UNJSPF's Response to Our Common Cause Appeal submitted as of 28 Oct 2009

BEFORE THE UNITED NATIONS

APPEALS TRIBUNAL

COMMON CAUSE APPEAL

S.P. SUNDARAM (APPLICANT 1), V. MUTHUSWAMI (APPLICANT 2)

AND G.S. SRINIVASAN (APPLICANT 3)

ON THEIR OWN BEHALF AND ALSO ON BEHALF OF OTHER RETIREES

APPLICANT

UNITED NATIONS JOINT STAFF PENSION BOARD

RESPONDENT

Statement of the issue

1. This case concerns an appeal by a number of retired employees of the United Nations and other member organizations, who are now in receipt of pension benefits from the United Nations Joint Staff Pension Fund (“UNJSPF” or the “Fund”). The appeal is against the decision of the Standing Committee of the United Nations Joint Staff Pension Board at its meeting in July 2009 to uphold the decision by the Chief Executive Officer of the Fund to deny the Applicants’ request to end, after a certain number of years, the reduction in the UNJPSF pension benefits of retirees who at the time of separation had exercised the option to commute into a lump sum a portion of their pension benefit entitlement in accordance with article 28 (g) of the UNJSPF Regulations.

Statement of facts

2. The three applicants who submitted the appeal on their own behalf and behalf of other retirees have been in receipt of a reduced UNJPSF monthly pension in accordance with Article 28 of the UNJSPF Regulations, because at the time they separated from the service of their respective former employing organizations, they each opted to commute a portion of their UNJSPF pension benefit entitlement into a one-time lump-sum that was payable (and actually paid) to them immediately by the UNJSPF.

3. In a letter sent to the Chief Executive Officer (“CEO”) of the Fund on 22 March 2009 (Annex 5), Applicant 1 requested that the reduction imposed on periodic UNJSPF pension benefits on account of a partial lump-sum commutation should be ended "once the indebtedness was cleared".

4. In an e-mail response sent on 5 April 2009 to Applicant 1 and Applicant 2 (Annex 6), the Fund's CEO confirmed, inter alia, that "without leaving any discretion to the Fund's CEO, the UNJSPF Regulations require that, for those UNJSPF retirees who opt for the immediate one-third lump-sum commutation of their otherwise payable UNJSPF retirement benefit, the one-third reduction in the benefit payable be applied for the lifetime of the retiree" and that to establish the commutation amount "the calculation is done on an actuarial basis". The CEO added that Applicant 1 and Applicant 2 were free to lodge an appeal pursuant to Section K of the UNJSPF Administrative Rules.

5. Following further communications exchanged between the CEO and Applicant 1, which were copied to a number of other UNJSPF retirees, the CEO received from Applicant 1 a formal request for review by the Standing Committee (Annex 1 of the Applicants’ submission). Between 21 May 2009 and 26 June 2009, identically worded formal requests for review regarding the same subject were also received from 40 other UNJSPF retirees. In addition to the formal requests, the Fund secretariat also received e-mail messages and letters from a number of UNJSPF retirees, expressing their support for the appeals that had been filed.

6. The Standing Committee of the Fund considered the case at its 191st Meeting held on 15 July 2009 and determined that:

a) The decision by the Chief Executive Officer of the Fund to deny the application to end, after a certain number of years, the reduction in the UNJPSF pension benefits of retirees who at the time of separation had exercised the option to commute into a lump sum a portion of their pension benefit entitlement in accordance with article 28 (g) of the UNJSPF Regulations was fully compliant with the relevant UNJSPF Regulations; and

b) Reductions in UNJSPF pension benefits on account of optional lump-sum commutations remain in effect for the lifetime of the UNJSPF retirees concerned.

Respondent’s legal arguments

7. The following provisions in the UNJSPF Regulations govern generally the partial lump-sum commutation option:

Article 1(f) - "Commute" shall mean cause to be converted and paid in a lump sum part or the whole of a benefit otherwise payable at periodic intervals, according to the actuarial tables of the Fund.

Article 28(g) - A benefit payable at the standard annual rate may be commuted by the participant into a lump sum subject to the following limitations and to supplementary article D, where applicable:

(i) If the rate is 300 dollars or more, the amount of the lump sum may not exceed the smaller of:

(A) The actuarial equivalent of one third of the benefit; or

(B) The actuarial equivalent of one third of the maximum benefit that would be payable to a participant retiring at the normal retirement age, on the same date as the participant, with a final average remuneration equal to the pensionable remuneration on that date for the top step of level P‑5 on the scale of pensionable remuneration in appendix B below;

(ii) Nevertheless, if the amount calculated under (i) above is less than the amount of the participant's own contributions, then the benefit may be commuted to the extent of the latter amount;

(iii) If the rate is less than 1000 dollars, the benefit may be commuted to the extent of its full actuarial equivalent; if a participant is married, the prospective benefit payable to his or her spouse may also be commuted at the standard annual rate of such benefit.

Article 29(c) The benefit may be commuted by the participant into a lump sum to the extent specified in article 28(g) for a retirement benefit.

8. It is therefore very clear that, under the UNJSPF Regulations, when a UNJSPF participant upon retirement makes a personal choice and elects to exercise the option to commute a portion of the UNJSPF pension entitlement into an actuarially calculated lump sum, the resultant reduction in the UNJSPF pension will then remain in effect for the lifetime of that UNJSPF retiree. It should be noted that such a commutation and the ensuing reduction in the benefit does not have an impact on any potential survivor’s benefits. At paragraph 23 of their submission, the Applicants refer to Article 43 of the UNJSPF Regulations (“Recovery of Indebtedness to the Fund”) in relation to the above provisions concerning commutation. Article 43 addresses situations where the Fund makes an (actual) overpayment to a beneficiary and is required to recover the sum paid since there is no entitlement and no payments are due to, or on account of, a UNJSPF participant or beneficiary. This provision has no relevance to the lump-sum commutation, which provides for the immediate payment of a pension entitlement, rather than one that would otherwise be payable at periodic intervals.

