nature of the Review by the Court
A. SCOPE OF THE REVJEW
1. The present proceeding is designed to enable the Court to respond, in the
form of an advisory opinion, to two specific questions addressed to it by the
Committee on Applications for Review of Administrative Tribunal Judgements
within the context of Article 11 of the Statute of the Administrative Tribunal
(doc. No. 13). Neither the procedure designed by the General Assembly for the
review of certain aspects of judgernents of the Tribunal, nor the parlicular
questions formulated by the Comrnittee in relation to Tribunal Judgement
No. 158, were intended to open up for consideration by the Court all aspects of
that Judgement (see also the Secretary-General's written Statement of Sep
tember 1972,hereinafter cited as Statement, paras20, 91-92).The two questions
formulated by the Committee (quoted in Statement, para. 19) incorporate by
reference the particular contentions made in the Application submitted to the
Committee by Mr. Mohamed Fasla, the person to whom that Judgernent
relates. These contentions pertain to just threeof the 17daims or pleas (State
ment, para. 15)that Mr. Fasla had submitted to the Tribunal and to which its
Judgement No. 158 relates.
2.The greater part of the statement of the views of Mr. Fasla (Corrected
Statement of the Views of Mr. Mohamed Fasla, December 1972, hereinafter
cited as Views) relates to some ten claims other than the three discussed in his
Application to the Committee on Applications for Review, to which the Com
mittee's questions to the Court referred (see in particular Views, paras. 36-83,
103-106, 111-116). The issues relating to these ten additional daims are there
fore not ones as to which the advisory opinion of the Court was requested, and
consequently should not have been referred to in the statement of his viewsthat
Mr. Fasla requested the Secretary-General to submit to the Court pursuant to
Article 11,paragraph 2, of the Statute of the Tribunal.
3.It is even Jess appropriate for Mr. Fasla now to "amend" the pleas he
had submitted to the Tribunal, as he appears to attempt to do in demanding
restorationof his status quo ante as of Ma1969 (Views, para. 37)or to add nove!
charges, such as the allegation that UNDP took punitive action against him
(Views, paras. 4, 31-32,39, 57-59).
1 Plea m) : reimbursement for legalcosts; plen) damage to professional reputa
tion and career prospects; ple(p or b'): recalculation of emoluments for forcshor
tened stay in Yernen.104 APPLICATION FOR REVIEW
4. Furthermore, the advisory opinion of the Court bas been solicited only
as to whether the Tribunal, in its Judgement No. 158, failed to exercisejuris
diction vested in it or committed a fundamental error in procedure. Since the
sole issue is thus whether the Tribunal acted correctly, this determination can
only be based on the data that were available to or should have been obtained
by the Tribunal. Any material that had not been explicitly submitted to the
Tribunal as part of the pleadings before it (doc. No. 3,Annexes 86-91), induding
the Annexes thereto (doc. No. 3, Annexes 1-84), or was not otherwise available
to it1,should therefore not be considered in evaluating the Judgement of the
Tribunal. This applies in particular to the al!eged incidents related in respectf a
World Food Programme (WFP) shipment (Views, paras. 46-47), the recruit
ment of officers for FAO's Locust Control Project (Views, paras. 48-52) and
the alleged diversion of UNICEF and WHO medical supplies (Views, paras.
54-55), as well as to the relevant supporting documentation (Views, Attach
ments 2-8).
5. Sorne of the incidents now related by Mr. Fasla are even less relevant to
the present proceeding, in that it is clear from his own account that he had, for
various reasons, not reported them fully to UNDP headquarters (Views, paras.
46-47 and 56; see also paras. B4-B5, B7-B9 below). lnasmuch as UNDP was
not currently apprised of these incidents, they could hardly, as Mr. Fasla
continues to allege, have influenced his treatment by that organization-which
was the substantive issue principally in dispute between himself and the
Secretary-General.
B. FUNC110NS OF THE COURT IN THE REVIEW PROCESS
6.The General Assembly has carefully defined and circumscribed the func
tions of the Administrative Tribunal, particularly in Articles 2 and 9 of the
Tribunal's Statute: the former Article specifies the types of allegations that the
Tribunal is competent to hear and judge, and the latter spedfies the remedies
available to it. Under Article 11, paragraph 1,of that Statute, the Court may be
asked to review whether the Tribunal has committed any of four possible
errors specified in that paragraph-of which two are mentioned in the questions
addressed to the Court in respect of the present proceeding. It would therefore
be incongruous for the Court to consider the dispute, as Mr. Fasla repeatedly
suggests (Views,paras. 3, 5-7, 59, 122-125), from a different point of view or in a
wider context than was appropriate for the Tribunal itself.
7. In this connection the Court might wish to take account of the fact that
each judgement of the Administrative Tribunal is supplied to ail Members of
the United Nations. Thus if any judgement should explicitly or imp!icitly
raise policy issues beyond the competence of the Tribunal, it is for the General
Assembly to consider what corrective action might be taken through amend
ment of the Staff Regu\ations or of the Tribunal's Statute, or by inviting the
Secretary-General to take administrative measures.
1 Mr. Fasta's Official Status File, the Joint Appeals Board fileson his two appeals,
and the dossier of correspondence between the Executive Secretary of the Tribunal
and the parties to the proceeding-all referred to in the penultimate sentence of
paragraph 8 to the lntroductory Note to the Dossier submitted by the Secretary
General to the Court in August J972 pursuant to Article 65, paragraph 2, of its Statute. COMMENTS OF THE SECRETARY•GENERAL 105
II. Comments on Substantive Issues
A. A POLICY QUESTION
8. Mr. Fasla 's counsel argues at length ( Views, paras. 3, 6, 3l, 59, 122-125)
the proposition that a staff member whose appointment would not otherwise
be renewed, because of his record of service or for other reasons, should be
specially continued in the service if he had raised serious accusations against
his supervisors or the Organization, in order not to discourage other staff
members from showing sirnilar courage. Plainly, this proposition is not tenable,
since itmight merely encourage staIT members whose appointments are about
to be terminated or not extended to make accusations as Joudly and publidy as
possible so as to obtain for themselves a certain immunity.
9. Furthermore, requiring the Secretary-General to maintain on the staff of
the United Nations persons who, in his opinion, do not rneet the "highest
standards of efficiency, competence, and integrity'' would conflict with his
responsibility under paragraph 3 of Article JOJ of the United Nations Charter.
Thus neither he, nor the Joint Appeats Board nor the Administrati'le Tribunal,
should be required to take as a significant consideration the putative psycholo
gica[ effectthat a personnel action regarding one staff member might have on
others. While the Secretary-General recognizes that there may be situations in
which great care must be exercised lest a legitimate action have the effect of
discouraging other staff members from conforming to a high but difficult
interpretation of their duty, for the reasons indicated below (in particular in
part A of the Annex) the instant case does not present such a dilemma.
B. QUESTIONS CONCERNING THE TRIBUNAL'S STA'fUTE
1. Interpretation of Article 9 (3)
10. Mr. Fasla again asserts ( Views, para. 98), as he did in his Application to
the Committee on Applications for Review (doc. No. 3, para. A6), that para
graph 3 of Article 9 of the Tribunal's Statute obliges the Tribunal, without
giving it any discretion, to award compensation where a wrong cannot be
remedied by relief provided for in paragraph I of that Article. However, as has
already been demonstrated in the Statement (paras. 32-33), that construction is
based on a misinterpretation of paragraph 3. The context of that provision in
the entire Article 9, the plain text of the French version of that provision, as well
as the travaux préparatoires, indicate clearly that the only purpose of the clause
in question is to specify that it is the Tribunal, rather than the Secretary-Oeneral,
that determines the amount of compensation to be paid if the Secretary
General decides not to grant the specific relief provided for under paragraph 1
of Article 9. Thus paragraph 3 was never intended to create an independent
obligation or even a power of the Tribunal to award compensation in circum
stances other than those provided for in paragraph 1.
2. lnterpretation of Articles JO(3) and 11 (J)
11. Paragraph 3 of Article 10 of the Tribunal's Statute specifies that "the
judgements (of the Tribunall shal\ state the reasons on which they are based".
Mr. Fasla argues ( Views, paras. 27, 33) that this provision requires the Tribunal
to ex.plain specifically its disposition of each "plea" that may be submittcd by106 APPLICATION FOR REVIEW
an applicant. However, as has already been demonstrated in the Statement
{paras. 37-40, 43), the cited provision should not be lnterpreted to reguire an
explicit analysis of every plea, as long as the judgement as a whole isadeguately
supported by reasons. This is so because the entire concept of individual pleas
is not one that appears in the Statute of the Tribunal, nor was it even included
in its original Rules. The requirement that applicants list individual pfeas
(Rules of the Tribunal, doc. No. 13, Art. 7 (3)) was adopted by the Tribunal
only in September 1962, over a decade after the Statute had originally been
adopted, and some seven years afterArticle 11 had been added thereto in order
to permit the review of judgements on the ground, ;mer a/i(I,that the Tribunal
had failed to exercise jurisdiction vested in it. The specification of pleas was
only meant to assist the Tribunal in making sure that it had not unintentionally
overlooked any request advanced by an applicant somewhere within the text
of a long application or any further written pleading. But neither paragraph 3
of Article 10 nor paragraph I of Article 11of the Statute should be interpreted
in the light of this subsequent Rule.
12. As also demonstrated in the State111e11 (taras. 39-40), the Tribunal is not
obliged to explain explicilly the basis on which it fixesthe amount of compensa
tion to be paid, since such a requirement is specified, in paragraph I of Article
9 of its Statute, only for the contingency that it should exceptionally order an
indemnity payment higher than the limit of two years' net base salary specified
in that paragraph. Nor can a failure to explain a judgement in sufficient detail
be considered as "occasioning a failure of jus1ice" within the meaning of
paragraph I of Article 11of the Tribunal's Statute, since the General Assembly
did not include in that paragraph, among the issues that might be submitted
10 lhe Court for review, the failure of a judgement to state reasons.
3. Funcrionof the Tribunal
13. The Administrative Tribunal is not an investigating body, as Mr. Fasla
repeatedly suggests (Views, paras. 26a, 45, 59). Rather, it is charged with ad
judicating daims raised by certain persans against the Organization, on the
basis of the pleadings and evidence submitted by the parties. While the Tribunal
may, under Article 10 of its Rules (doc. No. 13),call on the parties to elucidate
certain questions by submitting additional statements and documents, itwas
never intended, either by the General Assembly or by the Tribunal itself, that
it should on its own initiative investigate the background of disputes submitterl
to it-nor is it equipped to do so. Thus there is no ground for suggcsting that
the Tribunal failed to exercise its jurisdiction by not carrying out such investi
gations and thus uncovering the new factual allegations Mr. Fasla is now
presenting to the Court.
14. ln this connection it should be noted that the matters Mr. Fasla now
asserts the Tribunal should have investigated, namely the circumstances of his
service in Yemen, were not at issue in the proceeding before that body. Neither
the conditions prevailing at that post nor allegations concerning certain UNDP
and other international officiais were relevant to pleas based on alleged actions
and omissions of UNDP after Mr. FasJa·s recall from his post.
1S. The only question as to which Mr. Fasla had asked the Tribunal to obtain
further information and as to which the Tribunal was unable to secure such
material, was the alleged report prepared by Mr. Hagen on Mr. Fasla (see
para. 22 below, and the Judgement of the Tribunal, doc. No. 11, part Il {c)).
lt is difficult to see how the Tribunal could have gone further to obtain a docu
ment that UNDP was unable to locate in its files, nor did or does Mr. Fasla CQMMENTS Of THE SECRETARY•GENERAL 107
give any additional leads or suggestions in that regard. Moreover, the informa
tion in such a report, even if favourable to Mr. Fasla, could not have done
more than to support the eva\uations by Mr. Hagen to which Mr. Fasla had
already drawn the attention of the Tribunal (doc. No. 3, Annex 43, and the
passage from the letter-report to which doc. No. 11, part II (b) relates). As
to the other questions he now alleges should have been investigated, Mr. Fasla
did not then provide even the slender but assertedly precise leads now con
tained in his new factual allegations.
C. fACTUAL QUESTIONS
16. The daims and legal arguments of Mr. Fasla are based on a number of
factual assertions, which according to him are either well established, or un
contested, or accepted by the Joint Appeals Board and the Administrative
Tribunal. Actually most of these assertions can and have been controverted,
have not been endorsed by the Board or the Tribunal, and are entire\y unsup
ported by credib!e evidence. Though Mr. Fasla's assertions are largely irrelevant
to the issues properly before the Court, the more basic and general of these
assertions are briefly examined in part A of the Annex.
17. The largest portion of Mr. Fasla's Views consists of an analysis of
practically each one of the p\eas he had submitted to the Tribunal, includîng
both the three that he had specifically mentioned in his Application to the
Committee on Application for Review (sec note I, p. 103),as well as a number
of others that were not included therein. Although it is considered that the
latter group of pleas is therefore not included in the questions as to which the
Court was requested to give an advisory opinion pursuant to paragraph I of
Article 11 of the Tribunal's Statute (see paras. 1-2 above), they arc in part
based on serious charges against the United Nations and several re1ated
organizations as well as against ofllcials of these. Consequently, though con
sidered irrclevant to the present proceeding, these pleas too are bricfly analysed
in part Bof the Annex, mcrely to demonstrate how weakly they are supported
and the basic soundness of the Tribunal's decisions with respect to them. As
the three pleas that are incorporated by reference into the questions addressed
to the Court were already analysed in the Secretary-General's original Statement
(Sec. Il, paras. 20-83), the appropriate passages of that Statement are merely
cited and summarized in the Annex for the convenience of the Court.
III. Procedural Issues
A. REQUESTS FOR DOCUMENTS
J. Letfer /rom Mr. Hagen
18. Mr. Fasla several times requcsts the Court to require production of the
entire text of the letter written by Mr. Toni Hagen, then a consultant to UNDP
and later its Representative in the Yemen Arab Republic, to the UNDP Deputy
Administrator on 9 March 1969 (Views, paras. 26, 43}. This constitutes a
repetition of a plea that Mr. Fasla had submitted to the Administrative Tribunal
(doc. No. 11, p. 1, para. (b)).The latter after studying the text oftheletter,
concluded that only a single passage was relevant (doc. No. tl, part U (b)},I08 APPLICATION FOR REVIEW
which it then ordered to be disclosed to Mr. Fasla, whose counsel thereupon
submitted observations thereon; with respect to the balance of the letter, lhe
Tribunal concluded (at a time when it was already fully familiar with the issues
in the case) that il was not relevant to Mr. Fasla's appeal. Mr. Fasla did not
challenge this part of the Tribunal's Judgement before the Committee, and
therefore should be precluded from doing so now (paras. 1-2 above).
19. UNDP's reluctance to release the balance of the letter, which it too con
siders irrelevant to the present proceeding, is basednot on a desire to obstruct
effective presentation of Mr. Fasla's views to the Court, but rather is an effort
to protect the privilege of confidential reports on investigations made on its
behalf by experts and consultants. lt is feared that if reports written with the
assurance that they wil! remain confidential are later disclosed, thiswillinhibit
the communication of frank views.
2. Correspondence with the Government of the Yemen Arab Republic
20. Mr. Fasla repeatedly requests production of a Jetter he alleges the
President of the Yemen Arab Republic addressed to the Secretary-General on
26 April 1969, to which the UNDP Administrator is said to have responded on
28 May 1969 (Views, paras. 26, 43, 47). lt has been possible to locale a letter
that the Minister for Foreign Affairs of Yemen addressed to the UNDP Ad
ministrator on 26 April !969, to which the latter replied on 28 May under the
reference number cited by Mr. Fasla, as well as a letter from the President of
Yemen to the Secretary-General dated 2 May 1969 and the Secretary-General's
reply there!o dated 14 May. With respect to these letters, which were exchanged
with the Government of a member State, the Secretary-General first had to
obtain the permission of the Yemeni Government for their release-but as
soon as that had been secured the correspondence was made available to Mr.
Fasla for submission to the Court.
21. lt should be noted that an examination of this correspondence did not
disclose anything of direct relevance to Mr. Fasla's pleas. Moreover, since this
correspondence was neither available to the Tribunal, nor had Mr. Fasla asked
the Tribunal to request it, its consideration would appear irrelevant to a de
termination of the correctness of the Tribunal's Judgement (see paras. 1-2 and
4 above).
3. Evaluations of Mr. Fas/a by Mr. Hagen
22. Mr. Fasla asserted before the Tribunal (doc. No. 3, Annex 86, para. 96;
see also doc. No. 11, p. 1, para. (c)) that at the request of UNDP's Bureau of
Administrative Management and Budget, Mr. Hagen prepared a special
evaluation of Mr. Fasla in the summer of 1969. As the Secretary-General
informed the Tribunal, a diligent search of UNDP's files had failed to disclose
such an evaluation. Because of Mr. Fasla's renewed request for this paper
(Views, para. 26a), a further search was made at the present time, which was
similarly unproductive.
4. Report of High-Level Investigation by UNDP
of Its Programme in Yemen
23. Mr. Fasla asserts that following his "exposures" UNDP conducted a
high-level investigation of itsprogramme in Yemen (Views, para. 124). How
ever, aside from the two special visits to Yernen during the spring of 1969 by COMMENTS Of THE SECRETARY-GENERAL 109
Messrs. Satrap and Hagen, UNDP records do not disclose any other missions
or special reports made during 1969 on the programme or on the Resident
Representative's office in Yemen.
5, Dossier of Correspondence with the Administrative Tributtal
24. Mr. Fasla requests that the dossier of correspondence between the
Executive Secretary of the Administrative Tribunal and the parties to the
proceeding in his case be made available to the Court (Views, paras. 34, 105).
This dossier, which is referred to in the penultimate sentence of paragraph 8 of
the Introductory Note to the Dossier of Documents submitted by the Secre
tary-General to the Court in August 1972, will be made available to the Court
should it wish to examine it.
6. Minutes of the Tribuna/'s Consideration of Mr. Fasla's Appeal
25. Mr. Fasla also requests the Court to require the production of the
"minutes" of the Tribunal's proceedings in his case (Views, paras. 34, 105).
However, since no oral proceeding took place on Mr. Fasla'sappeal, no records
whatsoever were kept of any part of the Tribunal's deliberations on this case.
26. Mr. Fasla advances no reasons or justifications for this most extraord
inary request. Even if some minute or record were kept of the private deliber
ations of the members of a judicial body, the requirement that thesebe revealed
and produced in any other proceeding, whether or not of an appellate nature,
would be unprecedented and could not be justified by the practices of other
international or national courts. lt might even be asserted that the privacy of
judicial deliberations is among the general principles of law recognized by
civilized nations (cf. ICJ Statute, Article (1) (c)).
8. CERTAIN ÜBIBCTIONS BY MR. FASLA
1. Contents of the Dossier of Documents
27. Pursuant to Article 65. paragraph 2, of the Statute of the Court, the
Secretary-General in August 1972 transmitted to the Court a Dossier of "ail
documents likely to throw light upon the question(s)" addressed to the Court
by the Committee on Applications for Review. Part I oftha tDossier consisted of
documentation relating to the proceedings leading to the request by the
Committee for an advisory opinion of the Court, while Part Il included docu
mentation "relating to the formulation of Article 11 of the Statute of the
Administrative Tribunal'', Mr. Fasla now considers as ''unacceptable" the
submission of these latter documents (Views, para. l 18), alleging that the
Secretary-General has thereby attempted to "shift the emphasis" from the
questions forrnulated by the Cornmittee to the legitirnacy and powers of that
body.
28. ln submitting the Dossier of Documents, the Secretary-General acted
as required by the Statute of the Court and in accordance with his previous
practice in connection with ail other advisory opinions requested by organs
of the United Nations. ln particular, in connection with the Opinion requested
by the General Assembly on the EJfect of Awards of Compe11sation Made by
the United Nations Administrative Tribunal, he submitted to the Court ail
documents relating to the establishment of the Tribunal. Since that request110 APPLICATION FOR REVJEW
preceded the General Assembly's adoption of Article 11 of the Statute of the
Tribunal, the documentation relating to that Article was not included in that
previous Dossier. Consequently, the Secretary-General considered that, in
order to enable the Court to have a completc record of the establishment of
the Tribunal, including especially the provisions under whîch the present
procecding is taking place, he should supplement that earlier Dossier by
documents relating to the Assembly's consideration of the Statute of the
Tribunal at its ninth, tenth and twelfth sessions.
He further considered that this material may be particularly helpful to the
Court in dedding on how to carry out the special fonction foresecn for it by
the General Assembly in establishing a procedure for the review of judgements
of the Administrative Tribunal.
2. Role of the General Legat Division vis-à-vis the
Administrative Tribunal
29. Mr. Fasla calls attention to a provision of a document on the Organiza
tion of the Secretariat (Sccretary-General's Bulletin-ST /SG B/lJ J)1 specîfying
that among the functions of the General Legat Division is to "represent the
Secretary-General before the Administrative Tribunal and, on request, advise
the Tribunal on legal questions·· (Views, para. 119).He objects that this pre
sents an impermissible conflict.
30. lt is evident that the quoted provision is designed to enable the Tribunal
to secure lega\ adviceon certain general questions relating toits rules, functions,
operations and powers, and that in any event advice can be tendered to the
Tribunal only at its rcquest. As a matter of fact, the Tribunal has never made
such a request with respect to any dispute pending before it,and in particular
it has not made such a request, nor has the General Lcgal Division tendered
any advice (except in the form of regular pleadings), with respect to Mr. Fasla's
appeal. Consequently, Mr. Fasla's procedural objection in this respect has no
bearing on thîs case.
C. REQUEST FOR ÛRAL HEARINGS
31. Mr. Fasla's counsel requested that he be given an opportunity to supple
ment his writtcn statement by an oral prcscntation (Views, para. 127). This
rcquest follows one Mr. Fasla addressed, through the Secretary-Gencra\, to the
Registrar of the Court on 15 November 1972. In view of the Court"s recent
Order denying this request, it is not discussed herein.
D. PUBLICATION OF THE STATEMENT Of MR. FASLA'S Vrnws
32. In the statement of his Views, Mr. Fasla has included a number of serious
but entirely unsupported charges against not only the United Nations and
UNDP, but against several other operations of the United Nations and two
of its specialized agencies; similarly, he has included charges against a number
of individuals identified by name (in particular, Views, paras. 46, 48-52, 54).
By the nature of these proceedings, these organizations, and espedally these
individuals, have not had any opportunity of responding to these charges-or
indeed of formally taking account of them.
1 A copy of which was transmittcd ta the Registrar of the Court on J3 October J972. COMMENTS OF THE SECRETARY-GENERAL 111
33. lt would therefore appear desirable if the Court would take special
account of this unusual situation and consider how the Registrar, in publishing
in the series of Pleadîngs, Oral Arguments, Documents the papers relating to the
present proceeding, can adequately protect the interests of the organb:ations and
individuals mentioned by Mr. Fas.la.
IV. Summary and Conclusions
34. ln his Views, Mr. Fasla ranges far beyond the issues relevant to the two
questions addressed to the Court by the Committee on Applications for Review
of Administrative Tribunal Judgements, and thus inappropriately attempts to
reopen at this time practically ail the issues that had been considered by the
Tribunal in its Judgement No. 158. Not only is the greater part of his statement
devoted to pleas other than the three to which, at his behest, the Committee's
questions relate, but the factual support for his arguments consists largely of
accounts of incidents that he had neither submitted to the Tribunal for con
sideration nor even fully reported to his former employer, the United Nations
Development Programme.
35. Mr. Fasla's appeal, both before the Tribunal and more particularly as
he now presents it to the Court, largely rests on a number of factual assertions
as to his behaviour and the responses of UNDP and its officiais thereto. But
these assertions are almost completely undocumented and unsupported by
any other persuasive evidence, some indeed are directly contradicted by the
record of his own written communications, and many of hîs speculative con
clusions and accusations are inherently implausible (see part A of the Annex).
On the principal issue of prejudice he has, except with respect to a single pers.on
and incident accepted by the Tribunal and reflected in its award, completely
failed to carry the burden of proof that rested upon him. His explanation of his
service record on the basis of ill-will dating back to the beginning of his inter
national service is unconvincing, as is his daim that UNDP has since carried
out a vendetta against him because of various courageous criticisms he a!leges
to have uttered from bis last post (see paras. A1-A2, A1S-Al9, B19-B24 below).
36. To some extent his challenge of the Tribunal's Judgement relates to the
Jatter's interpretation of certain Staff Regulations and Rules, in particular
those concerning the emoluments payable for ternporary assignments away
from Headquarters and those relating to the granting of specîal leave. Here Mr.
Fasla argues for constructions at variance with the clear wording of or the
practice under these provisions, and he raises a number of other issues irrele
vant to the bases on wl:ich the Court has been requested to review the Tribunal's
Judgement (see paras. B39-B44 below). He essays to shift the Court's attention
entirely away from what he alleges was a narrow, technical treatment by the
Tribunal, to certain wider policy issues-which, however, are not of a nature
that the General Assembly ever considered to be proper subjects for judicial
examination or review.
