[governance] Preliminary results of consensus call on IGC

[Paul Lehto]

Below are the relevant voting and membership provisions of the Charter
as I see them.  I've included a few interpretive comments in square
bracketed paragraphs below the provisions labeled "CHARTER" which are
the Charter text itself wherever quotes are used.

However, first, I would note in response to Parminder's email below
that if "practice" becomes "precedent" in any way actually capable of
informing or altering the meaning of the Charter itself, then a
continuing violation of the Charter's provisions is what the Charter
actually *requires* per the "precedent." It then follows that unless a
violation of the Charter is caught and corrected the first time it
happens, it becomes "precedent" and operates as a de facto amendment
of the charter, even though the Charter requirement of a 2/3 vote of
the members and other Charter procedures for amending the Charter have
not been met.  The better view is that practice can not be precedent
except in cases where a special judicial-style process has resulted in
a narrow opinion upholding or striking down the practice on the
ground, and the judges are professionally obligated to study and
uphold the Charter itself.  This process can then provide the blessing
of precedent to actual practice, without the danger and absurdity of
Charter violations constituting Charter compliance.

SELECTED CHARTER PROVISIONS ON VOTING AND MEMBERSHIP
(excerpted, with square brackets [ ] being linking or contextual paraphrase)

CHARTER:
“The members of the IGC” are identified  as “individuals, acting in
personal capacity, who subscribe to the charter of the caucus.”

[FWIW, the text presently being voted on states that IGC list has over
400 people "who have subscribed to the charter."  This would mean that
they are members of IGC with voting rights, because SELF-affirmation,
a "personal decision" of the individual, is the only prerequisite to
voting other than a 2 month period on the list prior to automatically
being given a "voters account" per the Charter's requirements.  It
doesn't seem reasonable to give a voters account to someone not a
voter.]

CHARTER:
As to rights of members of the IGC, “All members are equal and have
the same rights and duties.”

CHARTER:
As “[t]he priority working space” the members of the IGC “will use its
mailing list - governance at lists.cpsr.org”

CHARTER:
Voting Registration
"Each person who is subscribed to the list at least two (2) months
before the election will be given a voter account."

CHARTER:
Voting Process
"As part of the voting process the voter must personally ascertain
[affirm]  that they are a member of the IGC based on membership
criteria described elsewhere in this charter and posted as part of the
voting information (i.e. a voter **must affirm** membership on the
voter form **in order to vote**). The decision to self-identify as a
member of the IGC is a personal decision based on the criteria
defined."

[Note that the self-affirmation is purely a voters "personal decision"
and they have a voter account after 2 months on list.  The Charter
also provides for affirmation prior to voting FOR EACH VOTING PROCESS,
as something that "must" be done prior to any vote. Thus, every voter
at all times should "affirm the Charter" and then vote immediately
thereafter.  For those who already have a "voting account" by virtue
of 2 months' presence on the list, this creates an equal system
whereby anybody can vote who affirms the Charter on what amounts to a
"same day voter registration" system except that even veteran voters
will also affirm the Charter. This comes from this language of the
Charter: "a voter **must affirm** membership on the voter form **in
order to vote**. (asterisks added for emphasis)]  While repeatedly
affirming the Charter might seem redundant especially to those not
especially enthused about the Charter, it is an expression of the most
fundamental rule of the Charter regarding members: "All members are
equal and have the same rights and duties.”  Any doubts should thus be
resolved in favor of equality of all.


CHARTER:
"All voting will be open," [unless a secret ballot is adopted.]

[This appears to show an intent that both consensus operations
identified in the charter as well as charter amendments are "voting"
processes and they shall be "open" unless structured as secret ballots
pursuant to the Charter.]

CHARTER:
"… [Interest groups, thematic groups, editing groups…should be
spontaneously formed in most cases and] should not become bureaucratic
entities in or of themselves and should be disbanded when they have
served their purpose or if they are resulting in inefficient or
exclusionary practice."

[Note that "exclusionary practice" is grounds for disbanding subgroups
- it's a violation of the equality principle of membership.]

CHARTER:
Amendments to the Charter
"The membership requirements for amending the charter are based on the
most currently available voters list."