9. The UNJSPF is a defined-benefit type pension plan. In a defined-benefit pension plan the employer promises the employee on retirement a periodic benefit that is predetermined or “defined” by a formula which considers the employee’s earnings history, years of service and age, rather than resulting from what the employee and employer contributed and the investment returns. Participants in the Fund who are due to be separated from their employing organizations and are entitled under article 28 of the UNJSPF Regulations to receive a retirement benefit upon reaching normal retirement age or those who have reached the age of 55, but have not reached normal retirement age and choose an early retirement under article 29, are required by the Fund to submit their payment instructions on Form PENS.E/7 (Annex 7). The form offers participants the option to receive a full pension or full early retirement pension as the case may be, or they can receive up to one-third as a lump sum and the balance as a reduced periodic monthly benefit. Hence, commutation, an option for UNJSPF participants, is a one time, permanent conversion of the right to a lifetime periodic retirement benefit into a lump-sum payable to the beneficiary immediately at the time of separation from service. The sum is calculated on the basis of actuarial factors that take into account relevant interest rates and the beneficiary’s life expectancy, in accordance with article 1 (f) of the UNJSPF Regulations. Commutation does not create any benefit that might be due but unpaid by the Pension Fund. The UNJSPF Regulations permit participants to opt for a partial lump sum commutation of the retirement benefit; however, the Regulations also require that the one-third reduction in the benefit is applied for the life time of the retiree.

10. As a defined benefit plan, UNJSPF pools assets and shares the assumed collective risk for the eventual UNJSPF pension liabilities among all its participants (as at 31 December 2008 112,804), drawn from the Fund’s 23 member organizations. The Fund uses those pooled assets to provide benefits to staff members globally (periodic benefits in payment as at 31 December 2008 to 59,945 beneficiaries in 190 countries). The equal contribution and benefit levels are determined without regard to the identity of the member organization that employs the staff concerned. Likewise, nationality, former duty station or country of residence has no relevance to entitlements under the UNJSPF Regulations. Country of residence is relevant only under the UNJSPF Pension Adjustment System, in case the beneficiary opts for the so called two- track pension adjustment system. All UNJSPF participants contribute the same percentage of their pensionable remuneration regardless of their age, length of service, career progress, marital status, whether they have minor children or not, and irrespective of the location of their duty station.

11. Similarly, the commutation amounts are determined on the basis of factors that account for interest rates and life expectancy for the Fund population as a whole. The aggregated risk on a collective group basis means that, for example, life expectancy is an average: the actuarial calculations presuppose that some participants will die before, and others after, reaching the projected life expectancy. Therefore, retiring participants who die shortly after commuting part of their pension into a lump sum realize -at the expense of the Fund - a significant economic gain, which is balanced by those who live substantially longer than the projected life expectancy. The request of the Applicants would require a fundamental change in the level of contributions from participants and member organizations to fund the type of benefits requested by the Applicants. Obviously, it would also require changes to the UNJSPF Regulations, which – pursuant to Article 49 of the UNJSPF Regulations - can only be made by the United Nations General Assembly after recommendations made by the United Nations Joint Staff Pension Board (“Pension Board”). The UNJSPF system is non-discriminatory and fair to all participants and UNJSPF secretariat administers it in a consistent and equal manner world-wide, without any violation of human rights or ILO Conventions. The request of the Applicants would, in turn, be unfair to those retirees who opted to take the full pension and no lump sum, if the lump sum were to be restored to those retirees who opted for the lump sum as they would be getting an additional benefit - one that has no basis in the current Regulations.

12. Under the authority of the Pension Board, the Pension Fund is entrusted to provide retirement, death, disability and other benefits and related services to its participants, retirees and beneficiaries. To meet its long-term commitments, the Fund must ensure an adequate level of investment return on its assets while mindful of the approved risk tolerance philosophy and the requirements posed by its liabilities. The UNJSPF has in place a system for oversight of its assets and liabilities, which includes the Committee of Actuaries. The Committee of Actuaries consists of seven independent actuaries selected from the five different regions of the world. In addition to reviewing and approving the actuarial assumptions, which are also reported to the Pension Board and the UN General Assembly, the Committee of Actuaries also analyzes the biennial actuarial valuations of the Fund and advises the Pension Board on other actuarial questions arising out of the operations of the Fund’s Regulations. When the United Nations Joint Staff Pension Board reviews the actuarial report, it recommends appropriate action, if any, dependant on the results of the valuation. Several interest groups in the Pension Board, which has a tri-partite membership, regularly propose changes to the plan design of the Fund on the basis of the actuarial evaluation, i.e., actuarial surplus or deficit.

13. When administering and managing public funds, the UNJSPF is obliged to rigorously follow its Rules and Regulations in all cases. The Fund cannot assume financial risks and responsibilities other that those that arise on a group basis from service in a UNJSPF member organization with concurrent contributions. Consequently, and in fairness to all other Fund participants, there is no scope for negotiation with any particular interest group. Neither the Chief Executive Officer nor any other person or entity of the Fund has discretionary authority to waive or modify the pension benefit that is payable to a UNJSPF retiree in conformity with the UNJSPF Regulations, Rules and Pension Adjustment System. UNJSPF retirees have an active voice through FAFICS (Federation of Associations of Former International Civil Servants) which has the right to participate in meetings of the Pension Board and its Standing Committee, as well as other inter-sessional groups of the Board. Indeed, the Applicants could have pursued this alternative avenue if they wished to change the current UNJSPF Regulations.

14. At paragraph 29 of the Application, the Applicants have given a number of reasons as to why they opted for commutation of a portion of their pension benefits, including repatriation and resettlement back in their home country, and the fact that they were aware that commutation is a feature of some civil service pension schemes. The Respondent notes that employees of the United Nations who return to their home countries upon separation from service are provided with a repatriation grant to allow them to settle back home. Further, there is nothing in the UNJSPF Regulations, Rules and Pension Adjustment System that gives the expectation that the lump sum that is commuted may be restored; an assumption based on the policy of another entity is therefore erroneous. Quite clearly, the life-time reduction of a UNJSPF periodic benefit is based on the definition of the term “commute” in article 1 (f) of the UNJSPF Regulations. The Regulations of the Fund and the payment instructions signed by participants are clear about the implications of the option to commute up to one-third of a retiree’s pension benefit: the remainder is paid as a monthly benefit.