37. Finally, Mr. Fas.la advances a number of bold but untenable assertions
about the powers, functions and duties of the Tribunal. On the one hand he
criticizes it for not carrying out an extensive investigation ofaffairs in Yemen on
the basis of the less than slender leads he had provided, while on the other he
asserts that its discretion as to the form in which it must cast its judgements
and as to the circumstances under which it awards remedies and other collateral
relief are,at least in certain respects-but not necessarily thos.e specified in its
Statute-extremely limited. He therefore refuses to recognize that the Admini-J12 APPLICATION FO:it REVIEW
strative Tribunal had actually ex.amined, conscientiously and ex.tensively,ail
the pleas be had presented to it (including particularly the three referred to in
the questions addressed to the Court), had commented on ail the issues raised
by those pleas in a lengthy judgement formulated consistently with its Statute
and established practices and had thus fully and without procedural error
ex.ercisedits jurisdiction with respect to all the matters presented to it. COMMENTS OF THE SECRETARY·GENERAL 113
Annex
ÀNALYSIS OF FACTUAL QUESTIONS AND OF PLEAS
A. Preliminary Factual Questions•
J. Mr. Fasla's Record of Service
Al. Even before Mr. Fasla's assignment to Yemen, he had at mosta mediocre
record of service-hardly one that can objectively be considered as measuring
up to the "highest standards" required by the Charter (sec para. 9 above).
This is evident, inter alia, from the several periodic reports, both the three
prepared before the expiration of his final appointment and the two prepared
retroactively thereafter, and exduding the one on his service in Sierra Leone
and Yemen which was invalidated consequent on the Tribunal's Judgement
(see Statement, para. 2 (c}, and doc. No. 3, Annexes 9, 13, 14, 21, 22). This
evaluation is reinforced even by the several letters on which Mr. Fasla princi
pal!y reliesto support the propositîon that he would have received more favour
able evaluations on the periods not covered by formai reports or if his rebuttals
and comptaints about certain reports had been properly investigated. Thus the
Resident Representative in Syria, who was the fir&treporting officer on Mr.
Fas la's first periodic report, on 23 December 1965 justified in three detailed
paragraphs his original low evaluation of Mr. Fasla's first year of service, and
merely in conclusion noted that Mr. Fasla's performance during the subscquent
months had somewhat improved (doc. No. 3,Annex 10). The letter of 8 April
1966 from the Resident Representative in Lebanon, on which Mr. Fasla relies
for another favourable passage, is actually largely devoted to a series of excw;es
explaining his evidently indifferent performance: the recent birth of a child, a
previous emotional crisis, adjustment difficulties in his new post, a basically
emotional nature, etc. (doc. No. 3, Annex ll). However, even less favourable
evaluations appear in other correspondence on record, such as the letter of
23 July 1968 from the Acting UNDP Resident Representative in Sierra Leone
(doc. No. 3,Annex 64).
A2. Further evidence of the fact that Mr. Fasla was from the beginning-and
not only as a result of his period of service in Yemen-considered to be Jess
than a valuable staff m'!mber appears from the record of his successive appoint
ments (see Stafement, para. 2 (a)); after an initial two-year contract he re
ceived (instead of a normal extension of two or more years or of at least of one)
only a six-month renewal, followed by another for one year, then one for three
months, and finally one for thirteen months which was later extended by an
other eight; this is hardly the record of a staff member whose services his super
visors wished to secure on a long-term basis. It should also be noted that he had
a number of such supervisors, since during his Jess than five years of active
service he had no fewer than seven separate assignments (Statement, para. 2
(b))-again an indication that his services were not found particularly valuable
in any of the posts that he filled.
1 See para. 16 above.114 APPLICATION FOR REVIEW
2. Circumstances of Mr. Fasla's Assignment to Yemen
A3. Mr. Fasla asserts that he was especially assigned to Yemen to "dean up
the mess" allegedly existing there (Views, paras. 4, 12,40), Aside from the fact
that he presents no evidence for this assertion except his own recol\ection of a
conversation with the late UNDP Co-Administrator (doc. No. 3, Annex 86,
para. 38)-which, even if true, would hardly by itself constitute an assignment
it should be noted that this assertion is inherently implausible: if UNDP
Headquarters was aware of unsatisfactory conditions at one of its posts, to
which it was simultaneously dispatching a new Resident Representative and a
new Assistant Representative, it would hardly give the task of reform to the
considerab\y junior of these officers in both rank and sèrvice.
A4. While Mr. Fasla's assignment to Yemen no doubt took into account
his experience in the Middle East and his knowledge of Arabie, two further
particular reasons for that assignment appear from the record: immediately
previously, he had served together with Mr. Faruqi in Sierra Leone, just before
the latterwas to be transferred to Yemen and before Mr. Fasla's health made it
necessary to withdraw him prernature!y from Freetown, and apparent/y thelr
collaboration there had been sufficiently satisfactory to rnake their practically
sirnultaneous transfer to Ycrnen appear desirable to them and acceptable to
Headquarters. Furthermore, the Health Service concluded that the Yemenl
climate would be suitable for Mr. Fasla's medical problem (doc. No. 3, Annex
80).
3. Circumstances of Mr. Fasla's Reca/1/rom Yemen
AS. lt is one of Mr. Fas\a's important contentions that he was prematurely
reca[led frorn Yemen because of the serious accusations he had made against
his supervisor, Mr. Faruqi, the Resident Representative in Yemen (Views,
paras. 8, 17-18), as well as against the officiais of related agencies working in
Yemen. The facts do not bear this out.
A6. ln the first place, the complaints about Mr. Faruqi that Mr. Fasla
communicated to Headquarters in several letters starting in Dccember 1968
(doc. No. 3, Annexes 33, 35, 37) did not concern corruption or other illegal
conctuct. Instead, these lctters dealt with Mr. Faruqi's style of running his
office, his alleged prolonged absences, administrative confusion, irnpoliteness in
dealing with subordinates (including Mr. Fasla}, the demand for a perhaps
unauthorized advance, etc. The serious accusations of corruption and miscon
duct were made only later, in the course of the proceedings before the Joint
Appeals Board and the Tribunal, long after Mr. Fas!a's recalL Similarly, the
messages he sent to Headquarters about his dealings wit~ FAO, UNICEF, and
WHO officiais (doc. No. 3, Annex 45; Appendix 6 hereto) were either entirely
cryptic or merely replete with minot bureaucratie complaints. Only now, over
three years after his recal! from Yemen, has he set out any concrete, particular
and serious charges.
A7. In this connection it should be recalled that Mr. Fasla alleges that he
himself had first learned of the difficulties at the UNDP's office in Taiz from
his pre-departure briefings at Headquarters (see Views, para. 12). If that was
so, there was no reason for UNDP to be disturbed by and to resent his con
firmation of such information~·
AS. An important reason for Mr. Fasla's recall was his explicit request that
this be done, expressed as early as 17 January 1969 (doc. No. 3, Annex 35,
final paragraph) and as late as 29 April 1969 (doc. No. 3, Annex 47, third and
final paragraphs). In addition he had made repeated demands (doc. No. 3, COMMENTS OF THE SECRETARY-GENERAL 115
Annex 33, Appendices l, 4, 8), starting in December 1968 and continuing
steadily until May 1969, for repatriation of his family to Cnlifornia, for im
mediate home leave (to which he was entitled in Algiers, but whlch he wished
to take in the United States), and for consultations in New York (for which
he gave no convincing reasons).
A9. The final reason for Mr. Fasla's recall was the report written by Mr.
Satrap, Chief of UNDP's Division for Europe, Mediterranean and Middle
East Area, after his brief inspection visit in Yemen which had been solicited by
Mr. Fasla (doc. No. 3, Annex 36), in which Mr. Satrap concluded that although
Mr. Fasla appeared tohave established good relations with the few key officiais
in Yemen he should not be maintained in the Taiz office past the imrnediate
period of Mr. Faruqi's absence. After expressing some doubts as to the means
Mr. Fasla had used to secure the confidence of Yemeni officiais, Mr. Satrap
described Mr. Fasla as not being a person of even temper, and added that his
arguments were more emotional than logical and that he would need to acquire
greater knowledge and experience in administration and programming (doc.
No. 3, Annex 65, paras. VI (i),X).
Al O. Mr. Fasla complains in particular about the suddenncss of his recall.
But it is evident frorn the correspondence between himself and New York that
he had in the previous months constantly importuned Headquarters for an
opportunity to leave Yemen on a shorter or longer basis, culminating in the
above-mentioned letter of29 April 1969 asking for a transfer "as soon as possi
ble" (doc. No. 3, Annex 47, third paragraph). While it is truc that in the cvent
the message recalling him left him little timto arrange his affairs, this does not
appear to have been the intention of the officiais at Headquarters. Itappears
from his Official Status File that the cable asking him to report in New York
by 20 May was drafted on 9 May and dispatched on the 10th, but unfortunately
it arrived only on the 14th. There is no reason to suppose, however, that
Headquarters would not have agreed to a short extension if Mr. Fasla had
indicated that he needed one; indeed, when he cabled his doubt that he cou1d
arrive in New York on time, the rcsponse was that he should merely inform
New York of his revised estimated time of arrivai (Appendices 9 and 10).
4. The Timing of the Decision to Dispense with Mr. Fasla's Senices
At 1. Mr. Fasla asserts repeatedly that a decision had been taken to terminate
his service long before his recall from Yemen. But again, the evidcnce he prcscnts
is not convincing.
A 12. First of all, he asserts that a decision to tcrrninate his appointment was
taken as a result of his letter of 17 January 1969 (doc. No. 3, Annex 35), which
he identifies as "a comprehensive report ... about the derclictions of the
Resident Representative" (Views, paras. 17-18). However, that letter itself
began with the assertion that the Resident Representative had on the instruction
of Headquarters requested his resignation, and that statement, if true, would
obviously imply that the decision to terminate was taken before the letter in
question was sent. Further, and somewhat inconsistently, he asserts that the
decision to dispense with his services resulted frorn disputes over a World Food
Programme shipment (Views, para. 46), because of his recommendations against
the Wadi Zabid Project (Views, para. 52), or because of an investigation he
daims to have undertaken as to the alleged diversion of WHO and UNICEF
medicines (Views, para. 54). However, these are ail mere speculations by
Mr. Fasla, unsupported by any evidence.
Al 3. The only document that Mr. Fasla presents in support ofhis contention 116 APPLICATION FOR REVIEW
that a decision to dispense with his services had been taken while he was stîll
in Yemen is a passage from a letter addressed to him by the UNDP Resident
Representative in Turkey, in which the latter expressed "the hope that [a
refund of $15) will reach you wherever you may be" (doc. No. 3, Annex 43}.
This Mr. Fasla interprets as evidence that somehow his correspondent had
learned of the al!eged decision to remove him (Views, para. 18). However, this
supposition is hardly persuasive. In the :first place there wou1d have been no
reason for the Representative in Turkey to know of a confidential personnel
decision that might have been reached at Headquarters. In the second, if he was
so well informed, he would know that Mr. Fasla was still in Yemen-indeed,
since he had just seen Mr. Hagen who had corne from Taiz less than a week
earlier, he actually knew that Mr. Fasla was still there. Ifhe had any doubts
on that point,itwould have been because of Mr. Fasla's own repeated requests,
which he no doubt also communicated to Mr. Hagen, for an early recall or
at least for consultations or home leave away from Yemen. Thus the quoted
passage appears to be no more than a mere pleasantry.
A14. Indeed, there is no evidence whatsoever that UNDP had decided.that
it would be unable to use Mr. Fasla any further until just before he was in
formed on 20 November 1969 (doc. No. 3, Annex 56) that his contract would
not be extended. lt is true that already in May 1969 there was serious concern
whether any post could be found for Mr. Fasla, and these doubts were ex
pressed in the letter addressed to him on 22 May 1969 (doc. No. 3, Annex 50);
however, in spite of such doubts UNDP in subsequent weeks approached a
number of its Resident Representatives in the Middle East to determine whether
Mr. Fasla could again be assigned to the field (doc. No. 3, Annex 53; Appen
dices 23-24). There is no evidence, nor is it plausible, that this exercise was
undertaken in bad faith and was meant from the beginning to be futile, since
UNDP was not under any obligation to renew Mr. Fasla's fixed-term contract
after it was to expire in December 1969 (see para. Al6 be!ow).
5. Did UNDP Take any Punitive Action against Mr. Fas/a?
A 15. Mr. Fasla repeatedly asserts (Views, paras. 4, 31-32, 39, 57-59) that
UN OP punished him for the accusations he had made as a result of his service
in Yemen and even suggests that the Joint Appeals Board and the Tribunal
agreed with that assertion. However, neither the Board (doc. No. 3, Annexes 2,
67) nor the Tribunal (doc. No. 11) found any evidence of punilive intent or
action against Mr. Fasla-indeed, this was not a charge that Mr. Fasla had
presented to those bodies.
Al6. In this connection it should again be noted that Mr. Fasla's fixed-term
appointment contained no expectation of renewal, as is explicitly stated in each
of his lettçrs of appointment (see in particular the last such letter, doc. No. 3,
Annex 1, part 3) and as the Tribunal has repeatedly held in respect of ap-
1 For example, in Judgement Nos. 94, part XI, and 112,part VI. ln the latter case
it held that "there are no grounds for examiningthe presumedor possiblemotivesfor
non-renewal of the [fixed-term]contract; for in orderto give rise to the possibility
ofconsideringrcscissionof a discretionaryadministrative decisionfor misuseof power,
on the basis of an inquiry into its motivation, that discrctionary decisionmust impair a
right or a legitimateexpectation. On the other hand, the Tribunal cannot, in principle,
undertake an examination of the rcasons or grounds for a decision not to renew {a}
comract where the administrative decision in question does not affect any right or
legitimate expectation, as in the case of a staff member whose appointment ends
simply because its period has expired." COMMENTS OF THE SECRETARY-GENERAL 117
pointments with similar provisions. Moreover his record (see paras. Al-A2
above) would be sufficient to explain the non-renewal, as would the inability
of finding another assignment.
6. Was Mr. Fas/a a Vicfim of Prejudice on the Part of UNDP?
A17. Basic to Mr. Fasla's entire case, as well as to one of his specific pleas,
is the contention that he was and indeed continues to be a victim of delib
erate prejudice on the part of UNDP or of some of its officiais-a proposition
which he claims was accepted by the Tribunal and in connection with which
he cites or refers to many major and minor incidents throughout his Views.
In so far as these instances are relevant particularly to his plea (j), they are
examined in part B.6 below (paras. B19-B24); however, as to the general
question of prejudice it may be uscful to make some preliminary observa
tions,
Al8. First of all, there appears to be a fundamental contradiction in Mr.
Fasla's assertions concerning the prejudice to which he was allegedly exposed.
On the one hand, he suggests that from the very beginning of his service with
UNDP he was subjected to perse.:ution by an elaborate conspiracy, which
concealed favourable and procured unfavourable assessments about him, ar
ranged for unsatisfactory assignments and even inexplicably prevented him
from leaving the Organization when he tried to transfer to FAO. On the other
hand, inconsistently, he also daims that after a basically successful career of
over four years in various UNDP posts he was given the difficult assignment in
Yemen because of his special talents, and was later martyred solely because of
the faithfulness with which he carried out his charge. lt is real!y on that second
assurnption that he bases ail his requests for specific relief, since only if it is
assurned that the prejudice against him was caused by sorne specific event
(i.e., his disclosureof corruption in Yemen) rather than being widespread and
deeply rooted, can one explain the strong insistence on reinstatement (daim
(d)-Views, paras. 36-59) or can one expect that from an impartial re-examina
tion of his past services a signifü:antly more favourable assessment would
emerge.
Al 9. Further, it should be noted that contrary to Mr. Fasla's assertion, the
fora that examined his case earlier did not find any evidence of prejudice by
UNDP or its officiais. Thus, the Joint Appeals Board explicitly stated that it
found "no evidence to indicate prejudice on the part' of officiais at UNDP
headquarters", and though recognizing that there may have been prejudice on
the part of the Resident Representative in Yemen it found no dear evidence to
substantiate that assumption (doc. No. 3, Annex 2, paras. 42-43). The Tribunal
itself found only a single instance of prejudice: the retroactive periodic report
on Mr. Fasla's service in Sierra Leone and Yemen, written by Mr. Faruqi
after both he and Mr. Fasla had left the service of UNDP, and after Mr. Fasla
had published serious accusations against Mr. Faruqi in the course of the
Joint Appeals Board proceedings (doc. No. 11, parts IX-XI); as to the second
reporting officer on that report, the Director of UNDP's Bureau of Admini
strative Management and Budget, the Tribunal found no malice but merely
that he had, perhaps negligently, failed to correct the prejudice shown by the
first reporting officerand thus had improperly a\!owed the report in question
to be placed into Mr. Fasla's fileand to be reflected in a revised Fact Sheet (doc.
No. 11, part XII). Since neither that report nor that Fact Sheet were ever cir
culated, and have since been withdrawn, the effect of the single proven instance
of prejudice was at most extremely limited.l 18 APPLICATION FOR. REVIEW
7. Efforts to Find Another Post for Mr. Fas/a
A20. Mr. Fasla repeated!y asserts ( Views, paras. 6, 22-23) that UNDP not
only made no serious efforts to place him, but indeed tried and is still trying to
discourage other organizations from employing him. Again, the evidence does
not bear out this charge.
A21. Mr. Fasta·s Official Status File shows that in June 1969 UNDP con·
tacted no fewer than three other international organizations (FAO, ILO and
Unesco), several other services of the United Nations (UNIDO, UNCTAD
and the Department of Economie and Social Affairs), the central rccruitment
service of the Secretariat, as well as several of its own field offices (Appendices
11·24). lt is true that in doing so an incomplete summary of Mr. Fasla's em·
ployment record was used, and consequently both the Joint Appeals Board
and the Tribunal found that UNDP's efforts were inadequate {doc. No. 3,
Annex 2, para. 45 ( e) ;doc. No. 11, parts V and Xlll). But there is no evidence
that the extensive correspondence that was undertaken was not in good faith
indeed therc would have been no reason to contact so many agencies except to
find a new post for Mr. Fasla. Aside from the two responses specifically cited
by Mr. Fasla (doc. No. 3, Annex 86, para. 99), in which reference is made to the
unsatisfactory record reflected on the Fact Sheet as a reason for not considering
Mr. Fasta·s candidacy, most of the other services merely indicated a lack of
avaiJable posts, and the ILO in particular stated that it would write Mr. Fasla
directly to obtain more information about his background and experience
(Appendix 21).
A22. While both the Joint Appeals Board and the Tribunal found that the
use of the incomplete Fact Sheet vitiated the efforts of UNDP, itshould be
noted that it probably did so only in a formai sens.e. That is, if the Fact Sheet
had been completed with ail the necessary information about Mr. Fasla's
service, it would not substantially have improved his prospects (see paras. AJ.
A2 above). ln this connection account should also be taken of the fact that the
record of Mr. Fasla's service was incomplete because ofhis frequent changes in
assignment which rarely left his supervisors enough lime to evaluate hîm, and
that during his service he neither complained about not receiving reports on
periods long enough to justify a report nor did he make any special requests
as he was entitled to do-for reports on periods too short to warrant a normal
pcriodic report (see Starement, paras. 23·25, Al ·A8).
A23. Mr. Fasla also presents no cvidence for his assertion that UN OP is
active!y discouraging prospective employer:; from hiring him ( Views, para. 23).
Though Mr. Fasla now asserts that his Jack of gainful cmployment since the
expiration of his UNDP appointment is directly attributable to his service with
the United Nations ( Views, para. 22), in his Application to the Tribunal he
had given as the reason for his inability to find employment his unsettlcd
residency status in the United States (doc. No. 3, Annex 86, para. 123) a
difficultythat was later resolved (doc. No. 3, Annex 88, para. 78).
1
B. Çomments on Specific Pfeas
I. Plea (d): Resrora1ion of the status quo ante
(a) Legat Issues
81. Plea (d) ( Views, paras. 27, 36-59) is one that was not included in the
questions addressed to the Court (see paras. 1.2 above). Moreover, it is one
' See para. 17above. COMMENTS OF THE SECRETARY-GENERAL 119
that Mr. Fasla now attempts to amend and expand (Views, para. :H), a step
inappropriate at the present stage of these proceedings (see para. 3 above).
B2. Mr. Fasla asserts that the Tribunal entirely failed to consider this plea,
and consequently failed to exercise its jurisdiction with respect to it, However,
as demonstrated in the Statement (paras. 28-30), this plea constîtuted merely
one of a series of closely interco.nnected, indeed largely inseparable and dup
licative requests for monetary and other relief that the Tribunal analysed as a
unit in parts 111-XlIl of its Judgement (doc. No. 11), where it discussed the
various questions of responsibility, fault and damage, and fashioned appropriate
remedîes withîn the limits of its jurisdiction. The fact that the Tribunal did
not :;eparately refer to this plea, as well as to most of the others in the series
(d)-(k) and (n), does not mean that it disregarded any of them, but merely
that it followed its usual custom of considering and discussing together closely
related issues. ln doing so it also followed the pattern of Mr. Fasla's own
Application to the Tribunal (doc. No. 3, Annex 86), which, after reciting the
various daims. did not attempt to analyse each one separately either from a
factual or a legal point of view, but instead concentrated on the various
substantive issues: the validity of the periodic reports, the efforts to provide
further employment and evidence of prejudice.
B3. The restoration of the status quo ante would require a renewal or ex
tension of Mr. Fasla 'slast appointment which expired on 31 DeŒmber 1969-
and indeed this is explicitly demanded in plea (d). However, as has already
been stated (para. A16 above), Mr. Fasla had no right to expect such an ex
tension or renewal of his fixed-term contract, and the mere fact that he had
made serious accusations against his supervisor and against other organiza
tions in the United Nations family could not create such a right (paras. 8-9
above).
(b) Factual Issues
B4. lt is not clear whether Mr. Fasla isasserting that United Nations pouches
were used for smuggling even after his arrivai in Yemen (Views, paras. 13, 41,
44). ln any cvent there is no record that hc had ever sent to Headquartcrs
either a formai report or any othcr complaint about the misuse of pouches,
as would have been his clear obligation as pouch officer(doc. No. 3, Annex 88,
para. 56) had he discovered any such violation.
B5. The entire incident conceming his alleged frustration of the diversion of
a World Food Programme shipme.nt (Views, para. 46} appears to be entîrely
irrelevant. In the first place, Mr. Fasla admits that he never reported this incident
to UNDP Headquarters (Views, para. 46, p. 79, supra), nor did he present it to
the Tribunal for consideration (see, thcrefore, paras. 4-5 above). As the Views
thus constitute his first report of this matter, it is after so many years naturally
difficult to establish, especially short notice, the truth or falsity of his allega
tions. ln any event the documentary annexes he submitted to support his
interpretation of the events, consisting of four letters exchanged between him
self and the WFPProject Officer on 21 April 1969 and ofthree cables the latter
sent him three days later, do not support Mr. Fasla's interpretation of con
spiracy or any other malfeasance, but merely indicate some confusion about
the responsibility that various governmental units in Yemen had concerning
the shipment.
B6. lncidentally, the document Mr. Fasla rnistakenly considered and now
cites as the basis of his authority in relation to this incident was completely
irrelevant to that situation. That paper (doc. No. 3, Annex 44, quoted in Views,
para. 46, pp. 78-79, supra) merely constituted full powers to signa so-called120 APPLICATION FOR REVIEW
standard OPEX Agreement I which had no connection with the World Food
Programme and in any event did not give the person authorized to sign any
responsibility concerning operations under the Agreement.
B7. In connection with the same incident, Mr. Fasla also links an alleged
attempt on his lifewith his subsequent recall from Yemen (Views, para. 46,
p. 79), Since he never reported this event to Headquarters-indeed UNDP still
has no other information on it-it is not clear how, even if an assassination
had actually been attempted, it could in any way have been linked to UNDP's
decision to recall him.
B8. Mr. Fasla further complains, in connection with this incident, that his
attempt to report it to Headquarters was frustrated by the latter's refusai to
permit him to return to New York for 24 hours of consultations (Views, para.
47). However, since in his cable requesting such consultations (doc. No. 3,
Annex 45) he merely indicated a wish to discuss inter ali"programme coverage
of our operations in YAR which cannot be discussed in communications", it
would appear that UNDP did not act unreasonably in declining to approve the
expense of such an extended journey for such an unclear reason. Finally, there
is no record, and Mr. Fasla presents no evidence, that he was ever criticized, as
he daims, for addressing his mess.age to two officiais at Headquarters-a
common and unobjectionable practice.