[The term "voters list" here is somewhat ambiguous, but is best
interpreted to mean voters' registration list which the Charter calls
the "voter account" list. If this is not the case, then failure to
vote in any given election would result in exclusion from membership
for purposes of an immediately subsequent Charter amendment, even
though such a person had previously affirmed the charter and was
otherwise fully qualified for all "voting processes" as defined by the
Charter.]

CHARTER
Acceptance of the Charter
"In order to qualify to vote on the charter, the prospective voter
will first need to affirm that they qualify as a member of the group
as described elsewhere in the charter."
"Once a voter has self-affirmed membership, they will be qualified to
vote for or against the Charter."

CONCLUSION
The present voting process bears re-examination because it creates at
least two separate classes of members, or alternatively results in
expulsion of members for not voting, when expulsion is not provided
for in the charter on this basis (only for hostile listserv violations
and the like).  It does not appear that an election would be valid
unless the voting process requires every voter to affirm the Charter
as a prerequisite to voting but which is in the sole discretion of the
voter whether to do so, or not.  A voters list should be everyone with
a voters account, otherwise the accountholder - a "voter" - is not a
voter for actual voting purposes, which is a paradoxical result.

Disclosure: Having been ill around the time of the last election, I
myself am not a listed voter and was not allowed to vote.
Nevertheless, the above constitutes what I submit is an objective view
of the Charter geared towards resolving tensions between Charter
language and practice, in light of the most fundamental aims of the
Charter, which are equality of membership and acceptance of the human
rights and other purposes of the IGC.