15. The Applicants have cited as the basis of their request the policy of the Government of India to restore commuted pensions of civilian employees and Defence employees, as well as provisions of the Universal Declaration of Human Rights. They have also asserted that some of the national civil service pension schemes limit the period of commutation, however, no examples of other national schemes have been provided. The Respondent’s research into the issue has not identified examples of other national schemes that restore commuted portions of pensions. The 1987 Supreme Court Judgment provided by the Applicants (Annex 4) that led to the Government of India’s adoption of the policy to restore commuted pensions does not provide an actuarial basis for the decision. Rather, it is stated at page 4 of the judgment that the Government took the decision “as an act of goodwill to pensioners and to extend to them some measure of relief in the evening of their lives”. Further it should be noted that the Government of India introduced a defined contribution pension system for all new government employees entering government service from 2004 and which from 1 May 2009 has been made available to all Indian citizens aged between 18 and 55. A defined contribution plan does not generally promise a specific amount of benefits at retirement. In these plans, the employee or the employer (or both) contribute to the employee's individual account under the plan, sometimes at a set rate. The value of the account will fluctuate due to the changes in the value of the investments. The main reason cited for the new system adopted by the Government of India was the cost of the defined benefit pension system, which was found to be a huge financial burden. The benefit that the Applicants are seeking to introduce within the UNJSPF, has, therefore, not been included in the new Indian Government national pension system in effect since 2004 for its Government employees.

16. The Respondent notes that the only basis to pay UNJSPF benefits is the provisions in the UNJSPF Regulations; no national legislation has any relevance to the Fund, which is a subsidiary organ of the UN General Assembly and which enjoys the same privileges and immunities as the Organization itself. The way to amend the UNJSPF Regulations has been described above. As noted above, the Government of India has taken steps to change its national pension system due to the high cost of the defined benefit scheme that was in place prior to 2004, and which included the feature that the Applicants are seeking to adopt for the UNJSPF. The actuarial implications of the request by the Applicants are likely to be very substantive to the Fund. In addition to inequality it would create, the cost is probably the reason why such proposals have never been advanced in the Pension Board by any constituent groups, including FAFICS. Neither has the Committee of Actuaries made proposals to that effect.

Conclusions and pleas

17. On the basis of the foregoing, the Respondent respectfully requests that the Applicants’ appeal be rejected on the basis that the decision by the CEO of the Fund to deny the Applicants’ request to end, after a certain number of years, the reduction in the UNJPSF pension benefits of retirees who at the time of separation had exercised the option to commute into a lump sum a portion of their pension benefit entitlement in accordance with article 28 (g) of the UNJSPF Regulations was fully compliant with the relevant UNJSPF Regulations. In addition, the Tribunal is requested to uphold the decision of the Standing Committee to confirm that reductions in UNJSPF pension benefits on account of optional lump-sum commutations remain in effect for the lifetime of the UNJSPF retirees concerned.

18. The Applicants’ request had no basis in the UNJSPF Regulations, and the Fund is obliged to strictly follow the Regulations. Any deviation would first require a change to the Regulations and those proposals are to be channelled through the Pension Board to the UN General Assembly. The Respondent respectfully requests that the application be rejected in its entirety.

Respectfully submitted,

Date: 28 October 2009

__________________________

Bernard Cochemé

Chief Executive Officer, UNJSPF

The 2009 Legatum Prosperity Index

The 2009 Legatum Prosperity Index
(click above for a wealth of infn)

A most interesting report. Take a good look and try and review the key findings how each of the countries finds itself in relation to chosen other(s)! As you compare yours with several others, this can explain some of our background problems.

Happily, India is ranked (45) far above China (75)! You know why, Indians seem more prosperous "spiritually"!

Have a nice Day! Enjoy!

Akshya Trust

Akshya Trust
(Click here if you wish to participate in mitigating one of the worst forms of human sufferings -
mentally deranged)

Of all human pains and sufferings, the most cruel would probably be to suffer from "mental illness", not being aware of oneself, one's conditions and life situation (as you see being described in the above website).

The real life heros are those who are prepared to spare some part of their time, efforts and resources, like what Krishnan of Madurai has been doing here, out of human compassion and kindness for the sake of these people, who are disowned by the society and dispossesed by the cruel acts of institutionalised governance and justice system of this great democracy.

As UN Pensioners your kindness and great compassion could help such worthwhile causes to help a helpless fellow human being, to live and pass away in grace and dignity. (By visiting the "Akshya Trust" site, you can have all details). God Bless the helping soul.

OM Shanthi

Overview of the UN Global Compact

Overview of the UN Global Compact
(Please click and open to find the details)

Notes:

Among several worthwhile UN initiatives, this may be one of the useful and beneficial to all (at least for most) world citizens.

As long as we "live" in a human frame, we cannot avoid working for livelihood, even just to be alive. To be alive means to be interacting with others, both sentinal and non-sentinal beings. If we can do this with a conscious awareness of the innate cosmic order, then there could probably be less of a need for conflict in understanding global issues, and greater mutual respect, understanding and accommodation in finding solutions beneficial to all, incl for the planet that is our only home!

Please get involved with your contribution, even your healthy mental vibrations would help.

Jai Ho!

UNPensionerIndia

Anticorruption and Integrity: ADB fighting fraud and corruption in Asia and the Pacific - ADB.org

Anticorruption and Integrity: ADB fighting fraud and corruption in Asia and the Pacific - ADB.org

Notes:

If there is one single problem that saps human progress and development, that can only be this "learned" disease called "corruption and fraud", normally infect combined with "AIG" parasite (Arrogance, Incompetence and Greed).

Our science has advanced over years to prevent, fight and eliminate many of physical/mental/emotional diseases and illnesses that survive because of external sources and environment. There are all kinds of medicines, therapies, exercises, etc. to help mankind.

However, when it comes to "corruption and fraud", no medicine or therapy could help, because it is in-born side-kick with our unique human endowment called desire + freedom of choice. In order to cure this difficult/dangerous illness, there is only one solution:
right-upbringing and right value-based education, that help bring about an equilibrium in our mental faculty to challenge and possibly overcome "likes and dislikes" and its (mind's) ability to see

"me" in "you" and "you" in "me".