B9. Similarly the entire account of his difficulties in arranging for the ap
pointment of certain persons to participate in FAO's regional Locust Control
Project (Views, paras. 48-52-see also Appendix 27 hereto) appears irrelevant
to the present proceeding since he had not submitted it for consideration to
the Administrative Tribunal. He does assert (Views, para. 52), that in April
I969 he sent to Headquarters "a full report with evidence and supporting
documents sufficient to enable any responsible persan to understand that some
thing unusual was occurring" but that this report was merely filed without any
action. A copy ofthat report, which was in a form ofa letter dated 6 April 1969
addressed to the Assistant Administrator and Director of the Bureau of
Operations and Programming of UNDP, has now been located and is attached
(Attachment 6). C/early that communication does not suggest any malfeasance
or conspiracy, as Mr. Fasla is now alleging, but in .effect merely complains
that FAO's approaches to Mr. Fasla were not in the correct form and that
finally the Organization had sent him a rather strong letter of complaint; a
reader of Mr. Fasla's "report" would th'erefore conclude that he was merely
preparing an explanation or advance defence should FAO's complaint also be
routed to Headquarters, and there was no reason to suspect that the matter
required any investigation by Headquarters.
BIO. Finally, Mr. Fasla speculates (Views, paras. 54-56) that his recall may
have been motivated by another investigation that he claims to have undertaken
into an alleged diversion of medicines provided to the Government of Yemen
by WHO and UNICEF. Again he produces no evidence either of the truth of
his new allegation or of any report that he had written thereon to UNDP
' Standard agreement on operational assistance between the United Nations, the
International Labour Organisation, the Food and Agriculture Organization of the
United Nations, the United Nations Educational, Scientific and Cultural Organization,
the International Civil Aviation Organization,the World Health Organization, the
International Telecommunication Union, the World Meteorological Organization,
the International Atomic Energy Agenc:y, the Universal Postal Union, the Inter
Governmental Maritime Consultative Organization and the Governmcnt of the
Yemen Arab Republic, UN Treaty Series, Vol. 669, p. 46. COMMENTS OF THE SECRETARY-GENERAL 121
Headquarters or to the Organizations concerned, merely stating that this was
one of the matters on which he had wished to report orally had his request for
consultations in New York been granted. Attached hereto are communications
from WHO and UNICEF commenting on these allegations (Appendices
25-26) to the effect that although after so many years and on such short notice
and without any supporting evidence it is impossible to establish definitively
their truth or falsity, the allegations are nevertheless high[y improbable in
view of the nature of the operations of the two Organizations in Yemen during
the period in question.
2. Plea (e):Correction and Completion of Mr. Fas/a's Fact Sheet
BI 1. Plea (e) (Views, paras. 27, 60-62) also is one that was not included in
the questions addressed to the Court (see paras. 1-2 above). Furthermore, this
plea too was one of those considered by the Tribunal as part of the complex of
requests discussed in parts Ill-XIII of its Judgement.
BJ2. The legal basis for the preparation of Fact Sheets and the actual one on
Mr. Fasla were discussed in the original Statemenr (paras. 23-25, Al-AS). It
should also be noticed that the Tribunal did not pass over in silence Mr. Fasla's
request for the correction and completion of his Fact Sheet, but explicitly
considered that plea, and in parts VII and Vlll of its Judgement indicated why
it would not accede toit: itpointed out that since Fact Sheets are solely designed
to summarize information about cunent, departing and former United Nations
employees for use in placement or by other recruitment offices, when UNDP
decided to make no further effort to place Mr. Fasla (see para. B14 below), still
another revision of his Sheet became pointless. The soundness of the Tribunal's
Judgement is not subject to review, since Mr. Fasla's challenge is and can be
addressed only to the exercise of the Tribunal's jurisdiction and to the adequacy
of its procedures.
3. P!ea (g): Further Efforts to Place Mr. Fas/a
Bl3. Plea (g) (Views, paras. 27, 64-65) also is one that was not included in
the questions addressed to the Court (see paras. 1-2 above). Furthermore, this
plea too was one of those considered by the Tribunal as part of the complex of
requests discussed in parts Ill-XIII of its Judgement.
B\4. The Tribunal concluded (doc. No. 11, part XIII), 1easonably on the
basis of the facts presented to it, that there would be no point in UNDP
making further efforts to place Mr. Fasla some three years after its initial at
tempts and two and a half years after Mr. Fasla had left the service of the
United Nations (see also paras. A20·A23 above). In part the futility of re
quiring such a new effort was evidently due to the impossibility of formulating
at such a late date a new Fact Sheet about Mr. Fasla that would more completely
reflectthe quality of his five and a half :,,earsof service (see paras. Al-A2 above)
and at the same time would be significantly more favourab!e than the incomplete
one UNDP had circulated in June 1969 (doc. No. 3; Annex 51). lt was with
special reference to the pointlessness of awarding the specific remedy requested
by Mr. Fasla in this plea that the Tribunal decided to award to him a sum
equal to six months' net base salary.
4. Plea (h): Compensation for Violation of Rules concerning Periodic Reports
BIS. Plea (h) (Views, paras. 27, 66-68) also is one that was not included in
the questions addressed to the Court (see paras. 1-2 above). Furthermore, this122 APPLICATION FOR REVIEW
plea too was one of those considered by the Tribunal as part of the complex
of requests discussed in parts 111-Xlll of its Judgement.
B16. Mr. Fasla's complaints concerning his periodic reports arc analysed at
length in the original Statemenr (paras. 23-25, AI-A8). As is explained there,
most of the violations of which Mr. Fasla complains were merely technical in
nature. The failure to subrnit reports for certain periods was largcly due to his
relatively brief assignments in a series of posts or to the fact that most of his
extensions were for fractional parts of a year. Moreover, during his period of
service Mr. Fasla never complained about the failure to receive the reports
that he now insists should have been prepared, nor did he rnake any formai
request, as is specifically foresccn in the relevant Administrative Instruc
tion (ST/Al/115, doc. No. 16, para. 9), for interim reports in respect of assign
ments too short to justify a rcgular report. Finally, Mr. Fasla presents no
plausible evidence that the missing reports would have presented a signifi
cantly more favourable account of his services, sincc evcn the several letters
he relies on are on the whole far more negative than the particular passages
that he selectively quoted to the Tribunal and now to the Court (see para. A1
above).
5. Plea (i):Compensation for Failure fo Make an Effort to Place Mr. Fas/a
817. Plea (1) (View.r, paras. 69-71) also is one that was not included in the
questions addtessed to the Court (see paras. 1-2 above). Furthermore, this
pica too was one of those considered by the Tribunal as part of the complex
of requests discussed in parts 111-XIIIof its Judgement. The Tribunal did not
confuse pleas (g) and (i)-it rnerely considered them together in view of their
close relationship.
B18. As already indicated above (paras. A20-A23), it is not true that UNDP
made no serious or good faith effort to place Mr. Fasfa in anothcr post either
in its own service or with other United Nations units or with the specialized
agencies that came into question. While these efforts were formally not sufficient
because of the incompleteness of Mr. Fasla's record, on the basis of all the
available facts itdoes not appear that the use of a more eomplete record would
have lcd to significantly greater success.
6. Plea (j):Compensation for lnjury S11stained by Mr. Fas/a as the Resulr of
Prejudice Displayed against Him
B19. Plea (j) (Views, paras. 27, 72-77) also is one that was not included in
the questions addressed to the Court (see paras. 1-2 above). Furthermore, this
plea too was one of those considered by the Tribunal as part of the complex
of requests discussed in parts Il/-XII[ of its Judgement.
B20. As already pointed out (para. A19 above), the Tribunal found evidence
of only a single instance of prejudice displayed against Mr. Fasla: the delayed
periodic report prepared by Mr. Faruqi after both he and Mr. Fasla had already
left the service of UN DP. Neithcr that report, nor the revised Fact Sheet in
which it was temporarily incorporated, was ever circulated outside UNDP's
Personnel Division.
B2l. In his Views (para. 74) Mr. Fasla also advances as evidence of prejudice
the fact that the second reporting officer on his first periodic report (doc. No.
(3), Annex 9: Damascus from 30 June 1964 to 30 June 1965) rnust have been
prejudiced, because he gave him a below average overal! rating cvcn though he COMMENTS OF THE SECRETARY-GENERAL 123
did not personally know Mr. Fasla, and the first reporting officer had marked
the majority of the specific ratings as average. However, it appears that of the
remaining ratings three were indicated as below and only one as above average,
and thus it is clear that the weight of the ratings of the first reporting officer
was on the whole below average. .ln addition, the second reporting officer at
Headquarters had access to other information about the functioning of the
officein Damascus, and could take account of such information in making his
rating. Thus the fact that he conduded that Mr. Fasla's service was on the
whole below average does not prove prejudice.
B22. Mr. Fasla further asserts (Views, para. 75) that the first reporting officer
on that initial report subsequently tried to modify that report, in a letter written
in response to Mr. Fasla's rebuttal. But, as a!ready pointed out (para. Al
above), in that Ietter (doc. No. 3, Annex JO)the first reporting officer, far from
changing his initial conclusions, reinforced them by detailedjustifications-and
merely concluded his letter by the paragraph quoted out of context by Mr.
Fasla, which referred to the period subsequent to the one covered by the
report in question.
B23. Mr. Fasla continues by reciting a series of actual or aUeged incidents
( Views, para. 76), all of which he advances as proof of prejudice evidently
going back to the very beginning of his service with UNDP. Following is an
attempt to comment briefiy on each of these points:
(a) As already pointed out (para. Al above) the "favourable reports" (doc.
No. 3, Annexes IO, 11) that Mr. Fasla alleges were concealed (doc. No.
3, Annex 86, paras. 21, 24-26) were neither formal reports nor were they
particularly favourable. Nor is there any evidence that these letters were
deliberately concealed.
(b) The failure to request periodic reports on the basis of two relatively short
periods of service (six remaining months in Damascus, followed by five
in Beirut) (doc. No. 3, Annex 86, paras. 22, 26) was not the result of
prejudice but followed the normal practice of the Secretariat and the
relevant Administrative Instruction (doc. No. 16, quoted in part in
Statemenr, para. 23 (b)). Mr. Fasla did not then complain of the Jack of
such reports, nor did he makc any effort to request them (see Statement,
paras. A2-A3).
(c) While it is no doubt courteous and generally useful to consult a staff
member·s supervisor before a reassignment, the necessities of the service
do not always permit this to be done, and the alleged failure to do so in
one instance (doc. No. 3, Annex 86, para. 3l) is no evidence of prejudice
against the staff member concerned.
(d) There is no particular mystery surrounding Mr. Fasla's failure to secure
a post with FAO in 1967 (doc. No. 3, Annexes 16-19 and 86, para. 31).
1t is not true that he had been offered a choice of two posts in FAO
rather, a preliminary cable indicating that there might be two vacancies
for which he could qualify was followed by a letter indicating that they
had meanwhile been fi.lied.As pointed out in the Starement (para. 26),
such routine contretemps often occur in any recruitment process, and
Mr. Fasla presents not the slightest evidence that UNDP intervened
against him, nor does he suggest any reason for it to have done so, for
UNDP subsequently extended his appointrnent.
(e) Though Mr. Fasla's periodic report for November 1966 to November
1967 was not signed on behalf of his second supervising officer (doc. No.
3,Annexes 21and 86, para. 331.the first reportingofficerwas hisimmediate. 124 APPLICATION FOR REVIEW
supervisor, and there is no evidence that the normal second reporting
officer was either deliberately circumvented or even that he was actually
present in New York at the tirne the report was written (Statement,
para. AS).
(f) Mr. Fasla served in UNITAR for only some three months (doc. No. 3,
Annex 86, paras. 34-35), and no periodic report is normally prepared
for such a short period, nor did he request one at the time (Statement,.
para. 6).
(g) Mr. Fasla was assigned to Yemen with Mr. Faruqi after both had served
together for some months in Sierra Leone, and both of them had evi
dently beensufficientlysatisfied with their relationship to wish to continue
their collaboration {seepara. A4 above).
(h) Though Mr. Faruqi was by December 1968evidentlydissatisfied with Mr.
Fasla's services and had suggested his recall from the post (doc. No. 3,
Annex 32), there is no evidence, aside from Mr. Fasla's assertion in his
letter of17 January 1969(doc. No. 3, Annex 35, second para.), that Mr.
Faruqi had requested his resignation, and in particular of the fact that he
had done so on instructions from Headquarters. None of the subsequent
correspondence between Mr. Fasla and UNDP's office in New York
alludes to such a request.
(i) There was no concealment of the report that Mr. Satrap made subsequent
to his visit in Yemen in February 1969(doc. No. 3, Annex 65). lt was not
initially included in Mr. Fasla's Official Status File, since basically it
constituted a report concerning UNDP's programme in Yemen. The
passages relating to Mr. Fasla were secondary, and by no means particu
larly favourable (para. A9 above).
{j) Mr. Fasla presents no evidence to support his bald assertion (doc. No.
3, Annex 86, para. 72) that any UNDP official had released any un
favourable information about him to the Permanent Representative of
Yemen (see also Statement, para. 26).
(k) There is not the slightest evidence of any decision to remove Applicant
for alleged errors committed by higher level UNDP and FAO officiais,
nor of any pressure by FAO to remove Applicant (doc. No. 3, Annex
86, para. 79}. Even the newly related incidents concerning Mr. Fasla's
relations with various FAO programmes ( Views, paras. 46, 48-52) do not
yield any evidence of pressure by FAO to remove him.
(/) Again, there was no attempt to conceal a favourab]e assessment of Mr.
Fasla's performance made by Mr. Hagen on the basis of his visit to
Yemen in March 1969(quoted in relevant part in Views, para. 18), but
that confidential report, which was evidently written only a few hours
after Mr. Hagen's arrivai in Tai.:, was not included in Mr. Fasla's file
since it did not primarily deal with him but with UNDP's programme in
Yemen (see also paras. 18-19above).
(m) Asalready pointed out above (paras. Al 1-Al4) there isno evidenceofany
decision taken by UNDP in March 1969 to dispense with Mr. Fasla's
services. ]ndeed, this assertion is inconsistent with Mr. Fasla's simul
taneous complaints that his resignation had been requested as early as De
cember 1968,or on the basis of his January 1969letter, or as a result of
various other incidents both before and after March 1969.
(n) There was no rupture of contact between UNDP Headquarters and Mr.
Fasla during the period March-May 1969.This is indicated by the various
messages included in his OfficialStatus File (e.g., Appendices 5 and 7)
whichdoes not evencontain any communications on purely programmatic COMMENTS OF THE SECRETARY·GENERAL 125
matters. Besides, in Jate March Mr. Fasla was visited by Mr. Hagen and
by early May the message torecall him had been sent.
(o) There was nothing "perplexing" about the consultations with UNDP in
New York in May 1969. They followed on repeated requests by Mr.
Fasla for just such an opportunity (e.g., the message quoted in Views,
para. 47).
(p) Aside from Mr. Fasla's assertion (doc. No. 3, Annex 86, para. 96), UNDP
has not yet been able to discover any evidence of a further assessment
made by Mr. Hagen of Mr. Fasla (see also para. 22 above).
(q) As pointed out above (paras. A20-A22), the efforts to find another assign
ment for Mr. Fasla, while not effective, were certainly extensive and by
no means "conducted in such a way as to ensure their failure".
B24. The Tribunal has repeatedly and reasonably held (for instance in its
Judgement No. 93, part XII) that "the burden of proving prejudice or
improper motivation rests with the Applicant". Mr. Fasla has not sustained
that burden.
7. Plea (k): Compensarion of One Yemeni Rial for Emotional and Moral
Sujfering
B25. Plea (k} (Views, paras. 27, 78-80) is also one that was not included in
the questions addressed to the Court (see paras. 1-2 above). Furthermore, this
plea too was one of those considered by the Tribunal as part of the complex of
requests discussed in parts 111-XIIIof its Judgement.
B26. The Tribunal is not authorized under Article 9 of its Statute to award
"symbolic" damages. To the extcnt that it considered and found that Mr.
Fasla had in any way been morally injured by UNDP, that finding in its Judge
ment constitutes whatever symbolic relief Mr. Fasla might be entitled to.
8. P/ea (1):Compensation/or Delay in Disposing of JAB Case No. 172
B27. Plea ({) (Views, paras. 27, 81-83) is also one that was not included in
the questions addressed to the Court (see paras. l-2 above).
B28. This daim was explicitly considered by the Tribunal in its Judgement,
and Mr. Fasla is thus merely objecting to the Tribunal's decision and not to
any failure by it to exercise jurisdiction (doc. No..11, part XVI).
B29. The Tribunal's conclusion that the delay in disposing of Mr. Fasla's
first appeal to the Joint Appeals Board was not ''abnormal" reflects its famili
arity with the generat speed of proceedings in the Board·, and that evaluation
is not one that should be reviewed by the Court.
9. P/ea (m): Reimbursement for Legal Costs
B30. Mr. Fasla's assertion that the Tribunal failed to exercise its jurisdiction
because ofits refusaito award him any legal costs (Views, paras. 27, 84-95, 121
(6)) was discussed in the original Statement (paras. 44-64). That passage ex
tensively examined both the Tribunal's. limited competence to award costs,
as well as the Tribunal's cautious practice in exercising that power. It pointed
out that the Tribunal has always taken most seriously its decision of principle of
14December 1950(doc. No. 23) that if costs are to be awarded they must have
been unavoidable, reasonable in arnount, and in excess of the normal expenses
of litigation before the Tribunal, and that it is for the applicant to-the Tribunal126 APPLICATION FOR REVIEW
to demonstrate that his daim falls within each of these criteria. But in the in
stant case, except for advancing this daim, Mr. Fasla made no effort at ail to
establish any of these points or even to justify the amount of the daim.
B31. lndeed, he would have had difficulty in proving the reasonableness of
his daim. In partit was for an excessive (by United Nations standards) number
of long-distance telephone ca\ls, for typing and copying services that were
available free to Mr. Fasla·s counsel in the Secretariat, and for travel and
subsistence at a cost which had inexplicably been raised between the original
submission of that daim to the Joint Appeals Board and his later stàtement to
the Committee on Applications for Review (doc. No. 3, Annex 92). Moreover,
the bulk of the expenses was incurred not in respect of the Tribunal proceeding
but in connection with the earlier ones in the Board, even though the Tribunal
regularly has recognized only costs incurred in the proceedings before it and its
authority to go further is most doubtful.
832. Finally, the Tribunal awards costs only if an applicant is substantially
successful in respect of the pleas he advances (Statemem, para. 58, note 3,
p. 47,supra). However, this is not true of Mr. Fasla, who convinced the Tribunal
of the merits of only a minor fraction of his various daims, which il1leraliwerc
for compensation cquivalent to 30 years of net base salary.
JO. Plea (n): Damage to Professional Reputation and Career Prospects
B33. Plea (n) (Views, paras. 27, 96-102, 121 (3)) was the principal one pre
sented by Mr. Fasla to the Committee on Applications for Review, and is
consequcntly dealt with cxtensively in the original StQtement (paras. 21-43).
That passage also includes comments on paragraph 3 of Article 9 of the Tri
bunal's Statute, on which Mr. Fasla particularly relies in this connection
( Views,para. 98)-an analysis that is summarized above (para. 10).
B34. This plea, likc most of the others referrcd to above, was also considered
by the Tribunal as an integra! part of the complex of daims (d)-(k) to which
the greater portion of its Judgement, namely parts Ill-XIII, and the relevant
portion of its award (part XVIII, 1, 2,4) was addressed. To separate out plea
(n) for individual consideration apart from the other dosely related daims,
would have been inconsistent with the Tribunal's usual practice in dealing with
similar seriesof issues, as well as with Mr. Fasla's own presentation (doc. No. 3,
Annexes 86, 88). Furthermore the Tribunal stated at considerable length its
analysis of the factual and legal issues relevant to UNDP's treatment of Mr.
Fasla during the ·months immediatcly before and after the expiration of his
appointment, with particular reference to the efforts made to find him another
post and the papers circulated in that connection. While the amount of the
Tribunal's award in relation to this treatmcnt may have disappointcd Mr.
Fasla, who desired far greater compensation, this is not a matter subjcct to
review under the schcme established by the General Assembly.
B35. With refercnce to the once more reiterated assertion ( Views, para. 101)
that the Tribunal found that the Director of UNDP's Bureau of Administrative
Management and Budget had connived in the distortion of Mr. Fasla's file, it
must be repeated that the Tribunal merely found that he had failed to correct
the prejudice shown by Mr. Faruqi in preparing the periodic report on Mr.
Fasla's service in Sierra Leone and Yemen (see para. A19above). The Tribunal
did not find any "misuse of power with improper motive", nor did it find that
the Director's actions "were motivated by prejudicial considerations". Nor
was therc any ''falsification and distortion" of Mr. Fasla's employment record
(Views, para. 100). COMMENTS OF THE SECRETARY-GENERAL 127
11. Plea (o):Compensation/or Delay in Disposing of JAB Case No. 181
B36. The issues raised by plea (o) (Views, paras. 27, 103-106) are largely
the same as those referred to under heading 8 above (paras. B27-B29).
B37. Mr. Fasla asserts that the Secretary-General's slow decision on the
second report of the Joint Appeals Board was responsible for a one-year delay
in the consideration of the case by the Tribunal. However, the dates of the
submissions of the various reports and pleadings (Siatement, paras. 13-16)
and the time-limits allowed by the Rules of the Tribunal (doc. No. 13, Articles
8 (4) and 9 (1)) do not bear him out. Even if the Secretary-General had acted
more promptly, consideration by the Tribunal at its spring 1971 session would
have been possible only if both Mr. Fasla and the Secretary-General had
waived considerable portions of the normal time-limits for the submission of
pleadings to the Tribunal. On the other hand, the communication of the Sec
retary-General's decision in March 1971 still left ample time for the normal
submission of the case to the Tribunal by its autumn session of that year.
838. Mr. Fasla's requests for additional documents under this heading
(Views, para. 105) arc discussed in section III, A5-A6 above (paras. 24-26).
12. Plea (p): Recalculation of Emoluments for Foreshortened Stay in Yemen
B39. Plea {p) (Views, paras. 27, 107-110, 121 (4)) is also one that was dealt
with at length in the original Statement (paras. 65-83). In that passage the
bases for the payment of United Nations emoluments, depending on the
expected length of a staff mcmber's stay in a particular post, were analysed in
detail.lt was demonstrated, first of ail that the Secretary-General had sufficient
discret ionto decide on the rate and type of emoluments payable for a particular
assignment so that he cou\d have ordered the payments that were actually
made, even if it had been known from the beginning that Mr. Fasla wou\d stay
in Yemen only eight months rather than the minimum of 15 months originally
planned. Moreover, Mr. Fasla's assertion of a right to a retroactive recalcula
tion because the length ofhis actual stay was less than originally p1anned, is not
based on any Staff Regulation or Rule, is indeed inconsistent with their wordîng
and moreover would violate the logic on the basis of which such emoluments
are calculated.
B40. Against the force of these arguments, Mr. Fasla only advances a single
statement made by the Secretary-General's representative in the second Joint
Appeals Board proceeding (doc. No. 3, Annex 67, para. 34)-a statcment open
to various interpretations (see, e.g., doc. No. 3, Annex 90, para. 21)-as well
as the dissenting opinion of one rnember of that Board. ln effect, Mr. Fasla
asserts that the Tribunal erred by not making that dissenting opinion its own
(Views, para. 109). But the correctness of the Tribunal's interpretation of the
provisions of the Staff Regulations and Rules is not a matter to be reviewed by
the Court: paragraph 1 of Article 11 of the Tribunal's Statute only permîts
review of an error on a question of law rclating to the provisions of the United
Nations Charter. Nor can it be asscrted that the Tribunal, which gave extensive
consideration to this question in its Judgement (doc. No. 11, part XV), had in
any way failed to exercise its jurîsdiction or had committed any procedural
error in doing so.
13. Plea (q):Placement of Mr. Fas/a on Special Leave with Full Pay
B41. Plea {q) (Views, paras. 27, 111-116, 121 (5)) is also one that was not
included in the questions addressed to the Court (see paras. 1-2 above).128 APPLICATION FOR REVIEW
B42. Mr. Fasla in effect asserts that bis placement on special Jeave, with full
pay but without his consent (though the Tribunal found that at Ieast initially
he did not object), was equivalent to a "Suspension Pending Investigation"
under Staff Rule 110.4 (doc. No. 15). It should, however, be noted that special
Ieave with full pay (under Staff Rule 105.2) has none of the punitive or accusa
tory attributes of a disciplinary suspension to which Mr. Fasla wishes to com
pare it. The Secretary-General must have the flexibility to decide to place a
staff member on special leave, without however reducing his emoluments,
between assignments or if bis appointment is expiring and there is no short
term job that he might conveniently fil!This flexibility is provided for by Staff
Regulation 5.2, which in this respect supplernents Regulation 1.2.
B43. This p\ea was specifically and individually examined by the Tribunal in
its Judgement (doc. No. 11, part XIV). It therefore cannot be asserted that the
Tribunal had not exercised its jurisdiction and at most the disagreement is
about its interpretation of the relevant Staff Regulations and Rules-a matter
not to be reviewed by the Court (see para. B40above).
B44. Under this heading Mr. Fasla also asserts (Views, para. 112) that he
had not requested permission to go on home leave. This is contradicted by the
record which shows that Mr. Fasla requested home leavein hiscommunications
of 19 December 1968 and 8 February, 12 March, 29 April, 11 May 1969 (doc.
