| In its article "UN antifraud team is in jeopardy of losing its funding" dated 9 October 20071, the Asian Wall Street Journal suggests that the future of the Procurement Task Force (PTF) is in doubt as a result of "pressure from at least one influential member, Singapore, to shut it down". The article suggests that Singapore's motivation is unhappiness with the treatment by the UN of one of its "diplomats", Mr Andrew Toh. | |
This allegation is untrue. Singapore has never condoned fraud or corruption. Singapore's clean government has been attested to by many international surveys. We have consistently supported strong internal controls and an administration of justice system at the UN, predicated on fairness and accountability. But these principles cannot be applied selectively. The PTF must also submit itself to the same standards that it seeks to apply to others. Mr. Andrew Toh's case clearly reveals a disturbing pattern of abuse of authority by the PTF. Mr Andrew Toh, mistakenly cited as a Singapore diplomat, is a career UN employee. He was placed on special leave with pay on 16 January 2006 on the basis of a draft report of the UN Office of Internal Oversight Services (OIOS) on UN peacekeeping procurement. The draft report had requested the UN to initiate an investigation into the procurement of helicopters from Peru for a peacekeeping operation in Timor-Leste. Thus began an eleven-month ordeal during which Mr Toh was suspended, but not formally charged with any transgression. During these eleven months, the PTF investigated Mr Toh in detail. Initially, they denied him access to legal counsel, arguing that this investigation was merely administrative and not criminal. When the PTF was unable to find evidence of fraud as alleged by the OIOS procurement report, it expanded the scope of the investigations. Mr Toh was asked to submit all sorts of information, including all transactions in his family exceeding US$10,000 as well as all gifts exceeding US$250 for the previous ten years. After eleven months, Mr Toh was charged on 22 December 2006 with (a) misleading the UN on the lease of two Peruvian helicopters; (b) not properly declaring his financial assets for 2004 and 2005 in the annual disclosure exercise; and (c) non-compliance with the Secretary-General's directive to disclose all his financial information to the PTF. Mr Toh's special leave was converted into suspension with full pay. As per normal procedure, the case was then referred to the UN Joint Disciplinary Committee (JDC). On 4 October 2007, the JDC cleared Mr Toh of any misconduct in his work, including in the Peruvian helicopters case. It found him negligent in the case of the annual financial disclosure for 2004-2005 and suggested that he be reprimanded. The JDC also faulted him for not complying fully with the Secretary-General's directive to disclose all his financial information to the PTF but recommended against going beyond a written censure. The JDC also made the following observations about the lack of fairness and due process in respect of the PTF's handling of the case: a) The Panel expressed "serious concern that no one from the Department of Peacekeeping Operations (DPKO) at a level comparable to Mr. Toh's had been placed on a similar leave pending the PTF investigation". The Panel found this to be "discriminatory considering that the OIOS audit which triggered the PTF investigation and the PTF investigation itself concerned first and foremost DPKO procurement and that DPKO enjoyed at the time a considerable delegation of authority in procurement matters from the Secretary-General." b) The Panel expressed "a grave concern about the fact that Mr. Toh was not interviewed by the OIOS in the course of their audit of DPKO procurement and was not shown the audit draft report for comment (issued on 20 December 2005), although the decisions to create the PTF (12 January 2006) and to place Mr. Toh on special leave with full pay (16 January 2006) appeared to have been made on the basis of the draft audit report rather than its final version, which was issued only on 26 January 2006 and which was shown to Mr. Toh reportedly for ten minutes on 24 January 2006." c) While the Panel concluded that Mr. Toh had neglected to exercise due care in the filing of 2004 and 2005 financial disclosure forms, "it was highly critical of the Administration's conduct with regard to the confidentiality of Mr. Toh's disclosure forms, copies of which have been made available, in the context of various proceedings, to a circle of people that really have no business becoming privy Mr. Toh's financial status." d) While Mr. Toh admitted to ultimately being able to obtain legal advice, the fact remained that he was not allowed to have his