Fortunately, it is a kind of "new skill" that can also be learnt and imbued willingly and make human beings capable of sensing life fulfilment

by being corruption/fraud free!

Anyway, please enjoy learning what the Asian Development Bank is trying to do bring about human governance based on individual integrity.

Jai Ho!

United Nations Global Issues - Home

United Nations Global Issues - Home

www.un.org/en/globalissues/index.shtml
Notes:

Needless to be said, there are a number of global issues on which the experience and wisdom of UN retirees could make valuble contribution.

Aside from physical and financial aspects, these esteemed retiree groups, rich in collective experience, can think of out-of-box and creative solutions to problems facing humanity today.

It is time UN establishes an institutionalised arrangement to tap into those resources. Such avenues will be a win-win situtation; a sense of fulfilment for the UN retirees and a wealth of creative ideas for action to UN at no cost or least costly. Let the UN bureaucracy be creative and open for ways to make this planet a better place to live and pass.

OM Shanthi!

A SUBMISSION TO UNJUSTICE FRONTPAGERS

IN REGARD TO COMMON CAUSE APPEAL TO UNAT

CASE # 2009-001

(S. P. Sundaram – 30 September 2009)

(Note: Sometime ago, Mr Merrill Cassell (former Budget Director of UNICEF) raised some queries questioning the validity of the common cause appeal asking for the restoration of full pension for 1/3 lump sum recipients once the lump-sum got recovered by UNJSPF with generous interest over a period of 11+ years. Our Senior citizen/UN retiree, Mr Sundaram, prepared the following note answering his queries, those of some relevance.

No one can deny the right to any individual in taking responsibility for one's life; and change the mindset from victim-hood to become a co-creator of a just and orderly society, incl. UNJSPF setup, fostering human values of caring and sharing).

Thank you for your coverage of our common cause Appeal, in your website, www.unjustice.org. You have done yeoman service in highlighting the various developments in detail, to ensure UN justice does not equate to Injustice.

You have rightly quoted extensively from friend Merrill Cassell and his various assertions, based on mere conjecture and “gut feeling” rather than on hard and incontrovertible facts and figures to substantiate or case histories. Rather sad! I hope you will give me space for dissecting his misleading statements.

Firstly, I have been in some correspondence with Mr. Cassell. He made the same “judgemental statements” which I seriously countered, for which he is yet to answer me direct, point by point, except to close the discussion with “we agree to disagree”; however, he continues to indulge in “blogging”with imaginary people with the same contested (by me) assertions and pontifications! He may have been a very senior official in the UN family (a fact which he never forgets to project), but that doesn’t make him the “fountain of wisdom”. Nor does one prove a point as fact by simply repeating “it must be true because I say so” I would (as you would, no doubt, too) need actual – not manufactured -- facts and figures from Mr Cassell, especially, from a former Budget Director.

He makes a general statement that the restoration of full pension will not be “financially prudent, ethical or fair”. Come, come, Mr. Cassell, where are the facts? I daresay the facts would prove otherwise. Neither he, nor the CEO of the Pension Fund, whom I had challenged to lay bare all the facts relating to the lump sum operation have come forward except to repeat, parrot-like, the same false assertions and irrelevant sources in support.

Take the “not financially prudent” argument. Firstly, there is a document in the UNJSPF records – I have seen it – in which the Fund’s own actuaries, in one of their reviews had stated that the lump sum is fully recovered in 13 years, after which the beneficiaries may be entitled to full pension. If the document exists (and not destroyed) no one dares produce it except being in a state of total denial. If the actuarial review is correct (who will call them to give evidence and spill the beans?), what the actuaries say demolishes the argument “not financially prudent”. Yes, the actuaries who assessed the level of contributions, the level of benefits, the amount of the lump sum and the amount of deductions needed, supposedly correctly, can’t be wrong in this single instance.

Furthermore, many Governments, mainly former British colonies, have instituted some sort of lump sum scheme. India, for instance, has had the system for over 75 years (during and after British Rule) with the automatic restoration of full pension after 15 years. And mind you, India, from the British days, has had a wealth of financial wizards, ace actuaries, legal luminaries and administrative giants (of Mr. Cassell’s ilk, some of whom have since adorned the high offices in the UN and other international bodies) and what they had designed had stood the test of time and the scheme has been financially stable, viable and workable even to the present day. And mind you, India has had one of the highest increases in the life expectancy which could have upset all actuarial calculations. What better proof you need to totally discredit the spurious theory of Mr. Cassell et al? To argue that UN Pension Fund is not like other national pension schemes (like the Indian model), but is a different animal, is too frivolous to consider. Furthermore., there is the Noblemaire Principle, the guiding philosophy being that UN staff (naturally, including retirees) terms must be modelled on the best among the national civil services. If the Indian pension scheme’s terms are among the best on offer (there may be others which may even be better), UNJSPF should at least match that, viz., restore the full pension after 15 years.

As regards the “not ethical” stand of Mr. Cassell, what kind of ethics are we talking about? The ethics of the UN Pension Fund’s implementation of a policy which is nowhere sanctioned by any of the Fund’s own Rules, or which is in violation of its own “recovery of indebtedness” Rule? Or the ethics of the Fund set up for the benefit of UN Retirees, making money on the backs of some of the beneficiaries? Or the ethics of withholding of vital information on the Actuarial Tables (and actuarial recommendations) governing the commutation of pensions? Or again, the ethics of the Standing Committee of the Pension Board not calling the Appellant to be present at the hearing of the Appeal, or even considering the various points made in the Appeal, or the Committee’s decision based on their citation of Rules which have no relevance to the issue whatsoever?

So much for ethics. As far as the “fairness” issue, it may be relevant to consider that CAFICS (Canadian Association of Former International Civil Servants) set up a Committee of 7 former Senior officials to study in-depth the proposal for the restitution of full pension. One of its findings was that the lump sum option was grossly unfair and that “they would not recommend to anyone to avail of the option” That is a telling statement on the “fairness” of the scheme and its operation! Again, the unfair discrimination between the beneficiaries, the ones who took the lump sum and those (the majority) who didn’t. Some fairness, that is.