No. 3, Annexes 36, 47; Appendices 1, 4, 8). Jt is true that he desired home leave
in the United States, but as early as 27 Decerriber 1968 (Appendix 2) he had
been informed that he was only entitled to such leave in his home country
(Algeria). COMMENTS OF THE SECRETARY•GENERAL 129
LIST OF APPENDICES TO THE COMMENTS ON BEHALF OF THE
SECRET ARY-GENERAL OF THE UNITED NATJONS 1
1. Cable 568 from Fasla (UNDP, Taiz) to Birt (UNDP, New York), 19
December 1968.
2. Cable from Birt (UNDP, New York) to Faruqi (UNDP, Taiz), 27 Decem
ber 1968.
3. Cable 14 from Birt (UNDP, New York) to Faruqi for Fasla (UNDP,
Taiz), 18 January 1969.
4. Cable 44 from Fasla (UNDP, Taiz) to Birt (UNDP, New York), 12 March
1969.
5. Cable from Vaidyanathan (UNDP, New York) to Fasla (UNDP, Taiz),
17 March 1969.
6. Letter from Fasla (UNDP, Taiz) to M. Cohen (Assistant Administrator and
Director, Bureau of Operations and Programming, UNDP, New York),
6 April 1969.
7. Cable from Vaidyanathan (UNDP, New York) to Fasla (UNDP, Taiz),
8April 1969.
8. Cable 105from Fasla (UNDP, Taiz) to Vaidyanathan (UNDP New York),
Il May 1969.
9. Cable 106from Fasla (UNDP, Taiz) to Vaidyanathan (UNDP, New York),
14 May 1969. .
10. Cable 104from Vaidyanathan (UNDP, New York) to Fasla (UNDP, Taiz),
16 May 1969.
11. Memorandum from Grafteaux (UNDP Personnel, New York) to K. K.
Tsien (Chief, Section for Asia and the Far East, OTC, ESA, UN, New
York), 5 June 1969.
12. Memorandum from Birt (Chief, UNDP Personnel, New York) to B. K.
Whitelaw (Chief, Secretariat Recruitment Service, UN, New York), 9
June 1969.
13. Memorandum from Birt (Chief, UNDP Personnel, New York) to N.
Groby (Chief, Administrative Division, UNCTAD, New York), 9 June
1969.
14. Letter from Birt (Chief, UNDP Personnel, New York) to M. Askerstam
(Chief, Recruitment and Staff Services, FAO, Rome), 9 June 1969.
15. Letter from Birt (Chief, UNDP Personnel, New York) to G. Bolla (Direc
tor, Bureau of Personnel, UNESCO, Paris), 9 June 1969.
16. Letter from Birt (Chief, UNDP Personnel, New York) to A. Aboughanem
(Chief, Emp\oymcnt Branch. ILO, Geneva), 9 June 1969.
17. Memorandum from Birt (Chief, UNDP Personnel, New York) to J. B.
Foran (Chief, Professional Recruitment Section, UNIDO, Vienna), 9
June 1969.
18. Memorandum from F. Caballero-Marsal (Chief, Personnel Section,
UNCTAD, New York) to J. Birt (Chief, UNDP Personnel, New York),
16 June 1969.
19. Letter from M. Schlosberg (Chief, Personnel Recruitment Section, FAO,
Rome) to Grafteaux (UNDP Personnel, New York), 16 June 1969.
' Appendices not reproduced, [Note by the Regisrry.J .,
130 APPLICA TJON FOR REVIEW
20. Memorandum from G. R. Holmes (Chief, Personnel Services, UNIDO,
Vienna) to Birt (Chief, UNDP Personnel, New York), 18June 1969.
21. Letter from A. Aboughanem (Chief, Employmenl Branch, lLO, Geneva) to
Birt (Chief, UNDP Personnel, New York), 23 June 1969.
22. Letter from L. Baltazzi (Chief, Recruitment Division, UNESCO, Paris) to
Birt {Chief, UNDP, Personnel, New York).
23. Letter from Birt {Chief, UNDP Personnel, New York) to M. Sarfraz
(UNDP, Amman), 29 July 1969.
24. Cable 213 from Sarfraz (UNOP, Amman) to Birt (UNDP, New York),
6 August 1969.
25. Memorandum from A. G. Berouti (UNICEF, Cairo) to L. P. Gendron
(Director, Administrative Division, UNICEF, New York), 29 December
1972.
26. Letter from F. Gutteridge (Director, LEG, WHO, Geneva) to C. Stavro·
poulos (Legal Counsel, UN, New York), 11 January 1973.
27. Letter from C. H. Weitz (Director, FAO Liaison Office with the United
Nations, New York) to C. Stavropoulos (Legal Counsel, UN, New York),
24 January 1973.
Note on the Appendices
Appendices 1-5 and 7-24 are taken from Mr. Fasla's Official Status File,
which was available to the Administrative Tribunal.
Appendix 6 is the "full report'' mentioned in Mr. Fasla's Views (para. 52,
first line), reproduced here without the enclosures ail of which are sufficiently
described in Mr. Fasla's lcttcr.
Appendices 25-27 constîtute rapidly compiled comments by UNICEF, WHO
and ILO on the new charges relating to these organizations raised by Mr. Fasla
in his Views{in particular in paras. 46, 48-52, 54-55). 131
COMMENT$ EXPRESSING THE VIEWS OF MR. MOHAMED FASLA
ON THE WRIITEN STATEMENT SUBMIITED TO THE
INTERNATIONAL COURT OF JUSTICE ON BEHALF OF THE
SECRETARY-GENERAL OF THE UNITED NATIONS
INTRODUCTION
1. We have presented our basic contentions as to the merits of the Appli
cant's daims in our Statement of Views, dated 3 December 1972. We will
endeavour to avoid repeating matcrial already covered in that earlier submis
sionto the Court.
2. As a rnatter of fundamental appreciation of the character of Applicant's
contentions about the handling of his employrnent grievances by the United
Nations administrative structure two distinct points of emphasis should be
borne in mind: first, ttechnicalfailures to accord proper treatment as required
by relevant legal materialso the daims of the Applîcant; secondly, the failure
by the administrativereview procedure to take into account rhe basic drcum
stances of injusticthat underlie the treatment of a United Nations civil servant.
3. The inequity to the Applicant results from the interaction between tech
nicalerrors and a failure to inquire into the wider context of injustice embodied
in theApplicant's grievance. To darify this wider context we include for the
information of the Court a Persona! Annex in which Mr. Fasla develops in
his own words some of the reasons why he regards himself to be a victim of
more general tendencies toward employee abuse present within the United
Nations. The basic contention of the Applicant about irregularities of an ex
ceptional character in the operation of the Yemen office of the United Nations
Development Programme (UNDP) is attested to in two extraordinaryletters
from high officiaisf the Yemeni G overnmen t.These Ietters were made available
to the Applicant only on 23 January 1973, but seem very pertinent to any under
standing of the realities in this case. (For tsecsAttachment 1.) The first of
these letters, dated 26 April 1969 from the Hon. Ahmed K. Barakat, the Foreign
Ministerof th& Republic of Yemen, to Paul Hoffman, then the chief admini
strative officerf UNDP. Mr. Barakat has the following statement in his letter:
"Mr. Administrator, I am sure you are aware of the shortcomings which
accompanied UN assistance to Yemen in the past and still continue, but 1
am confident that by bringing this fact to your attention, that things will
fundamentally be changed for the good of the country and for the UN as
well."
In his response of 28 May 1969 (see Attachment 2) Mr. Hoffman acknow
ledges "that UNDP is deeply aware of the problems which have affected your
country in recent years and of the variety of circumstances which have caused
the programme in Yemen to go through certain difficult phases". Mr. Hoff
man also gives assurances that a special effort at reform of the UNDP pro
gramme will be made and indicatcs the appointment of Mr. Toni Hagen to
review the UNDP situation in Yemen. Such an ex.change of letters tends to
confirm in strong terms the basic configuration of circumstanccs pertaining to
the Yemen operations of UNDP, and raises particular doubts as a result of
Mr. Hagen's positive evaluation of Applicant's effort to clean up the mess.
4. A letter from Abdul Rahman Al-Eryani, dated 2 May 1969 (sec: At-132 APPLICATION FOR REVIEW
tachment 3), is even stronger confirmation of Applicant's basic daim that the
UNDP programme in Yemen was being ruined by the corruption of its officers
and that he was victimized by these very officers because he tried to improve
the deplorable situation in line with his oath as a United Nations civî! servant.
President Al-Eryani says in his letter:
"The office of the United Nations Programme Resident Representative
had been functioning under a system which rendered it ineffective.
The United Nations experts were a\so operating under foreign influence,
and were engaged in activities which were far from being the duties for
which they had been originally assigned."
In a letter of response dated 14 May 1969 (Attachment 4) the then Secretary
General of the United Nations, U Thant, acknowledges the situation and
reports on Mr. Hoffman's determination to take steps necessary "to render
UNDP activities in your country truly effectiveand useful". For the Applicant's
relationship to such a situation of extraordinary dereliction to have been ex
cluded from consideration in earlier phases of administrative inquiry in this
case, makes it very plain, it is respectfully submitted, that there was a basic
failure to exercise jurisdiction vested in the Administrative Tribunal and that
this underlying failure contributed to a scries of fundamental errors in proce
dure which caused serious failures of justice as have been contended ail along
by the Applicant.
5. The Applicant believes that the Secretary-General's written statement
seriously distorts the basic issues in contention, as we shall attempt to demon
strate; nevertheless, the Court should bear in mind that the Applicant has had
to prepare his views without the benefit of any expert staff or institutional
resources, such as have been available to the Secretary-General. To remedy,
in part, this imbalance, we would renew in this statement the Applicant's firm
belief in the critical importance of being authorized lo make an oral presenta
tion of his position before the Court. Therefore, the Applicant formally requests
an opportunity to supplement this written statement by an oral presentation
of his position and views this request as a matter of utmost importance.
6. It should be borne in mind by the Court that at each formai stage of this
proceeding certain fundamental points in favour of the Applicant were estab
lished. In particular, the report of the Joint Appeals Board on 3 June 1970,
paragraphs 45 and 46 are important to keep in mind:
"45. The Board nevertheless feelsconstrained to take account of certain
other aspects of this case:
(a) It is evident that very difficult conditions prevailed in the UNDP
Offices both in Syria and in Yemen. By assigning the appellant to
these duty stations, UNDP put him in diffi.cultsituations. Adverse
assessments of his work under these circumstances placed him in a
disadvantageous position with respect to his future assignments with
UNDP or other International Organizations. He thus became a
victim of circumstances not entirely through his own fault.
(b) UNDP did not follow the established administrative procedures with
respect to the periodic reports in this case, since there were substantial
gaps in his service not covered by reports and particularly there was
no report assessing his work for the period November 1967 until his
separation on 31 December 1969.
(c) Similarly the UNDP did not fo\low the required practice with regard
to rebuttals of periodic reports by staff members. COMMENTS OF MR. FASLA
133
( d) Complimentary assessments of the appellant's work in Lebanon were
neither included in his Official Status file nor mentioned on the fact
sheet (attached to the letters to the United Nations and the spedalized
agencies proposing the Applicant's candidacy). The handling by
UNDP of the periodic reports and rebuttals and the decisions as to
what should or should not be placed on the file or the fact sheet was
Jessthan competent.
(e) UNDP's efforts to assign the appellant elsewhere were inadequate
especially since the fact sheet was incomplete. lt is the viewofthe Board
that, as a result of these facts, the performance record of the appellant
is incomplete and misleading and that this seriously affected his
candidacy for a further extension of his contract or for employment
by other agencies.
Recommendations
46. The Board makes the following unanimous recommendations for
the consideration of the Secretary-General:
(i) UNDP should re-examinc the appellant's files with the view to filling
the gaps in the records in accordance with established procedures,
and bringing them up to date with ail required periodic reports and
evaluations of work, which should then be reflected adequately in
the appellant's fact sheet.
(ii)UNDP should make further serious efforts to place the appellant in a
suitable post either within UNDP or with one ofthe other lnternational
Organizations. ·
(iii) IfUNDP faits in these efforts, the Board recommends that an ex
gratia payment equivalent to six months' salary be made to the
appellant."
On the basis of this finding, as votcd by the UN Administrative Tribunal in its
Judgement in Case No. 144, the Respondent referred the recommendations
of the Board to the United Nations Development Programme (UNDP) "for
such action as it may deem appropria te". Among these recommendations were
those involved in remedying the damaging defects in the UNDP official version
of the App!icant's employment record and the correlated subsequent obligation
of the UNDP to "make further serious efforts to place [the Applicant] in a
suitable post" either within the UNDP or some comparable international
institution. And as Judgement No. 158 makes clear the UNDP, although
acknowledging the defects in the cmployment record, refused to take further
steps to secure the Applicant another job. In the language of the Judgement:
"On 31 August 1970, UNDP informed the Applicant that it did not
intend to offer him another appointment in the future, as ail possible
efforts had been made to find a suitable post for him within UNDP or
with other agencies when he was under contractual status with UNDP.
In addition, UNDP stated its readiness to implement the first recom
mendation.
Thus the Respondent does not dispute that the Applicant's file did not
conform to the established rules at the lime when the search for an assign
ment was being made and that the fact sheet transmitted to prospective em
ployers was incomplete, ifnot inaccurate. The Respondent refuses, however,
to acknowledge that, because of this, the efforts made in 1969were vitiated
by a fondamental defect and specifically states that he will do nothing to134 APPLICATION FOR REVIEW
undertake a search for an assignment in a more correct manner. The Tri·
buna! therefore considers that the obligation assumed in the letter of 22
May 1969 has not been performed.
VIII. ln the circumstances mentioncd above, the decision of UNDP to
comply with the recommendation concerning the gaps in the file no longer
had any real point. The preparation of a corrected fact sheet becomes
meaningless once UNDP decided not to take the necessary further steps
to find the Applicant a new assignment. Even assuming, therefore, that
action to complete the filehad been laken in a correct manner, itcould not
per se have any effect on the Respondent's obligation to find a post to
which the Applicant couId have been appointed."
The Judgement went on to support the Applicant's basic contention that his
employment record was not appropriatcly corrected and continued to place
him in an unfavourable position with respect to future employment prospects.
The failure of the Administrative Tribunal to render appropria te relief must be
understood in relation to this documentcd refusai of the UNDP to carry out
eithcr the substance or the spirit of the earlier recommendations of the Joint
Appeals Board. ln turn such a refusai hato beassessed in relation to the under·
lying failure of the UNDP to protect Applicant from damages that fo!lowed
from assigning him the task of straightening out a situation of undisputed
corruption and dereliction in the Yemen office of UNDP. It is the magnitude
of this inequity in relation to the experience of the Applicant in sceking somc
satisfaction for his grievances that is at the centre of his contentions. It is for
this reason, also, that it becomcs evident that the relief and reasoning of the
Administrative Tribunal in its Judgemcnt No. 158 must be unders!ood as
"wocfully inadequate"-that is, to find on the merits so clcarly for the Applicant
and yet to grant relief that does not begin to rectify the wrongs intlicted is to
compound the injustice. The Respondent's statement confuses this prob]em by
its contention that Applicant's complaints were directed toward the inadequacy
of the award rather than, as we have made clear, the li11kbetween the findings
and the relief, i.e., the essenceof the Judgement itself. lt is in this light, we
respectfully submit, that it is necessary to·perceive the cxtraordinary and un·
precedented decision by the Committee on Applications for Rcview of Ad·
ministrative Tribunal Judgcments in relation to Application No. 14 to put
questions to the International Court of Justice that lhere was "a substantial
basis" for review of Administrative Tribunal Judgement No. 158. This sub
stantial basis nccds to be understood in relationto the distinction already made
in paragraph 3. Furthermore., the inquiry into the exercise of jurisdiction and
the possibility of "a fundamental error in procedurc which has occasioned a
failure of justice" needs to be understood in relation to this letlwl discrepancy
between the acknowledged wrongs endured by the Applicant and the meagre
relief granted to hîm. The evidence of lethal discrepancy is substantiated by
the stark reality that as a direct result of ApplicantUNDP experiencc he is at
present both unemployed and unemployable, and as a consequence of such a
demise a victim of continuing psychological suffering of a most intense charac
ter. This Court is the Applicant's only remaining means to mitigate the tragcdy
that has befallcn him. And, furthermore, it is only by rectifying this situation
that it will be possible to restore the morale of the United Nations civil service
and provide some assurance that integrity in the course of employment will be
rewarded rather than punishcd.
7. lt is for the reasons suggested in paragraph 5that the Secretary·Gcneral's
statement is morally disappointing and legally non-responsive. However, it is COMMEl'-TS OF MR. FASLA 135
part of an overall pattern in this case in which the Secretary-General has
preferred to defer toits own bureaucratie structure, in this instance the UNDP,
despite the documented indications that itwas this structure that was responsible
for wrongs to a civil servant. This dcference took extreme formas a consequence
of the Secretary-General's refusai to carry out the recommendation of the
Joint Appeals Board to make the Applicant an ex-gratia payment equivalent
to six months' salary. Given the meagreness of such relief in relation to the
severity of the hardship for the Applicant it is symbolic of a legalistic refusai
of the Secretary-General to consider even the most minimal equities in this
case. As such, it suggests a complete subordination of the individual to the
requirements of bureaucratie defcrcnce, and as such, reinforces the worst
possible tendencies by subordinate civil servants to supprcss information about
wrongdoing within the scope of their United Nations employment. ln the
Written Statement of the Secretary-General the Applicant notes with regret a
complete refusai to consider the issues present in other than an ultratechnical
and inadequately legalistic way. To vindicate such an approach would be very
harmful, it is respectfully submitted, to the whole notion of individual respon
sibility within the United Nations structure. Behind the questions posed to this
Court by the Committee on Applications for Review of Administrative Tri
bunal Judgements lies a great opportunity to require that Applicant receive
fair treatment, both in relation to the scope of i11quiryinto alleged wrongs and
in relation to the quantum of relief appropriate to the severity of the damage
incurred.
8. It is impossibleto assess the proper measure ofreliefwithout first assessing
the underlying facts as to the UNDP response to Applicant's effort to rectify a
scandalous situation of dereliction that prevailed in its Yemen office. As yet,
this prior assessment has never becn made at any of the various steps in this
lengthy proceeding. H is both an acknowledgement of sorts and an understated
euphemism to refer to Applicant's post in Yemen, as did the report of the Joint
Appeals Board, as a "difficult situation(s)"ltis such an understated perception
of these circumstances that helps cxplain what we have called the Iethal dis
crepancy between the damage done to Applicant and the relief decrced. lt is
the pattern of action taken cumulativcly that makes the various steps taken by
the UNDP, the Secretary-General, and the administrative revicw procedure
seem, in aggregate, like such a gross injustice. We would reiterate that only the
top of the iceberg is the subject of the questions put to this Court for an Ad
visory opinion, but that by responding affirmatively to the two questions it will
become possible to reveal the cntirc structure of wrongful damage inflicted on
the Applicant.
9. ln the remainder of this Response, Applicant will attempt to respond on a
technical level to the main arguments put forth in the Sccretary-General's
Written Statement.
Part I. Scope of Review Embod.ied in Questions Addressed to the Court by the
Committee on Applications for Review of Administrative Tribunal Judgements
10. The Respondent's contention in his Written Statemcnt that the questions
presented to the Court are restricted to three daims (damage to professional
reputation, award of costs, recalculation of allowance due to early departure
from Yemen) is without merit and confuses seriously the fundamental charac
cer of Applicant's complaint about procedural errors in the proceedings below.136 APPLICATION FOR REVIEW
In essence, as shown in our earlier submission, the claims of the Applicant's
various pleas arise from separate facets of injury sustained. Itison1y when the
underlying circumstances prevailing in the UNDP office in Yemen are taken
into account that Applicant can be understood to have been the victim of a
pattern of prejudice that has caused him vast and irreparable injury. The fail
ures, for instance, to prepare bis fact sheet properly, or to include favourahle
information and rebuttals in his periodic reports, or the failure to find alterna
tive employment or to execute the recommendation of the Joint Appeals
Board to make further serious efforts in this regard are not capable of proper
assessment without a basic appreciation of the effort to eliminate the Applicant
from the United Nations scene because he acted to clean up the mess in Yemen
and might embarrass the programme by making further damaging disclosures
at some point.
11. The Respondent contends on page 36,supra, paragraph 18,that thèAppli
cant argued fondamental procedural errors in connection withonly three daims.
"In part Ill.D; Mr. Fasla contended that the Administrative Tri
bunal committed fondamental procedural errors in connection with the
same threeclaîms to which parts IILA-C were addressed; the legalquestions
he proposed to have submitted to the Court in this connection were
stated in paragraphs 2 and 4 of part IV."
This argument of the Respondent is extended on the same page, paragraph 20:
"ln addressing its two questions to the Court, the Committee on Ap
plications for Review specified their scope only by reference to the con
nections in the application Mr. Fasla had addressed to it. Consequently
it is assumed that the Court will wish to examine both these questions
with reference only to the three claims specifically referred to in parts
lll.A-C of the Application."
12. Continuing in this misleading vein, the Respondent argues on page 59,
supra, paragraph 97, that:
"The Application submitted to the Committee on Applications for
Review and referred to by the latter in the questions it addressed to the
Court, charges that the United Nations Administrative Tribunal failed to
exercise, in its Judgement No. 158, its jurisdiction with respect to three
out of seventeen daims that Mr. Fasla had submitted to it."
Applicant rejects this erroneous and misleading interpretation of the Re
spondent on the scope of the questions addressed to the Court by the Com
mittee on Applications for Review and contends that the scope of the questions
covers ailof the claims made by the Applicant.
13. ln Part IV of App\icant's application to the Committee on Applications
for Review which is entitled, "Legal Questions to be Certifiedo the International
Court of Justice" the Applicant has listed four questions. The first question
asks whether the failure of the Administrative Tribunal of the United Nations
to fully consider and pass "upon ail the claims presented by an applicant that
are within its jurisdiction constitute a failure to exercise jurisdiction .. ,"
(emphasis added). The second question asks whether the failure of the Admini
strative Tribunal to fully consider and pass "upon ail daims presented by an
applicant that are within its jurisdiction constitutes a fundamental error in
procedure" (emphasis added). Question three, which the Respondent refers to,
presents three specific questions with reference to the Tribunal's failure to
exercise jurisdiction. Question four further stresses the totality of claims; it COMMENTS OF MR. FASLA 137
asks, "Does the Administrative Tribunal of the United Nations commit fun
damental errors in procedure ... when it faits to fuliy consider and pass upon
requests of an Applicant, not analysing and deciding ail claims properly
brought be/ore it, with a reasoned explanation of its conclusions and factual
support therefore?" (Emphasis addcd.)
14. In Section D.2 of the Application, the Applicant also contended:
"Although it was properly seized of theApplication and had the necessary
jurisdiction and competence ... it did not proceed to fully consider and
pass upon various contentions and requests of the Applicant, contrary to
its normal practice and the well-established general principle that a
Court of Justice must analyse and decide all claims properly brought
be/ore it, with a reasoned explanation of its conclusions and factual sup
port therefore." (Emphasis added.)
15. In the Report of the Committee on Applications for Review the wording
of the questions for which the Committee requested an advisory opinion of the
Court seems clear and decisive.
"l. Has the Tribunal failed to exercise jurisdiction vested in it as con
tended in the Applicant's application to the Committee on Applications
for Review of Administrative Tribunal Judgements? (Emphasis
added.)
2. Has the Tribunal committed a fundamental error in procedure which
has occasioned a fai\ure of justice as contended in the Applicant's
application ta the Committee on Applications for Review of Admini
strative Tribunal Judgements ?"
16. The Committee on Applications for Review did not intend to restrict the
scope of the Court's opinion ta only three claims as isargued by the Respondent.
By using the phrase "as contended in the Applicant's application", the Com
mittee could have only meant "all claims properly brought before it" which is
the wording of the application.
17. As further evidence of the Committee's intent, it should be noted that
the argument of the Respondent which appears on pages 36 and 59, supra, of his
statement ta the Court, was presented to the Committee on Applications for
Review on page 2 (Doc. No. 4, A/AC.86/R.60, 1 June 1972),in paragraph 3.
It should be clear from the language of the report of the Committee that no
merit was given to this interpretation and argument by the Respondent at that
time.
18. It seems evident, then, that there exists no basis on which to restrict the
scope of the Court's inquiry to the three daims, as contended by Respondent.
How can the Court assess the Tribunal's procedural and jurisdictional adequacy
with respect ta professional reputation if it did not assess the correlated, but
separate, claim for compensation relating to injury as a result of prejudice
(request (j) in Application to the Tribunal)? How can the Court eva\uate the
claim for award of costs without rclating it ta the separate claim of injuries
sustained as a resultof moral and psychological suffering?