designated Counsel present during the interviews with the PTF. The Panel "viewed PTF's refusal as a violation of Mr. Toh's due process rights during the preliminary investigation." The Panel "also considered the absence of Mr. Toh's counsel at his interviews a serious matter because in the course of the PTF investigation Mr. Toh was considered and treated by the investigators as a suspect." In addition, the Panel found that "all this time during the PTF investigation, the Administration kept on giving to Mr. Toh assurances that the investigation did not concern his personal conduct and performance, a disingenuous and inappropriate statement." In this regard, the Panel recalled that the United Nations Administrative Tribunal (UNAT) had reconfirmed its position, as stated in an earlier case, that it could not "accept that investigations ... be conducted without rules and guarantees of due process and without giving due respect to inalienable rights proclaimed by the Organization itself in the Declaration on Human Rights". The Panel noted that the PTF had shown no respect for Mr Toh's "due process" rights as a suspect. e) The Panel recommended that OIOS and the UN should review its rules on preliminary and fact-finding investigations and "bring them in line with the judgements of the United Nations Administrative Tribunal and the existing international instruments on human rights." Separately, in February 2006, Mr. Toh attempted to file a complaint against his immediate supervisor, Mr. Christopher Burnham, the former UN Under Secretary-General for Management, for discrimination, harassment, intimidation and denial of due process to the UN's Management Performance Board (MPB). The MPB was established principally to review the behaviour and performance of senior managers. However, despite the fact that the Ethics Office had deemed that the MPB was an appropriate forum, the former Deputy Secretary-General refused to accept Mr. Toh's complaint. Mr. Toh then filed an appeal to the UN's Panel on Discrimination and Other Grievances (PDOG), a judicial entity established by the Administration. In July 2007, the PDOG unanimously concluded that Mr. Toh was "unfairly humiliated" and that "his due process rights, his integrity and dignity were violated". The PDOG found Mr. Burnham guilty of harassment, discrimination, intimidation and abuse of authority. The PDOG was also "dismayed that a staff person who had served the UN well since 1980, with a good reputation and for being an efficient and respected manager, was treated in a manner that was disrespectful of his dignity". The PDOG recommended that Mr Toh be "immediately reinstated to his position as an Assistant Secretary-General", that he be "given an apology" and "provided with appropriate compensation for psychological suffering and for violation of his rights as a UN staff member." To date, the UN's senior management has not responded to the PDOG's findings and recommendations. Having failed to obtain redress from the UN, Mr. Toh recently asked the current Secretary-General to lift Mr Burnham's immunity so that he could be sued for damages in a civil court. Mr Toh is awaiting a response. The PDOG report was submitted to the UN on 30 July 2007. The PDOG's recommendations state that Mr. Toh was discriminated against by his previous supervisor and denied due process by the UN. The JDC report was submitted on 14 August 2007. The JDC recommended reprimand and censure. A decision based on these two reports would be relatively clear. However, we understand that several holdovers from the previous UN Administration are pushing for more severe punishment so as to justify the spurious allegations against Mr Toh and the improper manner in which the investigations were conducted. The PTF speaks about fairness, accountability and transparency. Obviously, UN staff should abide by these principles. But the PTF cannot be exempt from the same standards. The PTF has clearly fallen short in the Andrew Toh case. Two UN administrative tribunals have stated this unambiguously. Hence, member states have a responsibility to question the PTF on its performance and behaviour and to demand an explanation. It would be unconscionable if there was one set of standards for the PTF and another for those it investigates. After all, the crux of the concept of accountability is that everyone must be accountable, including the PTF. 1 On 8 October 2007, similar articles were carried in the US edition (entitled "UN Antifraud Unit is in Jeopardy - Singapore, a Major Force In Voting Bloc, Seeks to Shut Procurement Watchdog") and European edition (entitled "UN antifraud unit is in jeopardy - Singapore criticizes treatment of one of its diplomats") of the Wall Street Journal. |