WIPO Calls For “A Regular and Fair Procedure, Please”

By André Heitz, director of the WIPO Coordination Office in Brussels

As widely reported on this site, there are strong moves to push Mr. Kamil Idris out of his position of Director General, this against the background of various allegations of wrongdoings and abuse. By requesting the inclusion of an agenda item phrased “WIPO Internal Audit Report Number IAOD/INV/2006/2 of November 2006, and Appropriate Follow-up Thereto”, one member state has clearly paved the way for the WIPO General Assembly to consider the possibility of a unilateral termination.

Matters have now reached a stage where some essentials need recalling so that there is fair and balanced information, which is also a prerequisite for an outcome.

Like any other international civil servant, and indeed any citizen, Mr. Idris is entitled to a regular and fair procedure.

This is such a fundamental principle of law – in fact a fundamental human right – that it need not be backed by any case law. But it so happens that there is case law with the Administrative Tribunal of the International Labour Organisation, which so happens to also have jurisdiction over WIPO.

The relevant judgement is No. 2232, Mr. José Bustani v. Organisation for the Prohibition of Chemical Weapons (OPCW), delivered on 16 July 2003. In short, on 21 March 2002, at the 28th Session of the Executive Council, a State Party (the United States of America) introduced a no-confidence motion, calling for Mr. Bustani to resign as Director-General. The motion failed. A special session of the Conference of the States Parties was subsequently called for by the same State Party and, at its meeting of 22 April 2002, the Conference adopted a decision to terminate the appointment of the Director-General effective immediately.

The Tribunal rejected all OPCW pleas of lack of jurisdiction and irreceivability (with reasons that also apply to WIPO). As regards the merits, the Tribunal held:

“16. In accordance with the established case law of all international administrative tribunals, the Tribunal reaffirms that the independence of international civil servants is an essential guarantee, not only for the civil servants themselves, but also for the proper functioning of international organisations. In the case of heads of organisations, that independence is protected, inter alia, by the fact that they are appointed for a limited term of office. To concede that the authority in which the power of appointment is vested – in this case the Conference of the States Parties of the Organisation – may terminate that appointment in its unfettered discretion, would constitute an unacceptable violation of the principles on which international organisations’ activities are founded (and which are in fact recalled in Article VIII of the Convention, in paragraphs 46 and 47), by rendering officials vulnerable to pressures and to political change. The possibility that a measure of the kind taken against the complainant may, exceptionally, be justified in cases of grave misconduct cannot be excluded, but such a measure, being punitive in nature, could only be taken in full compliance with the principle of due process, following a procedure enabling the individual concerned to defend his or her case effectively before an independent and impartial body. In this instance, the complainant had no procedural guarantee, and given the circumstances of his case, he has good grounds for asserting that the premature termination of his appointment violated the terms of his contract of employment and contravened the general principles of the law of the international civil service.

17. Consequently, the impugned decision must be set aside…”

The Assemblies are not yet over, so it remains to be seen what course it will take and what the final decision will be. However, it is already clear that any decision that would go against Mr. Idris – would be “punitive in nature” as the Tribunal put it – will not meet the requirement of “full compliance with the principle of due process…” and, it should be added, the requirement of full compliance with the applicable statutory provisions.

For one thing, the whole process has been based upon an internal audit report established following a clearly illegal request from the chairperson of the Joint Inspection Unit, Ms. Deborah Wynes (incidentally a US citizen). The request was clearly illegal – to start with basics – because, under Article 5.1 of its statute (the lead provision on its functions, powers and responsibilities), the JIU may well have the “broadest powers of investigation” but those powers are circumscribed to “all matters having a bearing on the efficiency of the services and the proper use of funds”; they certainly do not extend to the production, on its behalf, of reports on allegations pertaining to a single official, be he a Director General, and even less to the production of reports “in order to put the issues to rest, one way or the other”.

And, if we were to accept for the sake of argument that the request was in order, then the unavoidable conclusion is that there was no follow-up to the report in accordance with the JIU Statute (in the form of a report, note or confidential letter – Article 11.1 of the Statute – addressed to the Director General – Article 11.4.a and 5) There was not even an attempt “to put the issues to rest, one way or the other”.

In plain words, we are confronted with an abuse of authority and procedure (incidentally in the same vein as the actions taken in 2005).

The internal report marked ‘confidential’ and remitted to a very small number of people (that included the chairperson of the JIU) was leaked to Fox News and posted on the Internet through an article bylined by a journalist from a specific political persuasion who is not known as having had an interest in WIPO before. The process before the General Assembly, in turn, could only be set in motion following an illegal dissemination of the internal report.

The report is thus a document that cannot have any legal existence and that, in all democracies, cannot be cited in legal proceedings.

Against this background, any discussion of the host of other issues of legality, and hence due process, arising from a most unfortunate initiative of the JIU appears superfluous at this stage. It should be a matter of gravest concern for any citizen of the world to see that, unless corrective action is taken by the General Assembly, an Organisation has been dragged into a debate that would violate the rule of law.

This opinion, no doubt, will not be well received in the quarters seeking or expecting a change in the Organisation’s management that would not result from a sober assessment of the full situation and from a decision that respects all interests at stake. The case law – and indeed the general principles of law – is against them. The ILOAT case law is crystal clear on this: whatever the merits, a case cannot be heard save on the basis of a regular and fair procedure. And, given the current state of affairs, such a procedure seems difficult to afford now. Bad luck also, for those who would like to enjoy a long moment of Schadenfreude (delight in another person’s misfortune).

This subject should not be closed without a comment on the “brief note on allegations against the Organization and its Director General” (A/43/INF/8). It is understandable, but nevertheless regrettable, that the “enough is enough” message has gone somewhat over board, particularly as regards our colleague who was at the time in the difficult position of Senior Internal Auditor and Acting Director of the Internal Audit and Oversight Division. To our knowledge, he acted all along in good faith, under the obligation put to him by Article 6.2 of the Statute of the JIU, in accordance with the prevailing reading of the WIPO Audit Charter and in full transparency vis-à-vis the Organisation and the Director General.

The above comment, however, does not remove much of the Organisation’s grave concerns. Those concerns pertain not only to the treatment inflicted on one person, but also and much more, to the essential guarantees that must be afforded to the international civil servants, “not only for the civil servants themselves, but also for the proper functioning of international organisations”.

It so happens that “WIPO Internal Audit Report Number IAOD/INV/2006/2 of November 2006, and Appropriate Follow-up Thereto” is a formulation that allows the competent bodies to look at the broader picture, to take stock of the complexity of the current state of affairs, and to decide on this basis; and also to consider measures to prevent the repetition of violations of essential guarantees.

And let us go back to what the Tribunal said in this and many other cases: such measures are in the interest of the international civil servants – that includes the Director General (and myself) – and in the interest of the proper functioning of our Organisation.

André Heitz is the director of the WIPO Coordination Office in Brussels. He joined UPOV in 1975 and moved to WIPO in 2000. He served as the President of the WIPO Staff Association from 1984 to 1991. He boasts a long involvement in staff representation and defence activities in WIPO and also with the Federation of International Civil Servants’ Associations (FICSA), particularly in the legal field and, from 2000 to 2002, as its General Secretary (on full time release from WIPO). He provides pro bono assistance before the Administrative Tribunal of the International Labour Organisation and, exceptionally, the United Nations Administrative Tribunal.

He has no privileged relationship with the Director General, nor anything to expect from him. His sole interest in writing this piece, in a strictly personal capacity, is to contribute to a better understanding of the broader issues, and to ensure that there is a regular and fair procedure for all.