19. It seems evident that Respondent's position on the scope of review is
misleading. At each stage, the Applicant has taken pains to indicate why he
believes himself a victim of multiple injuries giving riseto multiple claims. In
this sense, then, the Committee's reference to the scope of review "as contended
in the Applicant's application" seems decisive. Indeed, a principal contention
of the Applicant relates to the failure by the Tribunal ta consider and provide
reasoned rejections of ail of his claims.138 APPLICATION FOR REVIEW
Part li. The Basis of Fondamental Injuries Inflicted by the Failure of the UNDP,
the Secretary-General, and the Administrative Tribunal to Discharge Their
Legal Obligations
20. Erroneous Ana/ysis by Respondent of the Periodic Reports. The Applicant
relies on Staff Rule 112.6:
"Rule 112.6
Service and Conduct Reports
ln the professional category and Jower salary levels, the service and con
duct of a staff member shall be the subject of reports made from time to
time by his supervisors. Such reports, which shall be shown to the staff
member, shall form a part of his permanent cumulative record." (Doc.
No. 15.)
This general provision is detailed in Administrative Instruction ST/Al/115
(doc. No. 16). But as the Applicant was a former staff membcr of UNDP Field
Office, he is also subjcct to the rules governing the personnel of UNDP field
offices (UNDP Field Manual Edition 11, DP/4, Section IV-B, Title: Field
Office Staff International) which provide stringcnt regulations 9f their own in
relation to the preparation of periodic reports.
21. UNDP Field Manual Section IV, b-4, which governs the international
staff, UNDP Field Office, states the fol\owing under subsection 13:
"13. Periodic Reports
Periodic performance reports are required for ail internationally rc
cruited staff beJow the rank of Djrector (D-2), including General Service
staff detailed to UNDP offices from headquarters posts, and Field Oper
ations Services staff detailed to UNDP. Reports shall be made at the
following times:
(a) on the first annivcrsary of the staff member's appointment or assign
ment, for staff serving under a fixed-term appointment, or
(b) on the second anniversary of the staff member's appointment or as
signment, for staff serving under a permanent appointment,
( c) on the occasion of the transfer or assignmcnt to other duties of the
staffmembcr, if a period of at least six months bas lapsed since the
previous performance report,
(d) on the occasion of the transfcr or the reassignment of the supervisor
of the staff member if the staff membcr has served under such super
vision for at lcast six months and at least six months have lapsed since
the previous performance report,
( e) if a change in the contractual status Ofthe staff membcr isrequested,
or if he is recommended for promotion, provided that more than six
months have lapsed since the previous report."
22. Special Reports.
In addition to the periodic reports, spccial reports should be made (not on
the standard report form) consisting of a statement and evaluation of the rele
vant facts:
(a) when there is a decision to withhold the within-grade increase because of
unsatiSfactory service;
(b) when there is a decision or recornmendation involving discipJinary
action or suspension or termînation. COMMENTS OF MR, FASLA 139
Such reports shou\d be brief and relate directly to the facts requiring the
action.
Special reports recommending the refusai of a within-grade increase must
be submitted before the increase is due.
23. Preparation of Periodic Reports.
"Periodic reports should be made on Form P-91 for staff in the pro
fessional category and on Form P-93 for General Service, Field Staff and
Manua\ workers. These forms are available both in Eng!ish and in French.
When a report on a staff member is required, the form will normally be
sent by the Personnel Branch, BAMB to the Resident Representative, who
should complete and sign the first section of the report which covers in
detai\ most aspects of a staff member's performance. With regard to perio
dic reports of Staff members in General Service or Field Service Level,
Resident Representative, if appropriate, should consult with the immediate
supervisor of the staff member when completing the first section of the
report.
The second section will be cornpleted by a supervisor next in line who is
not lower in rank than Division Chief, and the third section will be signed
by the Administrator, Co-Administrator or Bureau Director, who will
then be able to add his comments, if any.
Instructions for completing the forms are given on the back of each
copy. The staff member who is the subject of the report, whether it is a
regular or interim one, shall be given a copy of it when ithas been com
pleted. He must then sign the statement on the report that he has seen
it and has reccived a copy. If he wishes, he may make a written statement
in explanation or rebuttal of part or aU of the report and this must be
attached to the report to which it rcfcrs. Where a staff member makes such
a statemcnt, Headquarters will investigate the case and will record his
appraisal of it in writing. This record will be filed \ogether with the
report and the staff member's statement.
/tis tire dury of supervisors to be sure that periodic reports are prepared
by them, as indicated in paragraph 13 (c) and (d) above, either when the
supervisor himself is transferred, when Iremust report onal/ the staff members
who have sen-ed u11der/lis supervision for six months or more, or when the
staff member is transferred a/ter six months or more of service 1mder the
same supervi.sor,provided in both cases that at least six momlzs have e!apsed
since the previous report."(Emphasis added.)
24, Applicant contends that the Tribunal never properly asscssed the daims
relating to Applicant because it never assessed the obligations of the Respon
dent in relation to the special additional rules governing the preparation of
periodic reports as these are contained in the UNDP Field Manual.
l'art 11/2
25. The Obligation to Secure a Position for Applicant. The JAB in its report
of 3 June 1970 included as a unanimous recommendation that the "UNDP
should make further serious efforts to place the appellant in a suitable post
either within UNDP or with one of the other International Organizations".
The Administrative Tribunal construes the response of the UNDP Personnel
Division to this recommendation as ·'aformai commitment" by the Respondent
to find another assignment for the Applicant. As the Tribunal's Judgement140 APPLICATION FOR REVIEW
suggests, "Such a commitment to make 'every effort' obviously implies an
obligation to act in a correct manner and in good faith". And, finally, the
Judgement concludes that the UNDP's refusai to make such further efforts
after correcting his fact sheet did entitle Applicant to an award of a sum equal
to six months' net base salary.
26. But such a disposition of the issue is insufficient because it did not re·
spond to the well-founded contention by the Applicant that this failure to make
further efforts at UNDP Headquarters was a continuation of the prejudice
generated by his conscientious discharge of his dulies in Yemen. lt was not
possible to achieve an equitable measure of relief without such a further inquiry
as to the extent and seriousness of prejudice. If the alleged prejudice did exist,
then the award of compensation made no sense whatsoever. Such an award
could only secm reasonable if the Respondent had been negligent in discharging
its obligation toward the Appllcant to make further efforts. In any event, Ap
plicant was entitled to a reasoned rejection of his contention on the prejudice
issue.
27. Furthermore, there is a special obligation to maintain an employment
relationship on the part of an employee in the UNDP field operations. This
has been recognized in special sets of rules and regulations issued in relation
to UNDP personnel.
28. Because of the nature of these considerations we refer the Court to a
Persona! Annex prepared by Mr. Fasla to convey his appreciation of why he
has been a victim of injustice on these matters. Itseems clear, however, that at
minimum the failure of the Administrative Tribunal to take account of these
two aspects of the UNDP's formai commitment to secure a further assignment
for Applicant was a serious failure "to exercise jurisdiction", as well as a "fun
damental error in procedure which has occasioned a failure of justice".
Part Il/3. The Tribunal's Obligation to Award Monetary Compensation
29. On page 41, supra, paragraphs 32 and 33, the Respondent argues that
only·the Secretary-General isempowered to award compensation. Specifically
Respondent contends that:
"32. The power of the Administrative Tribunal to award compensation
derives from paragraph 1 of Article 9 of its Statute (doc. No. 13). lt is
there specified that while the normal relief to be ordered by the Tribunal is
the rescinding of the decision contested or the specific performance of the
obligation invoked, the Secretary-General may decide that in the interests
of the United Nations an applicant should instead receive monetary corn·
pensation. Such compensation is thus conceived of as an alternative to
specific performance, to be chosen, not at the discretion of the Tribunal or
of the applicant, but solely of the Secretary-General. The amount of com
pensation that may be granted is also limîted by that provision of the
Tribunal's Statute (to the equivalent of two years' net base salary), though
provision is made for increasing this amount under exceptional circum
stances.
33. Mr. Fasla was mistaken inarguing, in his Application to the Commit
tee for Review, that paragraph 3 of article 9 of the Tribunal's Statute
obliges (emphasis added) the Tribunal, without a\lowing it any discretion,
to award compensation where a wrong cannot be remedied by the relief
provided for in paragraph J of that article (doc. No. 3, para. A.6). Instead COMMENTS Of MR. fASLA 141
it is clear from the text of paragraph 3, in particular in its French version
(lorsqu'il y a lieuà indemnité,celle-ci est fixéepar le Tribunal), that the
only purpose of the clause in question is to specify that while it is the
Secretary-General who is empowered to determine the circumstances under
which compensation should be paid rather than specificrelief granted, it is
the Tribunal that determines the amounl of such compensation. This
interpretation is also supported by the history of article 9. Thus the only
circumstances under which monetary compensation may be awarded by
the Tribunal are those specified in paragraph 1 of article 9 of its Statute."
30. ln order to clarify the issue raised by the Respondent, the Applicant
draws the attention of the Court to the Applicant's application to the Com
mittee for Review of Judgements of the United Nations Administrative Tri
bunal. The Applicant had then devoted eight paragraphs (A1 to AS) to this
issue. Since the Respondent continues to challenge the power of the Admini
strative Tribunal to award compensation, the Applicant would like to remind
the Court of the views he then expressed; these views have been implicitly
endorsed by the Committee which proceeded to request an advisory opinion
frorn the Court. The Applicant's application to the Committee for Review of
Judgements of the United Nations Administrative Tribunal expressed clearly
the basis of Applicant's contention on the award of compensation:
"Al. The Applicant contends that the Administrative Tribunal of the
United Nations failed to exercise its jurisdiction within the meaning of
Article 11, section l, of the Statute of the Administrative Tribunal in that
the Tribunal did not ful\y consider and pass upon Applicant's claim for
damages for injury to his profcssional reputation and future employment
opportunities caused by the Respondent's misuse of powers with improper
motive as found by the Tribunal.
A2. Applicant asserts that the competence and jurisdiction of the
Administrative Tribunal are defined in Articles 2 and 9 oflhe Statute ofthe
Administrative Tribunal, and in relevant judgements handed down by the
Tribunal under the powers accorded it in Article 2, section 3.
A3. Article 2 reads as follows:
Article 2
l.The Tribunal shall be competent to hear and pass judgement upon
applications alleging non-observance of contracts of employment of
staff rnembers of the Secretariat of the United Nations orof the terms of
appointment ofsuch staff members. The words 'contracts' and 'terms of
appointment' include ail pertinent regulations and rules in force at the
time of alleged non-observance, including the staff pension regulations.
2. The Tribunal shall be open:
(a) To any staff member of the Secretariat of the United Nations even
after bis employment has ceased, and to any person who bas
succeeded to the staff member's rights on his death;
(b) To any other person who can show that he isentitled to rights under
any contract or terms of appointment, including the provisions of
staff regulations and rules upon which the staff member could have
re!ied.
3. ln the event of a dispute as to whether the Tribunal has competence,
the malter shall be settled by the decisionof the Tribunal.]42 APPLICATION FOR REVIEW
4. The Tribunal shall not be competent, however, to deal with any
applications where the cause of complaint arose prior to 1January 1950.
A4. Article 9 reads as follows:
Article 9
l. If the Tribunal finds that the application is well founded it shall
order the rescinding of the decision contested or the specific performance
of the obligation invoked. At the same time the Tribunal shall fix the
amount of compensation to be paid to the applicant for the injury
sustained should the Secretary-General, within thirty days of the
notification of the judgement, decide, in the interest of the United Na
tions, that the applicant shall be compensated without further action
being taken in his case; provided that such compensation shall not exceed
the equivalent of two years' net base salary of the applicant. The Tribunal
may, however, in exceptional cases, when it considers it justified, order
the payment of a higher indemnity. A statement of the reasons for
the Tribunal's decision shall accompany each such order.
2. Should the Tribunal find that the procedure prescribed in the Staff
Regulations or Staff Rules has not bcen observed, it may, at the request
of the Secretary-General and prior to the determination of the merits,
order the case remanded for institution or correction of the required
procedure. Where a case is remanded, the Tribunal may order the pay
ment of compensation, not to exceed the equivalent of three months'
net base salary, to the applicant for such Joss as may have been caused
by the procedural delay.
3. ln a\l applicable cases, compensation shall be fixed by the Tribunal
and paid by the United Nations or, as appropriate, by the specia\ized
agency participating under Article 14.
AS. Applicant argues that by the terms of Articles 2 and 9 of the Statute
the Tribunal was competent and had jurisdiction to award compensation
to Applicant for the injuries done by Respondent to Applicant's profes
sional reputation and future employment opportunities (proof of which
was submitted to the Tribunal, see Annexes 52 and 53, and see, infra,paras.
A8-AIO), and that the Tribunal failed to exercise such competence and
jurisdiction in that it did not award either damages or other specific relief.
For example, gaps in the Applicant's employment record which were still
in existence were not completed, favourab\e comments and letters were not
included in the dossier, and the Tribunal did not order the Applicant's
fact sheet to be corrected. The award of damages granted by the Tribunal
was solely in compensation for Respondent's failure to take ail reasonable
sreps to fulfilils !egal obligation ro find another position for Applicant
(See Annex 25, para. XI!!.)
A6. Article 2, section 1, of the Statute specifica\ly permits the Tribunal
to 'hear and pass judgement' upon disputes relating to employment con
tracts of Secretariat staff members and the terms of employment relating
thereto. Applicant does not believe that there is any doubt, nor has there
been any such claim, that a decision on the instant matter is within the
competence of the Tribunal as stated in Article 2. However, Article 9,
section 3, states that where applicable, 'compensation shall be fixed by the
Tribunal' (cmphasis added). The use of the imperative is to be noted.
Applicant submits that the correct construction of section 3 of Article 9
deprives the Tribunal of any discretion to refrain from awarding compensa- COMMENTS OF MR. FASLA 143
tion where the wrong cannot be remedied by the relief provided for in
section 1 of Article 9; where the facts underlying the allegation of wrong
have been accepted by the Tribunal; and where facts substantiating the
direct injury caused by the wrongful acts have been submitted to the
Tribunal. Applicant concludes that the failure of the Tribunal to provide a
remedy in such case is a failure to exercise jurisdiction and that an appeal
to the International Court of Justice is thus mandated by Article 11, sec
tion 1 of the Statute.
A7. Applicant furthcr points out, in support of his allegation that the
Tribunal failed to exercise its jurisdiction, that the Tribunal not only did
not award compensation, but did not even discuss the claim. Nowhere in
the judgement on which appeal is sought did the Tribunal deal with the
merits of this particular claim for damages, although it did find that Ap
plicant's personnel record and fact sheet (which was circulated to potential
cmployers) had been maliciously distorted. The rejections of several em
ployers and Applicant's still-incomplete personnel file have seriously
compromised his professional reputation and employment opportunities."
31. Paragraphs AI to A7 help establish thrcc basic points.
(l)According to Article 2 (1), the Tribunal is competent to "hear and pass
judgement upon applications alleging non-observance of contracts of em
ployment of staff members". Since the word "con tract" includes "ail pertinent
regulations and rules", it also includes the responsibility of the employer to
maintain working conditions under which the employee cou Idput his capability
to effective use; the employer has an underlying commitment to sustain or
even enhance, but certainly not to injure, his employee's professional reputation.
(2) Furthermore, according to Article 9, paragraph 1, the Secretary-General
can provide compensation only as an alternative to specificperformance ordered
by the Tribunal. He is not empowered to determine "under which circumstances
compensation will be paid", as the Respondent suggests, but whether compensa
tion rather than specific performance would, under special circumstances, best
serve the interests of the United Nations. Thus, the Tribunal is obliged, if an
application is well founded, to rescind the decision contesteô and order specific
performance.
(3) Not only did the Tribunal fail to award compensation, i.e., order the
performance of an obligation, but it did not even discuss the claim. Thus, on
two grounds the Tribunal failed to exercise its jurisdiction.
32. The Respondent's arguments regarding the Secretary-General's dis
cretionary power to award compensation, raise the issue of separation of judi
cial from executive po ,vers. This issue was clearly settled by the International
Court of Justice's decision in 1954. ln that determination the International
Court of Justice stated that:
"The International Court of Justice in ils advisory opinion held that the
Tribunal was an independent and truly judicial organ, and based this con·
clusion on a detailed examination of the Statute of the Administrative
Tribunal. The Court rejected the view that the Tribunal was merely a
subsidiary organ of the General Assembly, which the latter had established
to assist it in the performance of its own fonctions. The Court pointed out
that the Charter did not confer judicial fonctions on the General
Assembly, and went on to say:
'By establishing the Administrative Tribunal, the General Assembly
was not delegating the performance of its own fonctions; itwas exer-144 APPLICATION FOR R.EVIEW
cising a power which it had under the Charter to regulate staff relations.
In regard to the Secretariat, the General Assembly is given by the Char
ter a power to make regulations, but not a power to adjudicate upon, or
otherwise deal with, particular instances 1 "'.
The Court's statement was an effort to resolve a controversy between the Sec
retary-General and the Fifth Committee of the General Assembly on precisely
the same issue that Respondent now raises.
33. The Secretary-General had then argued that compensation should be the
rule rather than the exception:
"83. Experience has indicated that, particularly in cases involving
termination of appointment, where the Tribunal finds that the application
is well founded, the payment of compensation should be the rule rather
than the exception. lt is normally not in keeping with the interest of good
administration to reinstate an employee whom the Secretary-General has
considered it necessary to terminale. At the same lime, from the point of
view of the staff member, it is not desirable to require a new finding by the
Secrctary-General that reinstatement is 'impossible or inadvisable', ad
ministrative experience and considerations indicate that the normal reac
tion, in case a decision of the Secretary-General is not upheld by the Ad
ministrative Tribunal, shou\d be the payment of compensation. ln those
circumstances, however, where the Secretary-General believes that it
would not be disadvantageous to rescind his decision, he should have the
option of offering such rescission to the Applicant in lieu of the compensa
3
tion ordered ."
34. The Fifth Committee however, as it will be remembered, explicitly
rejected this view. In its report to the General Assembly it stated that:
"51. Sorne representatives opposed any action on this subject because
they believed it undesirable to lamper wilh the Statute of the Admini
strative Tribunal in a way which might alter the existing balance between
the power of the Secretary-General and of the Tribunal. Furthermore, it
was pointed out that in many national administrations, reinstatement was the
normal remedy, and that compensation was not a satisfactory substitute for
the loss of employment. Other representatives agreed that compensation
shou/d be the ,ru/e bu/ did 1101favour a rigid ceiling theron. To accept the
proposed amendment, they believed, might reduce the Administrative
Tribunal to a body whose sole function would be to approve or disapprove
the grant of previously determined indemnities. On the other hand, op
position was also expressed on the ground that ilwould be contrary to
Article 17 of the Charter to approve in advance a limlt below which
awards made by the Tribunal would not be subject to budgetary review by
the General Assembly.
52. There was general acceptance of paragraphs 2and 3of the Secretary
General's proposed revision of Article 9 of the Statute of the Admini
strative Tribunal, and these paragraphs were not discussed in substance
1 Repertory of Practice, UN Organs. Arts. 92-111, of the Charter, Vol. 5, p. 258,
para. 140.
2 Ejfect of Awards of Compensation Made by the Unired Nations Administrative
Tribunal,/.C.J. Reports /954.
3 G.A. 782B (VIII),Annexes,at S 1,A/2533. COMMEN1'S OF MR. FASLA 145
by the Committee. The view was expressed by one representative, however,
that there shou/d be no limit on the compensation for loss caused by a pro
cedural delay 1•''
35. Thus, the claim that the Secretary-General alone has the discretionary
power to award compensation is totally unfounded, especially if one takes into
account the overaU background of legal authority. lt is interesting to note
here, that a!though the Respondent argues that his views are ··supported bythe
history of article9" (p. 42, supra, para. 33),he fails to mention the debate on the
issue and the International Court of Justice's Opinion of Ju1y 1954. He refers
the Court only to the Secretary-General's report that was prepared at the time,
which is obviously self-serving and naturally supports his own views. Further
more, it is interesting to note that the Respondent in his written statement
devotes no less than five paragraphs (27-31) to the Tribunal's decision with
respect to the claim for damages; not once does he mention that the Tribunal
was not empowered to award compensation of six months' salary because of
the damages suffered by Mr. Fasla 1•In paragraph 30, for example, where the
Respondent analyses at length the compensation award, he assumes that the
Tribunal fully exercised its jurisdiction on the subject. This contradiction .should
be noted by the Court.
36. In the recitation and analysis of Article 9 of the United Nations Ad
ministrative Tribunal, the Respondent insists on what he calls the usual limit
of two-years' net base salary, as compensation. The Applicant contends that
when the General Assembly amended Article 9, in December 1953, it did not
impose a rigid ceiling on compensation. The report of the Fifth Comrnittee to
the General Assembly (G.A. 782, B (VIU) A.l.51) which has been cited above,
states inter alia:
"Other representatives agree that compensation should be the rule but
did notfavour a rigid cei/ing, thereon. To accept the proposed amendment,
they believed, might reduce the Administrative Tribunal to a body whose
sole function would be to approve or disapprove the grant of previously
determined indemnities. ·on the other hand, opposition was also expressed
on the ground that it would be contrary to Article 17 of the Charter to
approve in advance a limit below which award made by the Tribunal
would not be subject to budgetary review by the General Assembly."
(Emphasis added.)
37. Articl~ 9 itself, despite its ambiguity, makes clear that in exceptional
cases the Tribunal mr.y consider it justified .to order the payment of hîgher
indemnity. Parenthetically, it should be noted here that Article 9, amended in
1953 under political pressure, was directed to curb the power of the Tribunal.
Such a statement therefore assumes greater importance and weight if one con
siders the general atmosphere of the period in which Article 9 was amended.
38. Following the opinion of the International Court of Justice in July 1954,
the General Assembly decided by resolution 888 (IX), on 17 December 1954,
to create a Special Fund:
1
G.A. 782B (VIII), Annex A.1.51, A/2615, Report of the Fifth Committee to the
Ge2eral Assembly (emphasis added).
However, the Tribunal made itclear on pp. 18f, para. Xlll, of its Judgement that
this compensation came "in lieu of specific performance" as had been customary in
.similar cases.\46 APPLICATION FOR REV!EW
(a) As from l January 1955 there shall be established a Special Fund.
(b) Notwithstanding the provisions of Article 7 of General Assembly
Reso\ution 359 (IV) of 10 December 1949, and the provisions of finan
cial regulalions 6, 1 and 7, 1, the Secretary-General is authorized to
transfer to the Special Indemnity Fund from the income, on I January
1955, an amount of $250,000 and in 1 January 1956 such amount as
will, when added to the balance remaining in the Fund of that date
bring the credit in the fund up to an amount of $250,000.
( c) The Secretary-General is authorized to charge against the fund ail
payment to staff members of the UN arising out of award of compen
sation made in accordance with its Statute by the UN Administrative
Tribunal•."
39. The adoption of the resolution 888 (IX), one year after the amendment
of Article 9, is evidence of the willingness of the General Assembly to overcome
the ambiguity of Article 9. In adopting resolution 888 (IX), the General As
sembly has in effect lifted any limitation on the award of compensation; by
setting up a fund of $250,000 to be annually sustained, the General Assembly
implicitly recognized that the compensation award should not be limited by
some arbitrary amount.
Part II/4
40. The Obligation of the Administrative Tribunal to Explain the Basis for
/ts Award of Compensation. Applicant believcs that the Tribunal committed a
fondamental error of procedure which has occasioned a failure of justice by
its failure to explainthe basis of its award of compensation. lnterpretation of
relevant guidclincs, past practices, and considerations of elementary fairness
support Applicant's basic contention on this point.
41. The Respondent on page 58, paragraph 94, argues as follows:
"94. ln interprcting the two questions addressed to the Court, account
should be taken of the fact that neither the Statute of the Tribunal, nor its
Rules at the time that Article11 was formulated by the General Assembly,
provided for the submission of individual pleas or daims. As already
pointed out (see para. 38 above), that requircment was establishe<l by the
Tribunal only many years luter, so that neither the term 'jurisdiction' nor
'procedurc' in paragraph l of Article 11 of the Statute, nor the requirement
in paragraph 3 of Article IO that Judgements must state reasons, should be
read in the lightof the subsequent and subordinate rcquirement established
by the Tribunal as to the formulation of pleadings. lnstead, these concepts
should be understood in terms of the altcgations defining the Tribunal's
competencc under paragraph 1 of Article 2 of its Statute, and the remedies
itis entitled to grant pursuant to Article 9."
And on page 43, supra, paragraph 38, the Respondent further asserts (including
the damaging citation to Doc. No. 13 which supports Applicant's position):
"38. ln interpreting the above-mentioned provision of the Tribunal's
Statute, itshould be noted that that instrument nowhere requires or even
provides for the submission of individual daims. The requiremcnt to do so
was established by the Tribunal itse\f, in Scptember 1962, when it amended
' Doc. No. 34, p. 12. COMMENTS OF MR, FASLA 147
Article 7 of its Rules to require specific listing of individual pleas. Thus the
statutory requirement for reasoned judgements should not be read as
requiring specific reasons stated with respect to every claim or plea."
42. The Respondent argues that hecause the provision for the submission of
individual daims was added after the initial formulation of the Statutes of the
Tribunal and because itwas an amendment of the rules of the Tribunal, that
neither the term "judgement" nor "procedure" in Article 11 (1) of ÙleStatu te,
nor Article 10 (3) "... that judgements shall state the reasons on which they
are based" should be read in the light of the subsequent and subordinate re
quirement estab\ished by the Tribunal as to the formulation of pleadings.