It may not be totally irrelevant to compare the pension schemes with life insurance policies, although they are operated totally differently. There are some similarities in the operation of the lump sum and the insured amount.. Both are governed by actuarial calculations of life expectancy. In the former case, the money is paid up front and recovery made in instalments (deductions), while in the latter, premium is collected towards the payment of a “lump sum” at death. It is significant that a Canadian Court ruled that continued collection of premium, in excess of the total amount insured for, is “unconscionable”. Wouldn’t therefore the continued deduction of benefit beyond the date of full recovery of the lump sum be similarly unfair?

Mr. Cassell says that “by offering ‘B’ to anyone opting for ‘A’ would be unfair to those who chose ‘B’”. ‘A” took the lump sum – not a gift, but a kind of debt – and went on re- paying it (with generous interest) in instalments through deductions. When the “debt” is fully repaid, ‘A’ and ‘B’ are on the same footing, able to enjoy their full pension. Where is the unfairness, unless it is in ‘B’’s mind, or ‘B’ doesn’t want to get down from the manger to enable ‘A’ to enjoy equal rights and benefits.

The argument that those who took the lump sum to make a killing through investments, a red herring, is not borne by facts. The majority of retirees, as everyone knows, did not, repeat not, avail of the lump sum. Were they stupid to forego the wealth from this goldmine? Obviously not, and one has to conclude that there was no incentive opportunity to invest. Also a survey done sometime ago of those who took the lump sum showed that they mostly took the lump sum to meet some pressing needs at the time of their retirement, relocation and life re-adjustment. So, once again Mr. Cassell has got all his facts wrong.

There are many other canards that Mr. Cassell and his likes have let out and all these balloons can be burst with reasonable and logical answers.

I hope Mr. Cassell will do us all a favour by also publishing, in his blog, the various arguments against his pet theories, for all to make their own judgement.

With many thanks for your forbearance,

(Sandy Sundaram)

*********

END

Addendum to Common Cause Appeal to UNAT - Case # 2009-001

ADDENDUM TO THE UNAT COMMON CAUSE APPEAL SIGNED/SUBMITTED

ON 27 AUGUST 2009 BY M/S SUNDARAM, MUTHUSWAMI & SRINIVASAN

UNAT CASE # 2009-001

****

SHOULD BE READ IN CONJUCTION WITH

SECTION IV. LEGAL BASIS/ARGUMENT , OF THE ORIGINAL COMMON CAUSE APPEAL

Para 29.A – “Noblemaire Principle”

The pay and emoluments as well as service conditions of the serving staff of the UN family are, among other things, governed by the noble Noblemaire Principle, viz., matching or even surpassing the best conditions offered to staff among the civil services of the Governments of the Member States.

29.b Retired staff, as the UN Secretary General, proudly proclaimed thus -----

“TO US YOU ARE FORMER INTERNATIONAL CIVIL SERVANTS ON PAPER ONLY; IN PRACTICE YOU REMAIN VALUED MEMBERS OF THE UNITED NATIONS FAMILY.”

Further on, he added:

“ACCUMULATED WISDOM, INSTITUTIONAL MEMORY OF FORMER INTERNATIONAL CIVIL SERVANTS COMPLEMENT DEDICATION OF TODAY'S UNITED NATIONS STAFF.”

and they are, thus the extension of the currently serving staff and hence the Rules and Terms that applied during their tenure of services with the UN, should logically be extended to their period of retirement. In short, the Noblemaire Principle (or any other service conditions) that were applicable before their retirement should also prevail. We don't suddenly get disjointed.

29.c As we all know, some of the National Civil Service Pension Schemes limit the period of commutation to a fixed duration, for those who took the lump sum option, after which their full pension was automatically restored. If the best of the Government Pension Schemes allow for the restitution of the full pension after a period of (actuarially determined) years. these terms should also govern the Rules and Implementation of the UN Pension, according to the coveted Noblemaire Principle. It is not logical or reasonable to argue that UNJSPF is different from national Pension Schemes. While the level or calculation of our pensions may not be the same in every case, the UNMISTAKABLE FACT is that the lump sum practice is identical in all cases. We are here talking only about the lump sum operation and with the application of the Noblemaire Principle, the best terms offered by any of the Governments, should be applied.

29.d Hence, our Appeal includes this additional argument: "Don't discriminate between present and former UN staff but treat both categories the same in respect of policy and implementation, governed by the Noblemaire Principle (or any other Terms and Conditions) applicable."

END OF ADDENDUM

SIGNED: S.P. SUNDARAM (R#28009) ----------------------------------------
(signed by the following signatory as requested by Mr Sundaram who is not in Chennai & unwell)


V.MUTHUSWAMI (R#63374) (Signed)



G.S. SRINIVASAN (R#66715) (Signed)


Chennai, India : 30 September 2009 (Also Notarised & RECD AT UNAT)

Common Cause Appeal to UNAT - Case # 2009-001

BEFORE THE UNITED NATIONS APPEALS TRIBUNAL

COMMON CAUSE APPEAL FILED BY

S.P. SUNDARAM (R/28009), V.MUTHUSWAMI (R/63374) & G.S. SRINIVASAN (R/66715)

(SIGNATURES AND ADDRESSES INCL. CERTIFICATION ARE GIVEN AT THE END OF THIS DOCUMENT)

ON THEIR OWN BEHALF AND ALSO ON BEHALF OF OTHER RETIREES WHO

FILED EARLIER APPEALS SUBMITTED TO THE UNJSPB STANDING COMMITTEE

(and whose decision was conveyed in CEO/UNJSPF letter of 20 July 2009)

APPLICANTS/APPALLENTS

UNITED NATIONS JOINT STAFF PENSION BOARD

RESPONDENT

(CHOICE OF COUNSEL(S) TO BE DETERMINED and NOTIFIED TO UNAT, AS NECESSARY, INCL ORAL HEARING(S) IN THE PRESENCE OF APPELLANT(S) REPRESENTING THE COMMON CAUSE)