Paul Lehto, Juris Doctor


On 1/31/10, Parminder <parminder at itforchange.net> wrote:
> I am not sure what issues exactly bother Deirdre and Tracy so much, but
> let me try to respond to what I read.
>
> I dont see what could be the problem in Jeremy transparently putting
> forth the outcome of the process, without formally declaring the result
> which, as per the the charter, should be called jointly. He clearly says
> that "I expect to call a result soon after discussing with Ginger.  The
> result will be subject to appeal".
>
> Two people objected to the process as not being proper, and so Jeremy in
> a rather proactive manner went beyond what has been the normal practice
> and described the precise outcomes of the process of calling consensus,
> which has always been done on a 'yes' 'no' vote. How can now we be
> accusing him of further violations is beyond me...
>
> As for the issue of 'voting' and membership in developing IGC positions,
> there is some degree of lack of clarity in the charter, and  precedents
> are followed, as established over the last many years.
>
> Whether  we count  members  or also include non-members, the result of
> the vote would not have change.  it is also important to  see that Bill,
> who  called had earlier called the process into question, though on a
> different issue, did ask Jeremy specifically about the status of the
> voters, after the voting had started.
>
>>And, I presume, to ascertain that they are IGC members in good standing,
>> not just list subscribers, per standard practice? (Bill)
>
>
> Since as per his later email,  in being more proactive than normal in
> discussing the voting outcomes threadbare, Jeremy was  laboring under
> the questions raised by Bill/ McTim on process issues, he as per Bill's
> question, also clarified the status of the voters, and also took a count
> disregarding non-members.
>
> i do agree that this issue of whether only member's votes are counted or
> every list subscriber's has been vague, and attempts to clarify this
> issue has been not successful earlier. This may be  a good time though.
> I do think that anyone who has been on the list for 3 months should be
> able to apply to the co-coordinators to be included in the members' list
> after fulfilling due requirements. I also think that voter of only full
> members, who have clearly affirmed desire to be part of this collective
> process (independent of the current issue under consideration) , should
> count. Otherwise, to give an example, many IGC list subscribers, having
> interest in some institution etc (pl, it is only an example :) ), while
> not otherwise committed to IGC's collective opinion forming process, and
> thus not having applied for membership, may just vote enblock when some
> statement involving  that institution is being framed, which would
> obviously be very unfair.
>
> But I do agree this issue of whose vote counts in a rough consensus
> forming process is a bit open right now. But this doesnt not at all mean
> that we keep discouraging a new coordinator  in his first  consensus
> call  by open ended  comments on 'things could be done better'.
>
>
> Parminder
>
>
>
>
> Tracy F. Hackshaw @ Google wrote:
>> I agree 100% with the issues raised by Deidre. The message by Jeremy
>> does raise several concerns and although the discussion on the topic
>> seems to have died a natural death without being actioned, it appears
>> that a more structured IGC moving forward could assist with ensuring
>> that the approach currently employed for consenus building is
>> enhanced.
>>
>> On 1/31/10, Deirdre Williams <williams.deirdre at gmail.com> wrote:
>>
>>> This message raises several concerns for me which I hope can be
>>> discussed/clarified on the list.
>>>
>>> On 31 January 2010 03:59, Jeremy Malcolm <jeremy at ciroap.org> wrote:
>>>
>>>> I am not calling a result yet, because I need to discuss with Ginger.
>>>>
>>> I feel that this could have been more happily phrased, indeed more
>>> happily done. In a situation which deliberately has TWO
>>> co-coordinators surely the process should be to discuss first and then
>>> jointly publish even a preliminary result.
>>>
>>>
>>>>  However, as indication of participation, my count says that after
>>>> removing
>>>> duplicate votes and accounting for changed votes (mainly from YES to YES
>>>> +
>>>> thematic working groups), we have had 39 votes for YES + thematic
>>>> working
>>>> groups, 3 YES votes, 3 NO votes, and one abstention.
>>>> Of these, seven YES + thematic working groups votes, and one YES vote,
>>>> were
>>>> from non-members and have to be disregarded.
>>>>
>>> PLEASE clarify the issue of "membership". This was not an election, it
>>> was an open vote to try to establish consensus. I have pasted in what
>>> seem to me to be the two relevant parts of the IGC charter below.
>>>
>>> "Each person who is subscribed to the list at least two (2) months
>>> before the election will be given a voter account.
>>> As part of the voting process the voter must personally ascertain that
>>> they are a member of the IGC based on membership criteria described
>>> elsewhere in this charter and posted as part of the voting information
>>> (i.e. a voter must affirm membership on the voter form in order to
>>> vote).'
>>>
>>> While the language of this rubric seems to suggest that it is limited
>>> to elections, it is the only guidance the Charter offers for a "Voting
>>> Process" which in fact is the heading for the paragraph. So is this to
>>> govern the general "voting process" on issues, or only election
>>> voting?
>>>
>>> See the paragraph below. Is it the case that "an overwhelming majority
>>> of the IGC" DOES NOT include those people who have joined the group
>>> since the most recent election? In this case this would exclude those
>>> who became interested and joined the list during or after the most
>>> recent IGF meeting.
>>>
>>> Decisions
>>>
>>> The IGC will work on the basis of consensus as much as is possible.
>>> When complete consensus cannot be reached the coordinators will be
>>> jointly empowered to call rough consensus. Rough consensus, for the
>>> purposes of the IGC, is defined as the point at which an overwhelming
>>> majority of the IGC appears to agree with a position with any
>>> dissenting minority view having been well discussed and respected.
>>>
>>>
>>>> I expect to call a result soon after discussing with Ginger.  The result
>>>> will be subject to appeal.
>>>>
>>> For statements defined as coming from two people the first person
>>> plural "we" or an impersonal third person plural "The co-coordinators"
>>> (although clumsy) would be preferable.
>>> But then I'm an English teacher, and fussy :-)
>>>
>>> Best wishes
>>>
>>> Deirdre
>>>
>>>> --
>>>>
>>>> Jeremy Malcolm
>>>> Project Coordinator
>>>> Consumers International
>>>> Kuala Lumpur Office for Asia Pacific and the Middle East
>>>> Lot 5-1 Wisma WIM, 7 Jalan Abang Haji Openg, TTDI, 60000 Kuala Lumpur,
>>>> Malaysia
>>>> Tel: +60 3 7726 1599
>>>>
>>>> CI is 50
>>>> Consumers International marks 50 years of the global consumer movement
>>>> in
>>>> 2010.
>>>> Celebrate with us as we continue to support, promote and protect
>>>> consumer
>>>> rights around the world.
>>>> http://www.consumersinternational.org/50
>>>>
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>>>
>>> --
>>> “The fundamental cure for poverty is not money but knowledge" Sir
>>> William Arthur Lewis, Nobel Prize Economics, 1979
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>>
>


-- 
Paul R Lehto, J.D.
P.O. Box #1
Ishpeming, MI  49849
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906-204-4026
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