43. Respondent's reasoning leads to the conclusion that whenever any sub
stantial changes in the provisions of a document occur, either by addition or
deletion, that the document shou\d be construed as if it had remained un
amended.
44. It seems more sensible to interpret the amendments of the rules of the
Tribunal so as to permit submissions of individual claims as being covered by
the original working of the Statute of the Tribunal that requires that judgements
state the reasons on which they are based. If this were not intended thcn pre
sumably the amendment would have so indicated.
45. The past behaviour of the Tribunal supports the Applicant's argument.
He would here like to cite examples where the judgements "state the reasons
on which they are based". The Applicant refers to Judgement 37 of August
1953, Judgement 77 of August 1959, Judgement 92 of November 1964; these
Judgcments were in favour of successful applicants. For the case wherc an
unsuccessful applicant was involved, and many pleas were included, the Ap
plicant, without going further, gives as evidence Judgement 102 Fort, of 10
October 1966.
46. Concerning the erroneous contentions of the Respondent, on the Trî
bunal's obligation to explain the basis on which it fixesthe amount of compensa
tion to be paid, here again the Applicant finds the contention of the Respondent
contrary to any principles of elementary law.
47. The Applicant wants to refer the Court to various judgements of the
Administrative Tribunal where this obligation has been acknowledged, e.g.,
Judgements Nos. 36, 37, and there are others as well.
Part III. Claim to Be Reimbursed for Costs Incurred in Proceedings
48. The App\icant has submitted an explanation of the basis of his claim to
the Committee on Applications for Review of Administrative Tribunal Judge
ments. This explanation is also set forth in paragraphs 84-95 of the Appli
cant's statement of views. Nevertheless, we would like to respond to the con
tention in paragraph 49 of Respondent's Written Statement to the effect that
"counsel was assigned" to Mr. Fasla in such a way as to provide al! necessary
assistance for gratis.
49. The Applicant has stated that he received the assistance of a member of
the Panel of Counsel. However, such a case as this necessarily incurs other
expenses. Contrary to paragraph 49 of the Respondent's rep\y, the Applicant
did not receive "gratis" ail of the necessary secretarial and other supporting
services which a case of this type necessitates. The Applicant provides the fol
lowing case in point. Frequent consultation between the Counsel and the
Applicant was necessary due 10 the complexity of the case. When it became too148 APPLICATION FOR REVIEW
costly for the Applicant to maintain temporary residence on the east coast as
well as a permanent residence on the west coast, the Applicant returned to his
permanent residence. The Applicant wishes to make it c\ear to the Court that
frequent consultation and correspondence was still required. The Applicant
cites two instances in which the Counsel contacted the Applicant by telephone.
Contrary to the Resident's argument vis-à-vis the Applicant's receiving gratis
such a service, the Applicant was informcd in a letter from his Counsel that
"I was under the impression that I had made these calls collect, and you will
pay for them at your end." (See attachment 5.) The Applicant also incurred
costs for typing and copying, services which the Respondent daims he was
entitled to gratis.
50. Contrary to the allegations of the Respondent, the Applicant's statement
of costs was "reasonable". The Respondent uses the example that the expenses
for "long-distance telephone calls ($680 claimed) are, . . . three times the
amount allocated for such calls to the . . . Office of Legal Affairs of the
United Nations for a year". The Applicant wishcs to point out that the Office
of Legal Affairs possesscs a telex which obviates the necessity of making long
distance telephone calls. The Applicant claimed hîs expenses were $680
when in fact they were over $700 as verified by the receipt of the telephone
company.
51. The Tribunal, itself, decided that it was in îts jurisdiction to award costs
where such costs "are demonstrated to have been unavoidable, reasonable in
amount and in excess of the normal expenses of litigation before the Tribunal".
The Applicant submits that his plea for reimbursement was, indeed, within the
jurisdiction of the Tribunal. Evidence to this fact accompanicd the Applicant's
plea.
52. The App!icant wishes to point out that it has been the standard practice
of the Tribunal to reimburse successful applicants for legal fees and other ex
penses incurred in presenting their cases to the Tribunal. The Tribunal's deci
sion, in the instant case, chat"Since the Applicant has assistance ofa member
of the Panel of Counsel, the Tribunal finds this request unfounded and rejects
it''is contrary to its prior judgements in similar cases (see Judgement 2,
Aubert et al.). Because of its decision in the Roy case (Judgement 123, Roy,
October 1968)the Applicant did not rcquest payment of costs for the assistance
of outside counsel for representation before the Tribunal, however, the Appli
cant did request reimbursement of expenses which were "unavoidable, reason
able in amount and in excess of normal litigation costs" due to the Iengthy
documents învolved, the necessity of long-distance communication and the
transportation costs of travel between New York and Ca!ifornia.
53. In the instant case, which was not extraordinary with respect to îts
request of the Tribunal, the Tribunal failed to exercise the very jurisdiction of
which it deemed itself capable of exercising. The Applicant, thercfore, conc\udes
that by not exercising the jurîsdiction vested in it, the Tribunal committed a
fondamental error in procedure which occasioned a failurc of justice.
54. The Respondent's reference to the Tribunal's rejection of ll/12ths of
the Applicant's daims would imply that the Applicant has no bases for sub
stantiating his claim bccause he was not a "successful applicant". If, as the
Respondent would have us believe, whether or not an applicant is "successful"
is determined by the number of daims which the Tribunal accepts, then the
very criteria by whîch the Respondent judges an applicant is, in the instant
case, in question. The Applicant, therefore, contends that whether or not an
applicant is "successful" is immaterial. The issue is, did the Tribunal exercise
the jurisdiction vested in it? COMMENTS OF MR. FASLA 149
Part IV. Claim Relating to Recalculation of Sa\ary and Allowances
for Service in Yemen
55. The Applicant has presented his basic contention in his previous sub
mission, paragraphs 107-1JOin support of pica (p) in its application to the
Administrative Tribunal, and in its carlier presentation to the JAB.
56. The Applicant wishes to rnake clear to the Court that the Admini
strative Tribunal, by rejecting his claim, reached a decision only on the basis
of the prior ruling of the JAB. The Applicant reiterates that he had questioned
theability of the JAB to pass judgement on his case because of its composition.
The JAB was cornposed of staff from the United Nations Secretariat, while the
Applicant was a member of the staff of the UNDP. He wishes to state that the
working conditions of the UNDP and Field staff are not similar to those of
the United Nations Secretariat. The Staff Rules that govern the regulations
are specially supplemented by directives. The staff from the Secretariat would
be ignorant of the directives applicable to the Applicant's case.
57. The United Nations has recently acknowledged this by appointing only
staff from the UNDP to the JAB which arc concerncd with questions about
UNDP ernployrnent conditions.
58. The Applicant challenges the Respondent's statement in paragraph 79
that:
"... the staternent in question was not meant to assert that the Secretary
General had an obligation to make such a recalculation, but rather that
he might do so, if circumstanŒs warranted, on an ex gratia basis ...
which is substantially the approach endorsed by both the JAB and the
Tribunal".
This implies that recalculation could be made only on an ex gratia basis. The
Applicant wishes to clarify the issue. The staternent refcrred to by the Respon
dent was made by the Representative of the Secretary-General to the JAB. He
was quite explicit when he said that the UNDP wou!d hal'e recalculated the
Applicant's salary and allowance if he had becn assigned to another post within
one year of his assignment tothe Yemen Post (doc. No. 3, Annex 67, para. 34).
(The App!icant repeats that the rules under which the UNDP operates are not
similar to those of other United Nations employees bccause they are supplc
mented by directives.) He maintains that the United Nations Secretary-General's
representative's statement constitutcs conclusive evidence as to the standard
practice of UNDP in such cases and that the Applicant is cntitled to be
treated in accordance with such standard practices. The United Nations Ad
ministrative Tribunal thercfore failed to exercise the jurisdiction vested in it
in not recognizing the standard practice of the UNDP. The JAB did find that
the Applicant had been reassigned to the UNDP in New York. Ncither the
JAB nor the Tribunal ordcred recalculation; instead they ordcred the Secretary
General to pay the Applicant a sum cqual to expenscs incurred by his precipitate
recall to New York.
59. The Applicant wishes to make clear that there is no comparison between
the Applicant's assignrnent in Sierra Leone which lastcd under one year and
his assignment in Yemen. Or else the Applicant would have requested recal
culation of his salary for the tirne spcnt in Freetown. In the first place, the Ap
plicant was rcceiving his salary at the New York post adjustmcnt, second, he
was without dependants in Sierra Leone, and was awarded under one of the
discretional powers that the Administrator of the UNDP and the Resident
Representative have, per diem allowances for a period of 40 days (the standard150 APPLICATION FOR REVIEW
United Nations practice is to provide a flat basis of 15 days per diem), while he
was receiving his subsistence a\lowance. Proof of this disposition of Appli
cant's earlier transfer is avaîlable in the Office of the Controller of the United
Nations. This experience of reassignment is in no way comparable to the con
ditions bearing on the claim for recalculation arisingout of recall from Yemen.
The Applicant also calls attention to the Hagen report on adversity affecting
living conditions in Yemen. (See Attachment 6.)
60. We refer the Court here, too, to Mr. Fasla's Persona! Annex which
supplements the presentation in Applicant's Response. As with earlier con
tentions, it seems clear that Applicant was entitled to a reasoned explanation
of why he was not entitled to a recalculation of salary and allowances,
especially given the spedal framework of personnel practices applicable to
UNDP operations in view of their special character. Here again a failure by
the Tribunal to exercise the jurisdiction vested in it constituted a serious error
that resulted in a hardship to the Applicant.
61. The Applicant wishes in particular to draw the attention of the Inter
national Court to the foltowing. Concerning the circumstances surrounding
the Applicant's consultation at New York on 20 and 21 May 1969, and his
subsequent placement on specîal leave, see the Respondent's reply, paragraph
11, document 3, Annex No. 87. The Applicant also wishes in this connection
to draw the attention of the Court to his application of 31 December 1970 to
the United Nations Administrative Tribunal and especially paragraphs 94
and 95 (doc. 3, Annex 85). For the JAB's finding that in May 1969 the Appli
cant had been assigned to the UNDP in New York, see Annex 67, document 3,
paragraph 33, a finding subscquently accepted by the Respondent that the
App\icant had been appointed to New York.
62. The Applicant specifically rejects as unfounded the Respondent's con
tention that the reduction of the period of the Applicant's assignment in Yemen
of one year to Jess than one year gave rise to no obligation to readjust the
allowance that had been paid to him. The Applicant would like also to refer
to Staff Rule 103.22 (c) which provides:
" (c) When the staff member is assigned to a duty station for less than one
year, the assignment allowance will normally not be paid. However,
appropriate subsistcnce payments will be made where no assign
ment allowance is payable." (Doc. 5.)
With regard to which the Tribunal in paragraph XV (doc. No. 1,Annex No. 11)
stated:
"The Tribunal observes that this text leaves the Respondent a margin
of discretion with respect to the payment of an assignment allowance; it
is possible for the allowance to be paid for a stay of Jessthan one year. In
addition, the text lays down a very strict rule: the subsistence a\lowance is
payable only where an assignment allowance has not been paid. ln the
present case, however, the Applicant received an assignment allowance
and is therefore not entitled, under the Staff Rules, to a subsistence al\ow
ance."
63. For the rest, the Respondent has in his written statement before this Court
resortcd to abstract legal arguments based on rules applicable to United Nations
Secretariat staff. These ru\es fait to take into account that the administrative
practices of the UND P (which has a special character and whose personnel have
often had to operate under conditions of hardship) have been established by COMMENfS OF MR. FASLA 151
various directives and by the discretionary power extended to the Admini
strator of the UNDP as defined in the CM. Field Manual.
Part V. Claim that the Court Has Authority to Award Costs
64. In paragraphs 86-90 of the Secretary-General's Written Statement an
argument is advanced against the authority of the Court to award 'costs to a
litigant in a proceeding of this sort. Applicant contends that the Court has not
yet resolved this issue and that the Respondent's basic line of contention is
impersuasive.
65. The merit of awarding costs is very strong in acase of this sort. A litigant
in the situation of the Applicant is dependent upon independently selected
counsel and ample preparation in a case of this sort where the integrity and
fairness of the United Nations and its highest administrative officers might be
called into question. Often such an individual is so crushed by his gricvance,
as in this instance,that he can barely afford to maintain himselfat a subsistence
level, much less incur the financial liabilities of litigation of this complex
character. At a minimum, then, the Court should have normal discretion, at
least,to award costs in this litigation. Indeed, a strong equity and institutional
argument could be made in support of providing a party with automatic
reimbursement, up to some reasonable level, in any instance where the Commit
tee on Applications for Review of Administrative Tribunal Judgements was
sufficiently impressed by the contentions of the Applicant to recommend
review in an advisory opinion of the International Court of Justice.
66. Surely if such a recommendation is made it is important that opposing
positions be competently and equiva\ently developed. Under present circum
stances this is impossible as App!icant lacked funds for a competent presenta
tion of his views and, furthermore, was unable to put either the time or re
sources to work that were routinely available to the Secretary-General. A
minimum rectification of this imbalance would require, it is respectfully main
tained, at least an award of costs actually incurred by the Applicant. lt would
also require, as part of an effort to overcome this irnbalance in technical
presentation, an opportunity to make an oral statement. The General Assembly
recommendation in resolution 957 (X) is entitled to consideration, but it is not
binding on the Court which has an independent right and duty to establish its
own procedural framework appropriate for the just disposition of questions
before it. In this instance, Applicant contends no such just disposition is
possible without an oral statement.
67. ln sum, the Court must make a determination on the issue of costs and
an oral statement that corresponds to the requirements of justice, takes full
account of the fact that no comparable questions for review have ever been
presented, and gives some attention to the importance of achieving competent
and balanced presentation of contending Jegal positions on a case that arises
within the structure of the United Nations as a grievance between an employee
and his bureaucratie superiors.
Part VI. The lmpingement of Prejudice on the Proceooings of the Tribunal
68. The Applicant contends that the procedural errors committed by the
Tribunal did, in fact, "prejudice, in a fondamental way, the requirements of a
just procedure".152 APPLICATION FOR REVIEW
69. The Applicant cites the instance in which he requested the production of
the report by Mr. Hagen, consultant to the UNDP Administrator, on his in
vestigation of the UNDP office in Yemen in March 1969. The UNDP denied
this letter's existence for several months. Yet, after the Applicant requested
this letter's production for a second time, the UNDP complied with his request.
However, acceding to the request of the UNDP, the Tribunal decided that "ail
except one paragraph were irrelevant to the case", and, therefore, could be
withheld from the Applicant. The Applicant had rcquested production of the
entire letter bccause he felitwas crucial to the understanding of his case. There
fore when the Tribunal failed to insist upon production of the letter in total, it
failed to exercise its jurisdiction. The result of this errer in procedure was to
withhold evidence supportive of the Applicant's case.
70. The Applicant cites another case that is quite similar to the above one.
The Applicant had requestcd that the Respondent produce the report by Mr.
Hagen, UNDP Special Representative in Ycmcn, concerning the Applicant's
performance, which was prepared at the rcquest of the UNDP in the summer
of 1969. The Tribunal possessed a document which made refcrence to this letter,
a copy of which was supposed to be in the Applicant's Status File. The UNDP
maintained that it did not have this letter in its files. Despite evidence that
raised a "presumption of the lettcr's existence" the Tribunal observed that it
"can only take note of the statement" that the letter in question did existas the
Applicant had requestcd but could not be produced. The Applicant strongly
believed that production of this letter would have further enlightened the Tri~
bunal as to the Applicant's situation. The Tribunal did not make inquiries
subsequent to this occurrence, whcn it could have insisted upon this letter's
production.
71. If part of the Applicant's contention is that he is enmeshed in a com
plicated web of undertakings designcd to prevent the extraordinary derelictions
present in the UNDP operation in Yemen from coming to light, then it becomes
clear that it is inappropriate to rely on the good faith of UNDP Headquarters
as to production of documents bcaring on Applicant's case. How else can the
Applicant, with no independent access to evidcnce, possiblyestablish thevalidity
of his basic contentions? American judicial practice consistently protects
litigants in thissort of situation, giving institutions of government the choice
bctween producing the documents needed or conccding the daims set forth.
Herc, the Tribunal displayed custornary defercnce to UNDP despite the very
substantial indications of prejudice against Applicant and despite their strong
institutional intcrest in suppressing the real facts. Applicant regards the Tri~
bunal's treatmcnt of potential evidence inthe case as "a fundarnental crror in
procedurc which has occasioned a failure of justice-".
72. The Applicant wishes to state that the tcrm "just" implies unbiased or
not prejudiced. Therefore, the Applicant feels that the above examples clearly
show that, by not exercising itsjurisdiction and thereby causing a fundamentaJ
procedural crror, the Tribunal allowed prejudice or bias to enter into the case.
By not making further inquiries into the existence and production of evidence
possibly supportive of the Applicant's case the Tribunal, intcntionally or un~
intentionally, aided the Respondent's case.
Part VII. Conclusions
73. The Applicant is a civil servant who feels that he has been victimized as a
result of prejudice. There are many independent grounds on which ro suppose COMMENTS OF MR. fASLA 153
that such prejudice existed and was a significant factor in ending his career as a
United Nations civil servant. lt is indisputable that the abrupt termination of
Applicant's career has brought him great grief and has made it very difficult
for him to find gainful, appropriate employment outside the United Nations.
74. ln the course of reviewing the Applicant's grievances he never really had
the resources to present his case adequately. Such handicaps, as we have al
ready stated, have greatly hampered the presentation of Applicant's position
to the Court. Despite the handicaps, however, a substantial part of Applicant's
argument has been accepted by the reviewing agency at each of the threc stages
in this proceeding. Such success is particularly notable in light of the failure by
the JAB or Administrative Tribunal to look into the prima facie connection
between corrupt operations in the Yemen office of UNDP, Applicant's assign
ment to end corruption, and Applicant's subsequent career difficulties.
75. We believe, in this sense, that the various errors by the Administrative
Tribunal that were the occasion of failures to exercise jurisdiction and of seri
ous procedural error were ail compounded by this underlying refusai of the
Administrative Tribunal to assess the wider facts of prejudice which underlay
the separate wrongs done to the Applicant. ln this context, the failure to pre
pare properly Applicant's report or fact sheet, the refusai to compensate ap
propriately, the unwillingness to find Applicant another job seem to form a
pattern of abuse consistent with the undcrlying claim of prejudice and wilful
dereliction. As such, it renders more scrious each failure and both makes com
prehensible why the Administrative Tribunal granted such inadequate relief
and shows why this inadequate relief flowcd from this basic failure to exercise
jurisdiction vested in it.
76. Also, it is worth noting in closing that the Secretary-General has abused
his discre\ion to the extent that its responses to earlier findings comp\etely
ignored the underlying circumstances. Nowhere in his Written Statement does
the Respondent take issue with the Applicant's daims about the facts or
equities at stake.
77. lt may be apt to quote from Dag Hammarskjold's Congrcgation Lecture
(The lnternational Civil Serra/Il in Law ami in Fact, Oxford Press, 1961) in
which he places great stress on the special and critical imperatives of conscience
and integrity that must guide the work and judgments of the international civil
service. In particularly suitable language, although intended to bear on the
problem of nationalistic influences, Mr. Hammarskjôld urges that a civil servant
be-
..... guided solely by the common aims and rules laid down for, and by the
Organization and by recognized legal principles, then he has done his
duty ... the final test is a question of integrity, and if integrity in the sense
of respect for truth were to drive into positions of confüct with this or that
interest... then it ïs in line, not in conftict with his duties as an interna
tional civil servant" (p. 27).
The Applicant's ordeal, in a scnse, boils down to suffering adverse persona! and
professional consequences from daring to put his scnse of integrity into con
flict with various bureaucratie interests within the United Nations. The pres
sures generated by thcse intercsts, togethcr with the weakness of an insolvent
litigant, have resulted in a failure to ferret out the underlying facts that make
the various specific contentions fall into place. Unless that primary jurisdic
tional precondition is fulfilledjustice cannot be donc in this case.
78. And if justice is not done, then its failure will be seen by others in the
international civil service.The message will be clcar enough. The message will154 APPLICATION FOR REVJEW
be to go along with corrupt operatîons or else a personal disaster might ensue.
In this case the message will be underscored by the fact that Applicant was
assigned with a specific mission to correct the abuses. The gravity of these
abuses was sufficient to generate a letter from the President of the Republic of
Yemen. To shut the door on this Applicant's search for adequate review of his
case would culminate in a persona! tragedy with a great blow at the institutional
character of the United Nations.
Response submitted on behaff of
Mr. Mohamed Fasla
(Signed) Richard A. FALK,
Albert G. Milbank Professor
of International Law and Practice,
Princeton University
Date: 30 January 1973. COMMENTS OF MR. FASLA 155
LIST OF ATTACHMENTS TO THE COMMENTS 1
EXPRESSING THE VIEWS OF MR. MOHAMED FASLA
1. Letter from Mr. Sloan to Mr. Fasla, 23January 1973
Letter from H.E. Mr. Barakat to Mr. Hoffman, 26April 1969
2. Letter from Mr. Hoffman to H.E. Mr. Barakat, 28May 1969
3. Letter fromH.E. Mr. Al-Eryani to U Thant, 2 May 1969
4. Letter from U Thant to H.E. Mr. AI-Eryani, 14 May 1969
5. Letter from Mr. Vatters to Mr. Fasla, 23 September 1970
Letter from the Pacifie Telephone and Telegraph Company to Mr. Fasla,
8 November 1972
6. Note by Mr. Hagen on living conditions in the Yemen Arab Republic,
23 March 1969
1 Attachmentsnot reproduŒd. {Note by rhe Registry.J156
Personal Annex of Mr. Mohamed Fasla
[Note: The comments on some basic issues in this case of Mr. Fasla, in his
language, are included here as bearing on wider aspects of this appeal. Mr.
Fasla's comments are offered here as part of a wider response to the Written
Statement of the Secretary-General.]
ANNEXA TO PART II
The Respondent has submitted to the Court only Administrative Instruction
ST/Al/115, Periodic Report, but has deliberately failed to mention that this
Administrative Instruction is supplemented by Personnel Directive No. 8/60, of
2 September 1960. The directions appearing in UNDP Field Manual of 15
December 1966 (Annex, Attachment No. l) contain two even more authorita
tive instructions concerning the timing of periodic reports and the responsibility
of the Administration to ensure the completion of such reports within the
timing prescribed by Administrative Instruction ST/AI/115 of 11April 1956.
In Personnel Directive 8/60, Document No. 17, which has already been
transmitted lOthe Court in another context, paragraph 7 states:
"Admùlistrative Responsibilifies of Personnel 0./ficers:
lt will be the responsibility of the Personnel Officer concemed to ensure
that a periodic report is completed on the staff member up to the date of
transfer and, if required, sent to the Administrative Officer at the new duty
station. Itwill not be necessary to complete a periodic report at the lime of
the staff member's transfer if one has been completed wirhinfour months
prior to his departure." (Emphasis added.)
Under subtitle 8, it continues:
"Administrarfre Responsibilities of the Executive Officers:
He will also be responsible to ensure that the staff member has com
plctcd any periodic reports which may be due on the staff under his super
vision."
By employing the Applicant the Administration obtained the rights to his
services, wîthin the high standards out!ined in the Charter and in the Staff
Rules and Regul~ions. At the same time, the Applicant was entitled to working
conditions under which he could put his capabilities to full use. He was also
entitled to fair and complete evaluation of his performance by the Administra
tion at regular intcrvals and in accordance with the rules and Administrative
Instructions of the United Nations and United Nations Developrnent Pro
gramme. The Court is aware that the entitlernent of a staff member to periodic
reports is established in the Staff Rules and forms part of the employment con
tract. The Applicant had the right to expect that the Administration would
fulfil its obligations towardshim in good faith and without malice, prejudice or
discrimination.
As indicated in his statement to the Tribunal, the Applicant feels that his
knowledge of the situation in Syria was used against him. The applicant is
willing to challenge the Respondent publicly or privately about what he
witnessed in Syria. He suspects now more lhan before that his evaluation report
was used to intimidate him and restrain him from revealing the shameful COMMENTS Of MR. FASLA 157
situation in Syria which the UNDP Administration was only too well aware of.
The Applicant at this stage has nothing to add, but would like to refer to
the rebuttal he submitted inaccordance with Administrative Instructions, para
graph 13:
"If the applicant sa desires, he rnay rnake a written statement in explana
tionor rebuttal of part or ail of any report, which statement shall bejoined
to the report to which it refers. Where a staff member makes such a state
ment, the Head of the Departrnent will investigate the case and will record
his appraisal of it in writing. This record will be fi!ed together with the
report and the staff rnernber's statement."