THIS APPLICATION SUBMITTED TO THE HONOURABLE

UN APPEALS TRIBUNAL

TO APPEAL AGAINST THE DECISION OF CEO/UNJSPF

CONVEYED IN HIS LETTER OF 20 JULY 2009

Message of this application:

“Water the root and enjoy the fruit” - Maharishi Mahesh Yogi

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I. INFORMATION CONCERNING THE STATUS OF THE APPLICANTS:
II. INTRODUCTION
III. STATEMENT OF OUR PLEA/APPEAL INCL EXPLANATION
IV. LEGAL BASIS/ARGUMENT, incl. REQUEST FOR ORAL HEARING(S)
V. CONCLUSION
VI. ANNEXES I, II & III attached

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I. INFORMATION CONCERNING THE STATUS OF THE APPLICANTS/APPALLENTS AND REASON FOR MAKING THIS COMMON CAUSE APPEAL:

1. The appellants (S.P. Sundaram, V. Muthuswami and G.S. Srinivasan) are all UN retirees living in India and leading useful life-styles befitting the organisation’s humanitarian goals with which they were privileged to be associated with in their long working-life. This team also represent a number of UN retirees who had earlier submitted in May/June 2009 similarly worded appeals to the UNJSPB Standing Committee (see Annexe 1).

2. Briefly stated, these retirees are concerned with and aggrieved by the lack of transparency, equity, fairness and natural justice in the manner in which UNJSPF has been treating the retirees – especially those who had opted for partial (1/3) lump sum commutation and reduced pension as opposed to regular pensioners. In response to recent appeals by many pensioners, UNJSPF/CEO decreed unjustly that the reduced pension should remain for “life time” though the lump sum gets recovered fully with sumptuous interest over a time period of 11-13 years. Neither explanation, nor any justification for the decision was offered, excepting for quoting the same articles 1(f) and 28(g) of UNJSPF Regulations that were earlier questioned in regard to their import and philosophy in the context of equal rights guaranteed by UDHR.

3. In the absence of any written contract/agreement between the two parties – UNJSPF and the retirees – in respect to life-time reduced pension, the denial to restore full pension even after the full recovery of lump sum + interest over years should be seen untenable, as this amounts to denial of equal rights and principle of equity as envisaged by the Universal Declaration of Human Rights (UDHR).

II. INTRODUCTION

4. Many civilized/enlightened civil service pension systems consider the “pension” as deferred salary payments and valuable right in recognition of long years of devoted loyal service to the sovereign state. All the three branches of governance – legislative, executive and judiciary – have all recognised the importance of a well-developed civil service pension as sine qua non for ensuring an independent, efficient, effective, viable and continuing loyal civil service for good governance. Duties, rights and privileges of such civil service employees and retirees are protected by suitable laws of the country.

5. It is a common feature of any enlightened pension system to include the facility of commutation of a part of the pension into lump sum on retirement in order to overcome the sudden loss of regular monthly income and to facilitate into settling in retirement without any problem. Also, it is common that reduced monthly pension (after commutation) gets restored after a pre-determined period within which the commuted lump sum stands recovered with whatever nominal interest rate applicable as per the system.

6. Important to remember that not only is the international (UN) civil service (even after retirement) excluded from any national legal system, but also by being restricted from access to national courts to seek legal remedy. Additionally, the staff (and retirees) of international organizations comprise of people from various backgrounds, cultural and traditional systems and domestic legal systems, and all respect fundamental human values to equity, equality, fairness, and justice.

7. Such a situation makes it imperative for the international organizations to establish and maintain a well-balanced system of justice to avoid discrimination, inequity and unfairness in the treatment of issues concerning staff and retirees.

8. UN in its wisdom declared that the right to human development rests on the importance and application of the principle of equity, fairness and natural justice at both the national and international levels (see UN Charter, UDHR, UN doc E/CN.4/2003/25 on the right to (human) development and related documents on the subject).

9. UN Administrative Tribunals frequently referred to such foundational treaties, declarations and conventions as UN Charter and Universal Declaration of Human Rights as sources of law. Another source of law is the general principles of law comprising not just the general principles of administrative laws and rules of the member states but also the case laws and decisions of international tribunals.

10. By implication, not only UN urge states to comply with the internationally recognised standards of justice, such as due process and fundamental human rights, equity, fairness and natural justice, but the UN organization should also adhere to these standards within its own legislative, judicial and administrative systems.

11. It is therefore imperative that the regulations, rules and procedures of UN and family organisations, incl. UNJSPF should be in full accord with and in harmony with the UDHR and UN Charter. In other words, UN and its family organisations should remain models of good governance for all member states to emulate and build a sustainable human development matrix.

III. STATEMENT OF OUR PLEA/APPEAL INCL EXPLANATION

12. General areas of concern:

12.1 Ensure that the UNJSPF’s regulations, rules, and procedures are consistent with and harmonious to the fundamentals of UN charter and Universal Declaration of Human Rights. Review and remove all inconsistencies, convoluted wordings, and self-contradictions in the UNJSPF regulations etc. which can only breed unilateralism and arbitrariness in its handling of pensioners’ affairs. For example, the UNJSPF regulation article 1(f) and 28(g), read in conjunction with the article 43, cannot be construed/interpreted as life-time enforcement of reduced pension for 1/3 lump-sum recipients.

12.2 UNJSPF should become more client-friendly in dealing with retirees, signified by transparency and accountability and respectful of UDHR’s “right to information”. For example, UNJSPF could make information readily available thru its website on the fiduciary tables, and fiduciary recommendations, including those recommendations not accepted by the UNJSPB and reasons for such non-acceptance. Most national pension schemes like Indian (Federal and State) Governments Civil Pension Fund publish commutation tables and allied documents, including updates. on the public domain web sites.

12.3 In this broadband internet age, it should be easy to be honest, transparent and accountable. As such, the new age growing technology and inter-active websites should be employed to serve pensioners and beneficiaries effectively. For example, by introducing suitably designed e-governance system the participants/pensioners/beneficiaries should be able to contact and get answers/resolution of issues in a cost-effective manner, and should be able to review their own files for completeness or any requirement for submitting additional information.