Considering the situation he encountered in Syria and the circumstances under
which he had to fulfil his obligations, the Applicant has received a surprisingly
good report. lt contains middle-ratings in 9 out of 13categories, below-average
ratings in 3 categories, and above-average in one category. It is the kind of re
port where the rniddle-rating from the second reporting officer is fully justified,
in accordance with the practice of the United Nations, in view of the fact that
the Applicant considers himself part of the people of the area and as such
especially concerned about the local mission of the United Nations; because of
this affiliation, more was expected from him as well. Furthcrmore, the Resident
Representative had, besides his appointment at D2 level, other prcvailing
interests. TheUNDP should have taken ail this into consideration, as well as
making allowances for the extremely difficult situation in the UNDP Office.
lt should be noted that the Resident Representative who was Ambassador, and
was imposed on the United Nations by his own country for this assignment, was
shortly aflerwards terminated. The same Resident Representative was actually
under watch by the Resident Representative of a neighbourhood country. The
Applicant himself was twice requested to proceed to Beirut, without the
knowledge of the Resident Representative, to brief secretly Sir David Owen,
who was aware of the situation of UNDP in Syria.
Despite this situation, the second officer at the Headquarters, whom the
Tribunal has found guilty of preju<liceagainst the Applicant, rated the applicant
below average. As already stated, the Applicant had never met him before,
since he had assumed his position at the Headquarters only one month before he
signed the Applicant's report.
When the Applicant signed this report, in accordance with paragraph 13 of
Administrative Instruction ST/Al/ll 5, he added a written reservation to the
effect that he did not consider this an objective assessment of his work. Despite
the Administrative Instruction cited earlier no investigation was ever under
taken in the case of the Applicant. No reference to the Applicant's rebuttal was
placed in the official statusile of the Applicant. Only during the proceedings of
the JAB on 11 May 1970, five years later, did the Respondent produce for the
JAB a letter from the Resident Representative which reversed the bad impres
sion created by the first letter. The Respondcnt stated that the rebuttal of the
Applicant was in fact investigated. In accordance with the Instruction cited
earlier a rebuttal is to be investigated by the head of the department who "will
record his appraisal of it in writing. This record will be filed together with the
report and the staff member's statement."
ln the present instance, the appropriate UNDP officer in New York made no
investigation and recorded no appraisal of the case. No mention of this rebuttal
appeared in the Fact Sheet of April 1970.ln fact noteven the Resident Represen
tative comments on the Applicant's rebuttal which the Respondent erroneously
presents as fulfilling the requirementof investigation and appraisal by the head158 APPLICATION FOR REVIEW
of the department. Their comments were filed with the periodîc reports, and
included the statement:
"I am glad to say that Mr. Fasla's performance has definitely improved
over the past few months. He has shown increasing interest in his work. He
takes his responsibilities seriously. With the departure of Mr. Furst with
whom he found il difficult to co-operate Mr. Fasla bas a!so calmed down
and has shown greater contro\ over his disposition. He still has his limita
tions,ofcourse, and Iwould think that research or information work would
suit his temperament better than Programme Officer, although he surely
has today a much greater grasp of technical assistance programming
problems than six months ago." (Doc. 3, Annex 10.)
The action of the Respondent in withholding this favourable comment from
the Applicant's file, in addition to being irregular, under the Respondent's own
argument, is aggravated by the subsequent failure of the Respondent to request
a second periodic report at the end of 1965,when the Applicant left Syria, and
the Resident Representative's employment was terminated.
The Applicant is glad that the Respondent, in paragraph (b), page 62, supra,
claims that: "No final appraisal was made by the department head and no in
vestigation was initiated." This contradicts what the Respondent maintained in
the proceedings of the JAB, and in his statements to the United Nations
Administrative Tribunal, that the Applicant's rebuttal was investigated. (See
Annex 87, para. 3.)
July to December 1965: Damascus
As of today, the Respondent Still has not provided the Applicant with a
performance report of his work for the period under consideration. The Re
spondent has violated paragraph 7 of the relevant Administrative Instruction,
paragraphs ( c) and ( d) of the instrument governing field office staff, and the
following provision of this instrument which states that:
''ltis the duty of supervisors to be sure that periodic reports are pre
pared by them, as indicated in Paragraph 13 (c) and ( d) above, either
when the superviser himself is transferred, when he must report on ail the
staff members who have served under his supervision for six months or
more, or when the staff member is transferred after six months or more of
the service under the same supervisor, provided in both cases that at least
six months have elapsed since the previous report."
In addition he has violated paragraphs 7 and 8 of Personnel Directive No. 8/60
(Annex 17).
It is evident from the previously quoted comments of the Resident Represen
tative that such a second report would have been considerably more favourable
to the Applicant than the previous one. There is the periodic report covering the
period from 1 July to December 1965, and the Respondent's heavy reliance on
his own argument is entirely rnisplaced and prejudicial.
Lebanon
ln the case of Lebanon, violation exists of ail of Staff Rules 112.6, Adminis
trative Instruction ST/Al/115, Personnel Directive No. 860, paragraphs 7and 8,
and ail provisions in the UNDP Staff Field Manual governing the periodic
reports. COMMENTS OF MR, FASLA 159
Even ifwe onlyconsidered theoutdated Administrative Instruction ST/Al/115
which, under paragraph (a), applies to transfer or assignment when "such
serviceexceeds, or is expected to exceeda period of six months", it isclear that
the six-month limit covers the next and not just the current assignment as, for
example, when the Applicant departed from Lebanon for New York, there was
no doubt that bis servicesin New York would be for longer than sixmonths.
The Respondent violated not only ST/Al/115, but also ail other directives,
including the UNDP requirement that a Resident Representative before
leaving his post must report on each staff member. In fact, the Resident Re
presentative did make out a special report on the Applicant, but this report has
been withheld intentionally from the status file,as found by the JAB.(Doc. No.
3,Annex2.)
In a letter dated 8 April 1966(Doc. No. 3, Annex 11)the Resident Represen
tative states:
"For me he was a godsend, because Faslaarrived at a time whenI was in
full activity negotiating the EPTA Programme, and I really had my doubts
as to whether this officewas equipped to do the job properly. The Project
Sheets were not in order and to carry out negotiations and discussions
with every singleDepartment in the Ministries on the EPTA Programme in
a country where there is no powerful, efficient co-ordinating body, is in
deed a strenuous affair. I immediately put Fasla into the job and he ac
companied me to ail the meetings and finally almost single-handed, be
prepared the EPTA Programme. lt is truc that he needs supervision from
time to time, but he is hard working and would be able to do a good job if
beis properly orientated."
lt was only at the request of the JAB in June 1970 that UNDP provided a
report which summarizes the Applicant's services as showing a good standard
of efficiency.Asstated by the Respondent himself(para. A3on p.62,supra, of the
Respondent's statement), this report had not been circulated with the original
Fact Sheet either inside the UNDP or outside it.
The Applicant would like to state that be achieved in Lebanon the prepara
tion of the Programme of Technical Assistance, which normally requires a
larger team and one year of negotiation and preparation. Although the post in
Lebanon was fully staffedwith threc officersof higher status than the Applicant,
assigned specificallyfor such work, the work required could not be done as the
Resident Representative specified in the letter pre-cited. In omitting to request
at that time a performance report of the work of the Applicant in Lebanon the
Respondent bas demonstrated once more not only bis violation of rules, but
also his discriminatory attitude. Thisisevident if one takes into account that in
both instances (both in Syriaand Lcbanon} the same person who bas beenfound
guilty of prejudice against the Applicant, Mr. Vaidyanathan, had sent two
confidential cables to the new Rcsident Representative biasing him against
Mr. Fasla, even before the latter's arrivai. ln fact, Mr. Vaidyanathan (Annex
74) had already written in November 1965that be "was not planning to renew
the contract of the Applicant".
November 1966 to November 1967
The Applicant would like to direct the attention of the Court to the irregu
larities committed by the Respondent during the period under consideration,
not only by the violation of paragraph 5 of ST/Al/115 and paragraph 13, but
also by the violation of the principlcs of the United Nations.160 APPLICATION FOR REVIEW
The Applicant, before going any further on the subject, would like to state
again that the officer who filled out the first section for the evaluation report
was not his immediate supervisor. Although his title was Deputy Director of
Technical Assistance, from May to December 1967 he was on special assign
ment wrlling a document for the Govemment Council on Rules for Technical
Assistance that was necessitated by the consolidation of the merging of the
former TAB and the Special Fund into UNDP. The Applicant states that
evidence of the assignment of this officerto this special task is consigned in the
filesof the organization.
Contrary to the rules, the Applicant never worked for the senior officerwho
filled out the Applicant's evaluation, sections I and 2. The Applicant states that
his next supervisor in line was intentionally bypassed for discriminatory
reasons. Contrary to the Respondent's insistence that he was not available at
the time, he was present. If the Respondent persists in this claim, it can be
refuted by evidence obtained from the United Nations, since absence from
UNDP even for one day or for travel is recorderoutinely.ln fact thebypassing
of the Director of Technical Assistance had at the time serious consequences in
view of the fact that the Director of Technical Assistance was not on speaking
terms with the Director of the Bureau of Administration and Management on
the basis of arrogance and discrimination toward people from TAB, who were
transferred to the Bureau and were mainly from the developing countries.
Many of these people were terminated through the use of the performance
report whereas other staff, as the Applicant has witnessed and can state under
oath, were themselves fillingout their performance reports.
The Applicant states that these irregularities have been reported by his
Director and direct supervisor, Yuri Filippov, to David Owen, to Mr. Kraczkie
vitch and 10 a member of the Algerian mission.
Before going further, the Applicant states that the Respondent does not
consider the Applicant's rebuttal as constituting a formai rebuttal. The Appli
cant would like to known if the Respondent has another definitîon for a rebut
tal. The Respondent who violated the Applicant's rights was aware that no
officialform for a rebuttal exists and is using semantics to justify his illegaland
discriminatory action.
The Applicant. in order to enable the Court to assess the situation in the
period being considered, would like to state that this report covers only the
period from January to November I967,since in November and December 1967
the Applicant was working in the Bureau of Evaluation of the Report, under
another jurisdiction, and !hen was transferred to the Bureau of Operation and
Programming only in January 1967, together with ail the staff of the former
TAB.
From January 1967to November 1967,the Bureau, due to administrative in
efficiency which the Respondent himself has recognized, was reorganized not
Jess than three times. The Bureau was under severe criticism, not only from
UNDP in the United Nations, but also from the Government Council of UNDP,
a representative of a member State, and the media.
The same conclusion bas been reached by Sir Robert Jackson in bis authori
tative study on the capacity of the UNDP system:
"Today the UN system seems to be disproportionally old in a demo
cratic organization. Many Governments, steeped in much longer tradition,
are far more progressive and ready to respond to modem conditions. One
reason advanced for this is the Jack of enlightenment of Personnel Policy.
Another, is the uneven quality of staff management demanded by such a COMMENTS OF MR. FASLA 161
complex group of Organizations ... Virtua\ly, ail of the outstanding people
involved in the present UN development operation are now subject to
stress ... Many of them admit that they are unable to give their best under
present conditions." (UN doc. DP/5, Vol. 1, paras. 144 and 146.)
ln January 1967, when the Applicant was transferred with his division, the
Bureau of Technical Assistance was in charge of UNDP Regional European
Projects as well as of UNDP projects in Albania, Bulgaria, Cyprus, Greece,
Hungary, lceland, Malta, Poland, Portugal, Romania, Spain, Turkey and
Yugosla via.
Within a month-and-a-half, without any exp\anation, without consultation
with the Applicant's director, the Bureau of Operational Programming decided
to shift some of the responsibilily for these projects to a staff member from the
former Special Fund and to rcduce the responsibility of the Applicant by cutting
down his assignment for UNDP projects to seven African countries: Comoro
Islands, Dahomey, Ivory Coast, Madagascar, Mauritius, French Somaliland
and Togo.
This limitation of responsibility applied not just to the Applicant, but to all
staff who were transferred from TAB and brought to the Organization by Sir
David Owen. This period was one of the most critical in the history of UNDP.
The case of this unjustified assignment has been discussed at high levels. lt
is in this period that the Director of TAB wrote a letter of protest against
discrimination to various senior officersf UNDP (see Annex 15).
"When Mr. Fasla was working under my direction he was assigned as
area officer for the following countries: Albania, Bu\garia, Cyprus,
Greece, Hungary, Iceland, Malta, Poland, Portugal, Romania, Spain,
Turkey and Yugoslavia and for regional Europe.
Mr. fasla is conscienlious and hard working and l was very satisfied
with his work. On EPTA Programming and some evaluation for the Special
Fund sector I was also pleased to note the great interest he took in col
lectingand studying available national economic plans and other back
ground documents, which assisted him in performing his work with intel
ligence. He built up necessary records which were virtually not existent
before for these countries and developed contacts with delegations which
had avoided contact with his predecessors.
Following the transfer of the area division to the Bureau of Operation
and Programming, transfer of staff from other divisions, a number of new
appointments were made to the area division. I was neither consulted on
this, nor on the subsequent reassignment of duty within the area division.
But note that Mr. Fasla has been given the following countries, Comoro
Islands, Dahomey, Ivory Coast, Madagascar, Mauritius, French Somali
land and Togo. This is the size and the type of responsibility normally
given to a junior or new area officer. I am very concerned at seeing this
substantialeut in his work and his responsibility ...
The present secretary arrangement [the Applicant's was reassigned]
made without due consideration of his wishes is unsatisfactory. ln addition
his new officeis much worse than that of more junior and younger mcmbers
of the division. The latter two points arc pcrhaps not much in themselves.
The eut in responsibilities is. Added together they give me the impression
that Mr. Fasla has not bccn given a fair chance or treatment and that
premature decision against him has bccn made. 1 strongly oppose the
situation and wish to record my objections on file.
Mr. Fasla was brought to New York from the field in order that he162 APPLICATION FOR REVIEW
could demonstrate his capability at the Headquarters. As chief of his
division l received no complaints against Mr. Fas!a and I had absolutely
no cause for dissatisfaction in his work. As mentioned already, r was not
consulted in his reassignment and I am surprised by the later development.
As I hope that 1hereis a personnel policy in UNDP for all staffto be treated
fairlyand equally, lshould wekome your full co-operation in ensuring fair
treatment of this staff member. I shall also be discussing with Mr. Cohen
ways of improving this present situation." (Doc. No. 3, Annex 15.)
Similar objections by the Chief of Division have been made on behalf of
other staff from developing countries, who have been terminated illegally
probably because theîr natîonality was not acceptable to the Bureau.
Numerous reorganizations occurred in this new assignment. A chief of
section was replaced following criticism that the appointment of the chief of
section was fixed only because the nationality of this chief of section was the
same as that of the Director of Bureau. This situation had dispersed al! the
staff of the African Branch that could not bear the situation.
Another reorganization occurred so that the Applicant had fu]l responsibility
for UNDP projects in the French-speaking African countries and was reporting
directly without intermediary to the Director of Division who was bypassed for
the preparation of the evaluation report.
Following a new reorganization, the Applicant's function at UNDP was
extended to cover UNDP Technical Assistance operations in 26 African
countries, in addition to East African communities and interregional projects.
This was the [argest assignment given to any officer in UNDP Division of
Technical Assistance operations. The Applicant would like to emphasize that
prior to his reassignment in February, four staff members and one chief of
section were incharge of these counrries for which he alone now had responsi
bility.
The Applicant would like to state that the action taken against him by the
use of performance reports was rooted in the disagreement between senior
officers over the treatment of staff from devcloping countries. During the period
under consideration, a considerable political tension in the Bureau of Operation
and Planning arose stemming from strongly held persona! views on the part of a
number of UNDP officiais with regard to East-West ideological conflicts.
This tension was greatly intensified as a resultof the 1967 conflict in the Middle
East. The Applicant who was the only Algerian professional in UNDP, though
he carefully refrained from expressing any political views ofhisown, was placed
in a very difficult position through no fault of his own. The Applicant would
like to state here that from January to September he did not deal often enough
with the senior officer who filledout the first section of the evaluatlon report,
nor the senior officer who signed sections 2 and 3 of the performance report.
The Applicant states in addition that only two weeks before the preparation
of this report he had difficulties which he would Iike to report in order to assist
the Court in evaluating the situation. Under the terms of reference of the Ap
plicant, it was his responsibility to recommend or to turn down on the basis of
economic considerations any requests for projects to be financed through a
special fund for emergencies.
ln November the Applicant had been requested by Mr. Paul Marc Henri to
recommend financing from the contingency fund a post of senior economist in
Madagascar.
After examination, he found that the appointment of this senior officer would
be highly irregular since under the terms ofreference and regulations prevailing, COMMENTS OF MR. FASLA 163
the financing ofthis project from the contingency fund would be detrimental to
the principle on which the TAB of the United Nations has been created. In fact
the request by Mr. Henri was motivated by the following situation: the daughter
ofa member of the Government of Madagascar was married without the consent
of her family to a German traveller in Madagascar. In order to save the position
of the father threatened by this mixed rnarriage, and to give social status to the
groom in Madagascar, the member of the Government, who was on friendly
terms with Mr. Henri, requested him to create in his office the job of senior
economist of the United Nations, for his son-in-law.
In refusing ta recommend financing from the revolving fund, the Applicant
was guided also by the decision of his director who agrecd with him that
UNDP finances should not be utilized for such things since Madagascar was
provided already with a programme based on real need.
This refusai created in November 1967 (on\y several weeks before the evalua
tion of the Applicant) a disturbance in the Department to the extent that the
Applicant's director aise recorded bis objections when it was learned that the
project had ultimately been financed by other means from UNDP funds.
January to March /968: UN!TAR
The Applicant states again that the Res pondent violated the provisions of the
Administrative Instruction by not providing a performance report, since
UNDP was aware of the progress of the Applicant's work each week. However,
as in Syria in 1965 and in Lebanon in 1966, UNDP failed once more in its
responsibilityto request an evaluation of the Applicant's work.
A periodic report with regard to the Applicant's service with UNITAR was
eventually sent to him in 1970 after a delay oftwo and a half years, pursuant to
the recommendation of the JAB. The report con tains the following:
"As far as I had been able to observe and evaluate the work of Mr. Fasla,
1 have the impression that. he was willing to carry through the work
assigned to him and submit the material gathered for comments of an
eventual use by the superviser who was preparing the research study. His
relations with the few colleagues with whom he came in contact during his
limited period of stay in UNIT AR were pleasant and cordial. By the very
nature of his assignment be had to spend rnost of his time in the library
searching for documentation. I may also state that the information col
lected by him was found useful." (See Annex 22.)
December 1967 toJune 1968: UNDP UNJTAR, New York
The Applicant states that in accordance with the procedure in the United
Nations and UNDP, the omission of the evaluation performance report on the
fourth anniversary of his original appointment is the rnost important, since at
that point, in accordance with the practice and rules, the Applicant should
have been granted a permanent con tract, or if his services were unsatisfactory,
should have been terminated. The Respondent intentionally did not make such
a performance report for his fourth anniversary.
June /968 to May 1969
The Applicant refers the Court to the decision of the United Nations Ad
ministrative Tribunal that his performance report for this period was rnotivated
by prejudice and should be declared invalid.164 APPLICATION FOR REVIEW
The Applicant states that before writing the periodic report, the Respondent
triedto harm the Applicant in Sierra Leone, by producing a document signed
by an officer with whom the Applicant never worked. In fact, it is only thanks
to the integrity of a senior officer from the United Nations Headquarters who
provided the Applicant with a handwritten Jetter favourable to the Applicant,
that evidence was given in faveur of the Applicant. The respondent kept silent
on this issue. The Applicant respectfully requests the Court to refer to para
graphs 20, 21, 22, 25, 26,27, 28, 29, 30, 31 and 32 of his statement to the
Tribunal, Annex 88, for evidence of the extent to which the Applicant was
discriminated agains1.
The Applicant is still waiting for.an honest performance report on his assign
ment in Taiz, from September 1968 to May 1969. The Applicant directed the
Tribunal to ail cvidence presented about his situation in Yemen, his work,
testirnony by Mr. Hagen in his letterto Mr. Cohen, which the Tribunal declared
irrelevant.It is the hope of the Applicant that this Court will request the produc
tion of the whole of this letter, since the Applicant considers that without it the
Court will be unable to understand the situation in Yemen.
Also the Applicant is providing to the Court additional evidence that was not
used by the Tribunal. A favourable report on his performance was sent to
New York by Mr.Hagen. Instead of rcquesting it, the Tribunal only noted that
no record of this report existed. The Applicant is sending correspondence
between the Chief of the Registry and Mr. Hagen, concerning this report, and
also copies of cables addressed by the Director of the Bureau of Administration
and Management to Mr. Hagen.
To corroborate his achievement in Yemen the Applicant would like to refer
the Court to a telegram received from the Minister of State, Persona! Repre
sentativeof the President of the Republic, which states:
"Your departure ... created vacuum in UNA TIONS presence in Yemen
as well as in the Yemini hearts. Your work and achievement in Yernen
created prestige for UNATIONS and optimism which we hope will not
perish by your departure. We pray and plan for your early return to
Yemen for the benefit of both Yemen and UNATIONS. Regards and best
wishes to you and yours. Yahya H. Geghman, Minlster of State, Persona!
Representative of the President." (Doc. No. 3, Annex 49.)
ANNEX B TO PART Il
To support the arguments presented to the Court on other occasions, the
Applicant would like to devote a few extra paragraphs in this Persona! Annex
to the contractual relationship that he had with the Respondent, to the lega!
instrument governing his association with UNDP, and to the practice of em
ployrnent in UNDP. lt is correct, of course, that the Applicant was under
fixed-term contract, and that the Applicant at the time he presented his state
ment to the Tribunal was not aware of ail rules governing his employment with
UNDP; the Tribunal, however, was fully aware of the rules governing em
ployment in UNDP. A fixed-term appointment is governed by Rule 104.12 (b):
"(b) Tite Fixed-Term Appoint ment
The Fixed-Term Appoint ment, having an expiration date specified in the
letter of appoint ment, may be granted for a period not exceeding five years
to persons recruited for serviceof prescribed duration, including persons
temporarily seconded by national governments or institutions for service COMMENTS OF MR, FASLA 165
with United Nations. The Fixed-Term Appointment does not carry any
expectancy of renewal or of conversion to any other type of appointment."
(Doc. No. 15.)
The Applicant, however, was not only governed by the Staff Rules of the
United Nations, but also by the Field Manual of UNDP. (See Field Manual for
International Staff.) This instrument which has been recognized by the Tribunal
in other instances, as well as by the Respondent as part of his contractual
obligations, reads as follows (Annex, Attachment No. 1):
"1. General
Members of the United Nations Development Programme field estab
lishment individually and collectively represent the Programme in the
'theatre of operations'. As such, they have particular responsibility in
adhering to the principles set forth in the United Nations Charter, Article I
of the United Nations Staff Regulations, and in the Report on Standards
of Conduct in the International Civil Service. Members of the staff are
selected for field assignments on the basis of both professional and personal
qualifications, and in the awareness that they ail become, officially or un
officially,and rcgardless of grade, representatives of the United Nations
organizations in their countries of assignment.
UNDP field staff and their agency colleagues may become the only
contact or link between nationals of the host country whom they meet and
the United Nations, and thus inevitably, through their official and per
sona! behaviour, influence local attitudes towards the Organization as a
whole.
The experience of sixteen years has shown that successful careers in the
field establishment have been characterized by diligent adherence to the
standards of conduct enumerated above; efforts to know the countries of
assignment, their peoples, histories, cultures, and languages; continuing
attempts to see and understand the development assistance programmes in
the context of the country's needs; devotion to the service assistance, and
hard work.
2. Applicabilityof the ru/es
UNDP Staff are governed by the United Nations Staff Regulations and
the 100 series of Staff Rules. These Regulations and Rules app!y to all
staffappointed by the Administrator or Co-Administrator and staff who
are transferred or seconded to the UNDP from an Executing Agency. ln
exceptional cases a staff member may be assigned, for a very limited period,
'on Joan' from an Executing Agency. ln such cases, and if iis so stated in
the Joan agreement, the staff mcmber will be subjcct to the administrative
supervision of UNDP but may continue to be subject to the staff rules and
regulations of the releasing organization.
Project personnel are governed by the Rules and Regulations of their
own organizations.
The transfer, secondment or Joan ofstaffmembers to or from the UNDP
secretariat will be arranged within the framework of the provisions of the
'Memorandum of understanding among organizations applying the United
Nations common system of salaries and allowances concerning inter
organization transfer, recruitment or loan of staff!. Departures from the
' Otherwise known as the "inter-agency transfer agreement", Appendix G ta
CCAQ report Co-ordination/430.166 APPLICATION FOR REVIEW
terms of the memorandum may be made in cases of agreement between the
UNDP, the staff member and the organization concerned, provided that
such departures are within the staff rules and regulations.
This section of the Field Manual is intended to amplify and supplement
certain rules, but in no case should it be considered as replacing or modi
fying the staff rules and regulations. It should be noted that United
Nations staffrule 206.4 (a) to (g) also appliesto UNDP field staff.
3. Administration of the ru/es
Subordinate staff are directly responsible to the Resident Representative
and through him to the Administrator of the UNDP. The Secretary
General has delegated to the Administrator certain authorities for the
administration of UNDP personnel, including the authority:
(a) to appoint, promote and termina te their staff, provided that staff on
secondment from the United Nations may be promoted only for the
period of their second ment and terminated only in agreement with the
United Nations;
(b) to determine their entitlement to allowances and benefits in accordance
with the UN staff regulations, staff rules and related directives;
(c) to grant certain benefits through the exercise of discretionary authority
as envisaged by the rules, provided such decisions are in conformity
with the general policy applied by the United Nations,
This delegation of authority excludes:
(a) award of compensation in the event of death, injury or illness attribu
table to service with the United Nations (Rule 106.4 and Appendix D
to the Staff Rules);
(b) disciplinary measures and appeals involving recourse to the joint
advisory bodies established under Rules I IO.1and 111, 1;
(c) interpretation of the staff regulations and staff rules in cases involving
general policy;
(d) exceptions to the staff rules(Rules 112,2).
4. Type and duration of appointments
International staff may be detailed from UNDP Headquarters, seconded
from the United Nations or an Executing Agency, or appointed directly
for service in field offices under a Letter of Appointment signed by the
Administrator or on his behalf.
Appointments are normal/y granted on a fixed-term basis and are renew
able. Normally, permanent UNDP appointments are granted on/y a/ter at
least a total of Jour years' service in two separate duty stations or at /east
under two di!ferent supervisors. However, permanent UNDP appointments
may be granted to staff members transferred from Executing Agencies
where they already hold permanent appointments.
There is no fixed rotation period for field staff, but normally assignments
to a particular duty station will be for not Jessthan two years or more than
#iveyears." (Emphasis added.)
The Applicant would also like to mention a provisional statement of Policy
Guidelines for Personnel Management Field Offices. Section 1, paragraph 5
(Annex, Auachment No. 2), states:
"For ail these reasons the present policy of considering staff members
for the grant of permanent appointments only towards the end of their COMMENTS OF MR. FASLA 167
fourth year of service in UNDP will be maintained at least for some time
to corne. The possibility, however, of mitigating the requirernent of a rela
tively long prelirninary service will be kept in mind in individual cases
especially where the Staff Member concerned had a sufficient period of re
levant experience in another international organization prior to joining
UNDP or in the case of well-qualified junior staff possessing the required
educational and linguistic qualifications."
The AppHcant wou\d 1iketo argue here that there is a difference between the
fixed-term appointment described in Staff Rule 104.12, and the fixed-term
appointment offered by UNDP and described in CM Field Manual which
supplements Staff Rules. This is due to the working conditions and the speciali
zation of work in the field, not encountered in the United Nations Secretariat.
The fixed-term contract covered by the United Nations Staff Rule deals with
work contracts whose termination date is reasonably ascertainable, and the
nature of which justifies the use of this type of contractua1 instrument. It is used
for programmes with budgetary limitations and for projects of technical assistance
that are designed to have a limited duration. It is used also for UNDP staff at
Headquarters and, more genera!ly, in situations where personnel are recruited
by the Organization under some political pressure.
However, the fixed-term contract used by UNDP, especially for ils field
managers, is renewable in accordance with the CM Field Manual; members of
the staff holding this contract are specially selected and after four years shou1d
be either granted a permanent contract or terminated.
The fixed-term contract offered by UNDP for its field personnel gives rise to
feelings of permanency, or to expectations of tenure, despite the fact that fixed
date of termination is incorporated in the letter of appointment. In fact, in
UNDP, the letter of appointment is given to the staff only a month before the
legal termination of their duties.
The Applicant would like to submit as evidence the letter of appointment he
received. Although it appears that it is signed in 1968, the form on which it is
printed dates from 1969. (Please see the left corner where the date of the form is
printed.) (Annex, Attachment No. 3.)
lt must also be noted that UNDP would not require a staffmember to convert
his United States Permanent Resident visa to a G4 visa if the staff member was
not expected to remain with the Organization, as itwas in the case of the
Applicant, who joined the Organization at the request of Sir David Owen, at
that time Chairman of the Board of TAB.
The Applicant therefore requests the Court to consider the contractual
relationship between the Respondcnt and the Applicant as a contractual rela
tionship between UNDP and a former staff member of UNDP's Field Office.
The Applicant contends that after four years of association with UNDP he
should have been granted either a permanent contract or terminated if his
services were unsatisfactory, In fact, in accordance with the rulesestablished in
the United Nations, the granting of within-grade salary increment has been
recognized by the United Nations Joint Appeals Board and the Respondent as
evidence of satisfactory services (see UN Administrative Tribunal Judgement).
The Applicant contends that the United Nations Administrative Tribunal bas
committed a fundamental error in procedure and/or failed to exercise a juris
diction vested in it, in omitting to consider fully the special contractual relation
ship governing the Applicant as a former UNDP staff member of Field Office,
and the Respondent, especially in view of the fact that all lega\ instruments
presented above should have been known to the Tribunal and to its legal ---····----------------------
APPLICATION FOR REYIEW
168
adviser, the Bureau of Legal Division of the United Nations, which drafted
them.
Furthermore, the Applicant contends that the United Nations Administrative
Tribunal has committed a fondamental error in procedure and failed to exercise
jurisdiction vested in it, in not considering the obligation of the Respondent to
find the Applicant a position in view of the fact that the Applicant was the on/y
Algerian professional staff member of UNDP at the time; furthermore, the
Applicant was the only African, French-speaking staff member at UNDP
Headquarters. These considerations should have been taken into account in
accordance with paragraph 3of Article 101of the Charter, which states:
"The paramount consideration in the employment of the staff and in the
determination of the conditions of service shallbe the necessityof securing
the highest standards of efficiency, competence, and integrity. Due regard
shall be paid to the importance of recruiting thestaff on as wide a geograph
ical basis as possible."
Regulation 4.3 also states:
"ln accordance with the principles of the Charter, selection of staff
members shall be made without distinction as to race, sex or relîgion. So
far as practicable, selections shall be made on a competitive basis." (Staff
Rules.)(Doc. No. 1S.)
Given the above regulations, it is interesting to note that the majority of
UNDP staff during the period of the Applicant's employment were of three or
four nationalities; actually, most of them were of the nationality of the Director
of Bureau of Administration and Managernenl of UNDP, Mr. Vaidyanarhan;
the latter, as it is known to the Court, was found guilty by the United Nations
Administrative Tribunal of prejudice against the Applicant.
The Applicant contends that the Tribunal comrnitted a fundamental error of
procedure and failed to exercise jurisdiction vested in it in failing to look into
the circumstances under which the Applicant was employed and failing to give
any consideration to General Assembly resolution 153 (Il),which states:
"Whereas, in view of its international character and in order to avoid
undue predominance of national practices, the policies and administrative
methods of the Secretariat would reflect, and profit to the highest degree
from, assets of the various cultures and technical competence of ail
Member nations ... "
The Applicant refers also to resolution 2241 (XXI) (Annex. Attachment No.
4) adopted at the 1501st plenary meeting of 20 December 1966, and to reso
lution 153 (Il) (Annex, Attachment No. 5) which emphasizes the necessity of a
more equitable distribution of posts at Headquarters, and makes a strong re
commendation tha! in the recruitment of staff members, preference will begiven
to a professional candidate from inadequately represented countries.
The Applicant also contends that prejudice and discrimination have abounded
in the recruiting practices of the United Nations and more specifically those of
the UNDP, which enjoys considerable freedom in matters of personnel, and is
not subject to control in this matter by the General Assembly.
The Applicant thus contends that although nationality, origin, race, ethnie
group, religious or linguistic restrictive covenants are no longer judicially or
administratively enforceable in the United Nations and especially in UNDP, in
matters of personnel they are still used, and the pattern they helped to create COMMENTS OF MR. FASLA 169
still persists. They appear to be reinforcedby the Judgement of the Tribunal
concerning the Applicant.
In UNDP, national, religious and linguistic nepotism is an unwritten rule.
ltwas legitimated by Secretary-Gencral U Thant when he stated in his address
to the Conference on Human Survival at the United Nations Secretariat:
"We need to develop a second allegiance ... First of all our own state
and secondly the international community represented by this great
organization."
The first al[egiance of a staff member was thus to be directed to his nation or
to his group and then to the United Nations (especially important for a staff
member).
The Applicant to further emphasize his point would like to refer the Court to
chapters of the book Play within rhe Play by Mr. De Sa, former Under-Secre
tary-General of the United Nations. More recently, an article concerning UNDP
Personnel policy was published in New York by the Delegate World Bulletin
under the headline: "UNDP Staff Recruitment Questioned", 18December 1972
(see Annex, Attachment No. 6).
The Applicant contends that the United Nations Administrative Tribunal
committed a fundamental error of procedure and failed to exercise a jurisdic
tion vested init in omitting from its consideration the existence of Rule 104.14
(ii), which formspart of the contractual obligation of the Respondent:
"(ii)Subject to the criteria of Article \01.3 of the Charter, and to the
provisions of the Staff Regulations 4.2 and 4.4, the Appointment and
Promotion Board shall, in filling vacancics, normally givc preferencc, where
qualificationsare cqual, to staff members already in the Secretariat, and
staff members in other international organizations." (Rule enforced in
UNDP.)(Doc. No. 15.)
lnfact, the Applicant has reasons to believe that the Appointmen\ and Pro
motion Board has never been consulted for the Applicant's reassignment.
Legally, before any reassignment of a staff member, the members of the
Appointment and Promotion Board are informed, either over the telephone or
at a formai meeting, about the intention of the Headquartcrs to assign a staff
member to a specified post. Following this procedural requirement UNDP
should theoretically inform the Resident Representative of the intention of the
Headquarters to appoint a staff member under his jurisdiction. Document,
Annex, Attachment No. 7 demonstrates to the Court how under normal
circumstances, UNDP assigns staff members to various posts. Following the
acceptance of the Appointment and Promotion Board, UNDP, for example,
sent the following cable to theNDP Office in Sierra Leone:
"Undevpro Freetown (Sierra Leone)
Confidential Faruqi re your Hotsprings conversation with Vaidyanathan
concerning Guruns Replacement please confirm wecan proceed assignment
Mohamed Fasla Algerian national as Assistant Resrep. Birt." (Annex,
Attachment No. 7.)
To this cabJethe Resident Representative of UNDP in Sierra Leone answered:
"Undevpro New York
25 Birt your 26acccpt Mohamed Fasla kîndly send CVetc. Faruqi." (Annex,
Attachment No. 8.)170 APPLICATION FOR REVIEW
In accordance with the practices of the UNDP, the Resident Representative
is not in a position to refuse any staff member designated to work under him.
The Resident Representative is unable and even in some cases ungualified to
make any such judgment since his own appointment is more politica\ than
professional. ln fact, it is the Assistant Resident Representative or the Deputy
Resident Representative who runs the Office.
The timing of request for a new assignment usually coincides with the visit of
a senior officer who actually determines the outcome of the decision.
In his statement to the Tribunal the Respondent stated that the Applicant's
candidacy was rejected by the Resident Representative in Jordan and by the
Resident Representative in Morocco. The App\icant wou\d like to contend that
neither of these two Resident Representatives was in a position to refuse his
candidacy. The first one was not only new1yappointed, but even though he had
been allotted more than $60,000 to study the situation in the Yemen Arab
Republic, he was unable to prepare the Programme because he had little know
ledge of economic development. The Applicant was subsequently sent to correct
the errors that had been recognized by the Headquarters, and rectified through
the Applicant's efforts.
To prove the discriminatory nature of what the Respondent cal\s "efforts to
assign the Applicant", the Applicant would like to give further evidence of pre
judice against him: on 30 June 1969, the UNDP Office in New York received
the following cable from Mr. Vaidyanathan, Director of the Bureau of Adminis
trative Management who met Mr. Sarfraz in Geneva:
"Undevpro New York
602 Grafteaux frorn Vaidyanathan. Your letter nineteenth June Jordan
needs good experienced Assistant Resrep. Doubt the two candidates you
mention meet these criteria. Willadvise further if I have any suggestions.
Undevpro Geneva,'' (Annex, Attachment No. 9.)
This contradicts the evidence produced by the Respondent according to
which UNDP wrote only on 29 Ju/y 1969 to Mr. Sarfraz, Resident Represen
tative of the UNDP inJordan:
"Fasla, M.
3.1.02. Jordan 29 July 1969.
Persona!and confidential
Dear Mr. Sarfraz,
Regrettably, our efforts to fill the additional professional post for your
officehave so far been unsuccessful.
I am, however, enclosing the fact sheet of Mr. Mohamed Fasla (Algeria),
who happens to be available immediately, and I shall be glad to learn
whether you would like Mr. Fasla to beassigned to your office.
Looking forward to hearing from you.
(Signed) (for) John BrRT,Chief, Personnel Division
Bureau of Administrative Management and Budget."
(Annex, Attachment No. 10.)
to which Mr. Sarfraz answered by cable, received 6 August:
"Undevpro New York
213 Confidential Birt your let twentynine July assignment Fasla Amman.
Regret his qualificationsdo not correspond Amman requirements. Grate
ful continuing efforts for early assîgnmentrr this Office (Signed) Sarfraz."
(Annex, Attachment No. 11.) COMMENTS OF MR, rASLA 171
The Applicant draws respectfully the attention of the Court to the falsehood
and bad faith shown by the Respondent regarding this matter and ignored by
the Tribunal in spite of the fact that ail these documents were in the hands of
the United Nations Administrative Tribunal and unknown to the Applicant
until now.
lt is important for the Applicant to emphasize that the Director of the
Administrative Bureau of Management, whom the Tribunal found guilty of
prejudice against the Applicant, had already met Mr. Sarfraz in Geneva. Thus,
the latter was under Mr. Vaidyanathan's influence and had decided in advance
to reject the candidacy of the Applicant; therefore, when a letter was sent to
him regarding the Applicant, he reported back that Mr. Fas)a was not qualified
for this position and following "accepted" practices of UNDP, sent a cable to
the Headquarters which could be used in the Applicant's file to show that
UNDP had made every effort to find a job for the Applicant.
The UNDP also daims that it fulfilled its obHgations to pursue a job opening
for the Applicant in Morocco (Annex, Attachment No. 12) where in fact the
same scenario had been played.
Although in accordance with the practices of UNDP, an acting representative
cannot refuse assignment, the App]icant was informed by former colleagues
that when UNDP submitted the Applicant's fact sheet and application to
Morocco, Mr. Paul Marc Henri who was behind the decision of the precipitous
recall of the Applicant from Yemen, had been instructed to urge the acting
Resident Representative to refuse the Applicant's candidacy. Should the
Respondent deny this, the Applicant requests the production from the Officeof
the Controller of travel claim of Mr. Paul Marc Henri's travel schedule in
Morocco during this period. The Applicant contends that within a few weeks
before or after the Applicant's candidacy had been presented to the acting
Resident Representative in Morocco, Mr. Henri had also visited Morocco.
The Applicant would like to refer again to the unanimous decision of the
Joint Appeals Board, which unanimously recommended that UNDP make
serious efforts to place the appellant in a suitable post either within UNDP or
within one of the other international organizations. Following the Secretary
General's decision, the Applicant, by a letter dated 12 August 1970, requested
Mr. Paul Hoffman's opinion and decision regarding this recommendation.
The Applicant has learned that his letter never reached Mr. Hoffman. It was
directed instead to Mr. Narasimhan, Chief of Cabinet of the Secretary-General,
and Deputy Administrator of UNDP. Mr. Fasla actually received an answer to
his letter on 26 August 1970; it informed him that all possible efforts had been
made to find him a suitable post when he was under contractstatute with UNDP
and accordingly there would be no further appointment in the future. Actually
in the Applicant's original letter addressed to Mr. Hoffman of 12 August 1970
and circulated to Mr. Narasimhan, there was a note near the paragraph stating
that UNDP should make serious efforts. lt read: "This is not envisaged in view
of the UN Chief of Personnel\; comment on this report."
Applicant draws the attention of the Court to the fact that the alleged decision
of the Secretary-General to pursue the issue, as recommended by the Joint
Appeals Board, was unfounded and could not be implemented since in the
meantime the Chief of Personnel in a confidential report, destroyed all chances
for a fair re-evaluation of the Applicant's qualifications.
The Applicant feels that the Secretary-General failed to fulfil his moral obli
gation, not only as Chief of the United Nations, but as a person presiding over
an important matter dealing with the humanitarian rote of the United Nations.
The Applîcant further contends that the United Nations Administrative172 APPLICATION FOR REVIEW
Tribunal committed a fundamental error of procedure and failed to exercise
jurisdiction vested in it by not considering the legal and moral obligation of the
Secretary-General to find a position for the Applicant despite the fact that the ·
evidence was available toit.
SUPPLEMENT TO PART IV
ltis customary in UNDP for the Administration to request a waiver from the
staff member assigned to an area Jess rhan one year, in order to avoid paying
him per diem allowance. This isapplicable where the staffmember isassigned to
an area not considered a hardship assignment. During the Applicant's short
six-month assignment in Lebanon, he was officially requested to sign such a
waiver, so that he would not request per diem allowance. This standard practice
is unknown to the United Nations Secretariat (doc. No. 3, Annex 72).
The Applicant would respectfully like to draw the attention of the Court to
the fact that his assignment in Yemen subjected him to conditions which were,
indeed, as difficult as anywhere in the world.The Applicant had been provided
with incorrect and misleading written information about housing, schools,
health services, which facilities had existed only temporarily in the country
during United States AID operations, and which were terminated three years
before the Applicant's assignment. This Ieads the Applicant to think that this
incorrect information was intentionally planned, or else that the Headquarters
was very badly informed. At the time the Applicant arrived in Yemen, he was
maintained at his New York salary until the end of the year. This is contrary to
the Rules of the United Nations, but such consideration has been taken in
UNDP standard practice.
Contrary to the rules regarding the matter of household removal as stated by
the Respondent, it is Rule 107.21 which is used by the UNDP to determine the
payment of subsistence allowance as claimed by the Applicant.
"107.21 (/)
On appointment, transfer or separation, where no entitlement to removal
costs exists under Rule 107.27, and on travel to or from a mission assign
ment of one year or more under Rule 103.21, a staff member may be re
imbursed expenses in transporting personal effects and household goods by
land and/or sea up to a maximum, including the weight or volume of pack
ingcrates, etc., of
300 kgs (660 lb. or 66 cubic feet) for the staff member
300 kgs (660 lb. or 66 cubic feet) for the first dependant and
100 kgs (220 lb. or 22 cubic feet) for each additional
dependant authorized to travel at the expense of the Organization provided
that the total weight or volume shall not exceed 900 kgs (1,980 lb. or 198
eubic feet) for the staff member and hisdependanls.
(g) Reasonable costs of packing, crating, cartage, unpacking and un
crating of shipments within the limits of authorized weight or volume will
be reimbursed, but storage charges, other than those directly incidental to
the shipment, and costs for servicing of appliances, dismantling or installa
tion of fixtures or special packing shall not be reimbursed.
(h) On appointment, transfer or separation, where entitlement to removal
costs does exist under Rule 107.27, a staff member may be reimbursed
expenses in transporting a reasonable amount of excess baggage by land
and/or sea provided that such shipment shall not exceed the maximum COMMENTS Of MR, fASLA 173
weight or volume allowable under paragraph (f) of this rule and that the
weight or volume of such shipment shall be deducted from the maximum
weight or volume allowance under paragraph ( d) of Rule 107.27."
The Applicant was not authorized to have his household moved, due to the
fact that the difficulty in making shipping arrangements made transport at the
time impossible. Therefore, the Applicant and his family arrived in Yemen with
only hand luggage. The Applicant was assured that a furnished bouse would be
provided at minimal cost, as stated in the Sarfraz report. Upon arrivai the Ap·
plicant found that he had to rent a house, which was more costly than the apart
ment he had in New York. He, himself, made considerable repairs in order to
bring it to an acceptable standard of habitability. He had to buy ail the house·
hold furnishings at high cost, since ail his household furniture was in storage in
New York and could not be removed. The Applicant respectfully encourages
the Court to read the Hagen report on living conditions in Yemen (Attachment
No. 6 to main text), in order to corroborate the Applicant's statement of the
hardship imposed on him by this assignment.
The Applicant had to be separated from his eight-year old daughter in order
for her to continue her education which was made possible thanks to the kind
ness of an American family and to the special authorization ofthe Director of the
United States Military Children's School in Asmara, Ethiopia. This arrange·
ment necessitated frequent costly trips to Asmara by his wife so as to maintain
a close relationship with the young child, for whom the separation was very
painful.
In view of the fact that the Applicant was only given Iwo working days to
leave Yemen, he was unable to transport ail the investment he had made because
removal authorization was not provided and because of the Jack of a facility for
transport. Jt was impossible to sel! or store his purchases so he had to abandon
ail of his investment. The Applicant reiterates that the alternative olfered by the
Secretary-General to reimburse the Applicant for substantial lasses that he
could show were suffered as a result of the Applicant's precipitate recall from
Yemen is highly inequitable since the Applicant had no reason to preserve any
receipts required, even assuming that receipts were available in Yemen.
The United Nations Administrative Tribunal confirmed the decision (doc. 1
inAnnex 11):
"33. Any requests for payment made in accordance with paragraph XV
above shall be submitted, together with the necessary supporting evidence,
by the Applicant to the Respondent within a period of two months from
the date of this judgement."
The Applicant, in accordance with the timing prescribed in the judgement,
has submitted a daim for paymcnt in accordance with paragraph XV of the
judgement, but still has received no payment from the UNDP. The Applicant is
entitled to payment not only in regard to the daim for recalculation of salary
and allowance, but also for the losses occasioned by his sudden recall from Ye
men.
The Applicant contends that the Respondent has deliberately misled the
highest Court in the world with his assertion in paragraph 79 on page 54,supra,
of his statement where he claims that:
"lndeed, Mr. Fasla's assertion of a regular practice of such recomputa
tion is rcfuted by his own experience in Sierra Leone: originally assigned
there for aperiod of over a year, he was granted the usual Installation and
Assignment Allowances; when he was transferred from Freetown to Taiz,174 APPLICATION FOR REVIEW
after only three and a half months he neither claimed nor was he offered
any recalculation of emoluments or a Subsistence Allowance for the time
spent in Freetown."
The Applicant would like to give again evidence of falsehood on the part of
the Respondent and to state certain facts about his stay in Freetown. ln the
first place, the Applicant was receivinghis salaryat the New York post adjust
ment, second, he was without dependants in Sierra Leone, and was awarded
under one of the discretional powers thal the Administrator of UNDP and the
Resident Representative have, and in accordance with the UNDP practice
known by the Respondent, per diem, not for the regular period of 15days, but
doser to 40 days while receiving his subsistence allowances. Evidence of receipt
can be easily traced by the Respondent either through the vouchers of dis
bursement which are in the hands of the Bureau of Management and Budget, or
in the Officeof the Controller of the United Nations, or the journal of account
ofUNDP officeduring his stay in Sierra Leone.
Third, the per diem ceased on the day UNDP provided the Applicant with a
house partly subsidiied by the Sierra Leone Government, and partly by the
fund of stabilization managed by the UNDP office.
The househad beenrented for the Applicant in the free market for theamount
of $500 per month. The house had been completely furnished by the Oepart
ment of the Establishment of the Government of Sierra Leone, in accordance
with an agreement between UNDP and the governments ofvarious developing
countries.
lt is for this reason that the Applicant did not request for his stay of three
and one half rnonths in Sierra Leone a recalculation of his salary and allowan
ces. If the Applicant had been provided with these facilities in Yernen, which
were available at other posts, be would not have requested a recalculation of his
allowance.
The Applicant contends also that the living conditions in Yemen were not
comparable to the living conditions in Sierra Leone, where no hardship of
living conditions was experienced. Reasonableness with respect to such costs
and allowances depends on the specific circumstances. The peculiar hardship
associated with a precipitate return frorn Yernen are what make it so unfair
and arbitrary to deny the Applicant the relief he seeks under plea (p),or to
explain whysuch a denial isreasonable. COMMENTS OF MR. FASLA 175
LIST OF ATTACHMENTS
TO THE PERSONAL ANNEX OF MR. MOHAMED FASLA 1
1. Extract from UNDP Field Manual, 15December 1966
2. Provisional statement of Policy Guidelines for Personnel Management in
UNDP Field Offices30 August 1966
3. Amended letter ofappointment, 5June 1968
4. UN General Assembly resolution 2241 (XXI), 20 December 1966
5. UN General Assembly resolution 153 (II), 15 ovember 1947
6. Extract from The De/egates World Bulletin,18December 1972
7. Cable from Mr. Birt to Mr. Faruqi,10 April1968
8. Cable from Mr. Faruqi to Mr. Birt, 17 April 1968
9. Cable from Mr. Vaidyanathan to Mr. Grafteaux, 30June 1969
JO. Letter from Mr. Birt to Mr. Sarfra29 July 1969
11. Cable from Mr. Sarfraz toMr. Birt,6 August 1969
12. Letter from Mr. Fasla to Mr. Hoffman, 12August 1970
1 Attachmentsnot reproduced. [Nore by the Regisrry.]
Written Comments (Secretary-General of the United Nations, Mr. Fasla)