13. Specific pleas/appeals for redress:

We find that the decision of the Standing Committee of the Pension Board was based on a cursory and incomplete consideration of our Appeal and is therefore unsatisfactory. Our contention is based on the following:

13.1 There is no, repeat no, Rule or clause in the UNJSPF Regulations categorically stating, even by implication, that the lump sum option binds the beneficiary to a deduction for life. There is, therefore, no justification for any contrary interpretation and/or practice.

13.2 The definition of "commutation" (Article 1f) also does not make such a definite statement. Furthermore, the qualification, "in accordance with the Actuarial Tables", we believe, also does not sanction the UNJSPF’s current practice of life-time enforcement of reduced pension. We would like to see what the Actuarial Tables actually says, and how it could be interpreted to mean that the commutation would be for life.

13.3 The undertaking signed by the beneficiary at the tense time of retirement is no legal contract or agreement in that it is merely an information sheet/instruction for payment (UNJSPF Form E/7) not signed by BOTH the parties in the presence of witnesses. Furthermore, the explanatory note under A(3) of the same form (Form E/7) contains factual misrepresentation, for example, quoting articles 28(d) and 28(e) which have no connection whatsoever and therefore, irrelevant.

13.4 There is no rationale behind the exclusion of the lump sum as a form of indebtedness. In point of fact and legal basis the Article 43 of UNJSPF Regulation should be applied, in letter and spirit, for the recovery of the lump sum as well – up to the amount of indebtedness, and no more.

13.5 Commutation of the pension is limited to a certain number of years in almost all National Civil Service Pension Schemes and UNJSPF policies and practices should also conform to such normal universal practice.

13.6 It is also significant that whereas most of the Regulations of UNJSPF have been amended over the years, to take account of changed circumstances, the lump sum provision and practices alone have remained constant, despite vastly changed circumstances like life expectancy, impacting on the calculation of lump sum commutation, review towards recovery amount and period of recovery. This practice is neither consistent nor fair. On the basis of such a periodic review, amounts of lump sum would have to be recalculated (upwards) and/or the level of deduction would have to be revised (lowered).

13.7 The continuation of the deductions beyond the full recovery of the lump sum (with interest and charges) creates two kinds of unequal beneficiaries - the ones who took the lump sum and the ones who didn't. This will amount to discrimination and would violate the Articles of the Universal Declaration of Human Rights and UN Charter specifically according equity, fairness and justice. Furthermore, the UNJSPF practices can also be proved as perpetrating non-compliance of other aspects of Human Rights.

13.8 The refusal of our plea purely on economic grounds would be improper as well, since this is a matter of fairness and justice, of equity and ethics and requires utmost precedence and significance towards establishing a system of fair and equitable social justice.

13.9 On condition of acknowledging fairness, equity and justice, it is still possible to strive for any suitable solution to ensure aspects of economic viability and long term sustainability of the UN Pension system. We are indeed open for dialogue and mutually beneficial arrangements.

IV. LEGAL BASIS/ARGUMENT, incl. REQUEST FOR ORAL HEARING(S), IF NECESSARY:

14. According to the ancient eastern traditional wisdom, “neeti” and “nyaya” (justice and fairness) are two sides of the same coin and they need to be reflecting harmony and coherence to ensure social realization of what is seen as a just institutional-arrangement to implement justice based on equity and fairness. The greatest injustice is when people cannot achieve their just goals because someone else with authority (e.g. UNJSPF et al) stops them.

15. Simply said, our legal basis and argument for the pleas explained above is nothing other than the foundational principles on which UN and its family of organisations should exist, function and sustain, viz. UN Charter and Universal Declaration of Human Rights (UDHR). The independent regulations, rules and procedures of each of the family organisations should not be ultra vires to those fundamental constitutional statutes (viz. UN Charter and UDHR).

16. The fact that such gross violations were allowed for decades of UN life should say something of its internal justice system, which, we pray and hope, the revitalised new avatar UN Appeals Tribunal will soon redress, and stop the delay and denial of natural justice.

17. UNJSPF financial infrastructure is based on mandated contributions from staff and double that amount from the employer organisations, to be prudently invested and managed in such a manner as to provide a well-defined pension benefits to the retirees during their life time and also those identified as beneficiaries like the surviving spouses, minor/disabled children, etc. By refusing to restore full pension to the 1/3 lump sum recipients/beneficiaries, when eligible, not only the beneficiaries are denied the rights but the employer organizations are in a sense “short-changed”.

18. While the benefits to the legally accepted beneficiaries are well-defined and represent a logical sense of equity and fairness, the retiree benefits do not manifest any sense of equity and fairness, especially for those of 1/3 lump sum recipients after full reimbursement to the UNJSPF of such lump sums plus generous interests over a period of time (eleven years or so). Refusal to restore full pension after the full recovery + interest on lump sums amounts to non-compliance of principles of laws concerning equity and fairness under any legal system.

19. Your kind attention is invited to the joint common cause appeal submitted earlier to the Standing Committee of the UNJSPB (Annex I), wherein we have noted how different articles of UDHR for basic fundamental rights – viz. Equity, equality, fairness and justice – appear to be not being applied by the UNJSPF in the treatment of some of the UN pensioners (viz. 1/3 lump sum recipients).

20. The two annexes attached to the appeal to the UNJSPB Standing Committee (supporting document as Annexe 1 for this appeal) indicate how the 1/3 lump-sum paid to those retirees get recovered over the period of 11 or about years.

21. It is sincerely believed that UNJSPF does not intend to punish the retirees who happen to enjoy good health and long life beyond the anticipated fiduciary age of life expectancy.

22. As said earlier, the UNJSPF regulations, rules and procedures, specifically relating to the pleas contained in this appeal, in our humble opinion, are so flawed and dysfunctional as to allow all kinds interpretations, much of those UNJSPF interpretations remain subjective and contrary to natural justice.

23. In fact, the co-joined articles/rules 1(f) and 28(g) on commuted pension payments read in conjunction with article 43 – recovery of indebtedness to the fund – should imply that the lump-sum payments (as commuted pension) is to be regarded as a calculated risk-based loan or advance payment to the retiree, recoverable with interest (more than average market rate) thru monthly deductions by way of reduced pension. Corollary to this situation, based on equity and fairness, full pension should be restored once lump sum plus generous interest becomes fully recovered/reimbursed to the UNJSPB.

24. Denial of full-pension for life-time can never be justified in the name of equity and fairness, except to say that UNJSPF does not expect its pensioners to live beyond the age of life expectancy of its fiduciary experts. Longer the 1/3 lump sum recipients live better are the returns on UNJSPF’s investments by way of reduced pension to those retirees for life, to which the UNJSPF is not legally or morally entitled beyond the true actuarial period used for commutation of the initial lump sum.

25. It is common practice with UNJSPF, its fiduciary findings and recommendations, including final decisions that affect the life of pensioners are never made available in the public domain – this is again contrary to the requirement of a responsible organisation based on accountability and transparency. In the absence of such openness and transparency, those who took the 1/3 lump sum are forced to sign an undertaking (not a contractual obligation) with facts held back. The suggestion to consult with Staff Pension Committee will only be leading the blind by the blind. We feel that UNJSPF is the sole body that should clear all doubts and clarify any concerns.

26. In fact, our specific pleas can be seen as “remediable injustices” which can be eliminated easily provided we ensure genuine democracy in the UNJSPF bureaucracy.

27. Around the world, especially in the largest democracy of the world representing one-sixth of humanity (India), lump-sum commutation and restoration of full pension after 15 years has long been in vogue and fully endorsed by the highest court of justice in that country (Supreme Court of the Republic of India – Judgement given on 9 December 1986 on common cause writ petition # 3958-61 of 1983). As full details of this judgement are freely available in the public domain websites of the Indian Supreme Court and Indian Government, it is not our intention to tire the UN Appeal Judges and save time and information/paper overload. It is our understanding that India is not alone in this regard.

28. Assuming that the acceptance of the restoration of full pension for lump sum recipients after an agreed period, in the context of increasing longevity of pensioners, may cause fiduciary imbalance as per present methods, this situation can be expertly reviewed and remedied; and necessary new formulas can be established thereby all pensioners – lump-sum recipients, full pensioners, et al – can be provided benefits that become hallmark of equity and fairness.

29. Arguments that such lump-sum recipients had the undue advantage of investing large funds for huge profits, etc. (in the western style) are simply not proven by facts; based on our own understanding and broad based survey of pensioners, it was revealed that the pensioners were in fact lured into lump-sum option inter alia for the following compelling and compassionate reasons:

• To offset sudden loss of regular income upon retirement and the anxiety for repartition and resettlement of a life befitting a UN staff with core values intact even in retirement;

• To defray cost of expensive medical treatments, long postponed; to build a living place; to marry off grown up children;

• Anxiety of growing old to meet all family commitments before the final hour arrives.

• Fear of any instability in the UN pension system, despite the fact that UNJSPF is known for sound financial management within UN family.

• Some of the retirees being aware of the normal feature of many enlightened civil service pension systems were of the view that the commutation of a part of pension as lump sum + reduced monthly pension, will eventually be followed by restoration of full pension once the commuted lump sum + interest got fully recovered.

REQUEST FOR ORAL HEARING(S):

30. As can be seen from the appeal, we have raised a number of constitutional questions as to why the UN agencies’ independent regulations, rules and procedures should NOT be inconsistent with the fundamentals of the UN organisation. In our humble opinion, it will be necessary to understand the depth and import of such “essentials” and such a situation would be better felt/explained thru oral hearing(s). It is also our understanding that the appellants do have the right to bring in outside legal advice/counsel to better present our case.

V. CONCLUSION

31. In celebrating the Human Rights Day (20 December 2008), the UN Secretary General declared that “we can only honour the towering vision of that inspiring document (UDHR) when its principles are fully applied everywhere for everyone”.

32. The sacred need and responsibility of UN and its associated agencies/organizations to abide by and operate in accordance with the fundamental principles enshrined in the UN Charter and the Universal Declaration of Human Rights cannot be over-stated. Their legislative, executive, judiciary and administrative bodies should not only be influenced by those fundamental principles, but their day-to-day functioning should remain as role models for good governance for the rest of the world governments.

33. Reposing our faith in the letter and spirit of those great practical principles, we look to the UN Appeals Tribunal to uphold those values and declare its decision reflecting the removal/elimination of the “remediable injustice” done to the 1/3 lump-sum recipients of UN pensioners by restoring full pension after the lump sum PLUS generous interest have been fully recovered.

VI. SUPPORTING DOCUMENTS AS ANNEXES:

(i) Copy of Common appeal/request submitted (individually) during May/June 2009 to the Standing Committee to the UNJSPB for the restoration of full pension for the one-third lump sum recipients after a pre-determined period of commutation.

(ii) Letter from CEO/UNJSPF of 20 July 2009 stating there should be no change in the reduced pension for life time in the case of 1/3 lump sum recipients.

(iii) Information sheet on the appellants of this appeal in response to the requirements stated in the UNAT rules.

(iv) Respecting technology and environmental impact, and especially our faith on the wisdom of UNAT jurisprudence, we do not attach too many documents, but seek indulgence of careful attention to the Indian Government’s pensioners' portal (http://pensionersportal.gov.in) and Indian Supreme Court judgement of 9 December 1986 on the Common Cause Appeal writ petition # 3958-61 of 1983.


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ABBREVIATIONS USED IN THIS APPEAL

UN United Nations Organisation
UNJSPF United Nations Joint Staff Pension Fund
UNJSPB United Nations Joint Staff Pension Board
UDHR Universal Declaration of Human Rights
UNAT United Nations Appeals Tribunal
UNC United Nations Charter

SIGNATURES OF APPELLANTS AND RETIREE #, year of retirement, incl ADDRESSES:
(original hard copy documents signed by all three signatories)

S.P. Sundaram V.Muthuswami G.S. Srinivasan
R/28009 (1983) R/63374 (1997) R/66715 (1998)

Signed at Bangalore/Chennai, India,

on: 27 August 2009


Certification of Indian Govt. Notary Official: (Done in hard copy)

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