Should Citizen Jurors have a right to anonymity?

Yes, they should, says the Irish Constitutional Convention. No they shouldn’t, says an condemnatory editorial in the Irish Times.

The faceless sixty-six

It’s bad enough that the Government should severely circumscribe the agenda of the constitutional convention, but it is bizarre and unprecedented decision to turn it into an advertising focus group by allowing its 66 “citizen” members to remain anonymous takes the biscuit. What price transparency, supposedly one of our new core values?


This is not how a democracy functions – it matters who takes decisions on our behalf as well as why. Does a decision, for example, to introduce quotas for women candidates have the same meaning if backed largely by women, as one opposed by all the women? And why would we be alarmed at the idea of anonymous lobbyists working unmonitored, while granting anonymity to drafters of our Constitution?

The convention’s spokesperson says the anonymity decision was taken to protect privacy because the pollsters who were asked to find a representative 66 were confronted by some unwilling to serve because they were fearful of attentions from lobbyists and journalists. Yet, apart from the fact that such fears are exaggerated, such attention, and maybe criticism, as these representatives might attract should be seen simply as a normal, acceptable part of the public political function they have been asked and agreed to do. If reluctant to face a gentle light of publicity – no problem, the pollsters can do more work and find other volunteers.

20 Responses

  1. >And why would we be alarmed at the idea of anonymous lobbyists working unmonitored, while granting anonymity to drafters of our Constitution?

    Fair point. Sixty-six is not nearly enough to ensure statistical representativity and would be comparatively easy to bribe. As they would be acting in an individual (as opposed to collective) capacity, they would need to justify their decisions via the exchange of public reasons.


  2. No, I don’t think the concern about corruption is a big deal. If it is possible to shield the selected’s identities, it’s hard to imagine they should be simultaneously easily accessible to lobbyists in person. And I think the selected would actually be more independent if they were anonymous to the outside world (though they shouldn’t be to each other.

    However, there is the problem that if the selected’s identities are truly protected, there’s no way to guarantee that they are in fact selected randomly – at least, none that I can see. And that is a big deal, something we definitively can’t afford to lose.


  3. Constitutional conventions generally last for a significant period of time and the 66 random citizens are serving alongside elected politicians who are notoriously leaky. Besides which, if the allotted members are not seen to “look like Ireland” then what is the point of having them participate? It’s alarming to see how poorly thought-through this sort of initiative is, especially when dealing with fundamental constitutional issues.


  4. In the centuries-old evolved institution of legal juries, the anonymity and freedom from all but controlled access for jurors is sacrosanct. Who thinks this sort of jury is not ‘a random cross-section of the people’? (Quotes ‘ ‘ because of course strictly speaking it ain’t, but that’s the popular conception).
    But I get Harald’s point about the public needing to see the representativeness of the ’66’. So let them be seen, but with blurred faces, maybe?


  5. The idea that secrecy somehow results in better government is absurd. It is common sense (and even one of the few valid parts of standard democratic dogma) that transparency is essential for good government and that secrecy breeds corruption.

    Obviously, secrecy allows various problems in the system to remain hidden and therefore diminishes the quality of the system and diminishes the trust in the system even when it functions well. Beyond that, and just as importantly, secrecy reduces the motivation of even well intentioned actors to invest time and effort in gaining good understanding of the problems and in coming up with effective solutions.

    What is the legitimate reason for wanting to keep your identity secret? If the problem is harassment by lobbyists and journalists, it should be a simple matter of regulation to keep this in check, and as the Time piece mentions, some level of public attention is not only to be expected, it is to be desired. Wouldn’t the members of the convention be willing, for reasonable compensation, handle a reasonable level of public attention?

    In fact, we can’t even know the answer to this question since, presumably, to preserve the anonymity of the members of the convention, the public would not be allowed direct access to their opinions on this issue as well. Are we just supposed to take the assertions of the spokesperson on faith? Where is the data to back it up? This is just the thin end of the wedge of the secrecy. Once we accept that it is desirable to hide information from the public, accountability and good government are essentially an impossibility.


  6. So, Yoram, would you approve of court-case jury members being publicly identified? and if they come up with the ‘wrong’ verdict being vilified in the Press/Twitter?


  7. In general, I don’t believe the cases of legal juries and legislative or constitutional chambers are close enough so that whatever is right for one is always right for the other.

    On this issue, however, yes – publicity is essential in both cases. I believe this is the current situation in the U.S. Exceptions could be considered of course in special cases, but otherwise if harassment is an issue, the regulations about harassment need to be tuned appropriately.


  8. >What is the legitimate reason for wanting to keep your identity secret? If the problem is harassment by lobbyists and journalists, it should be a simple matter of regulation to keep this in check

    If allotted members had initiative/advocacy powers, no amount of regulation would prevent corruption (more important than preventing harassment). If they had voting-only powers then there would be no need to keep their identity secret, only their individual votes. Widespread corruption was the reason for the introduction of the secret ballot in parliamentary elections.


  9. I think there are two separate questions here. First, if we don’t know who these people are, will they do their jobs right? And second, if we don’t know who these people are, can we be sure that they really were selected at random? The second is a serious concern, although in principle there should be ways to ensure randomness without making the identities of the chosen public. But the first is something of a mixed bag. I know Jon Elster has spoken about this in his work on constitutions. He has stressed that it can be harder for politicians to hammer out a constitution if their deliberations are public. They might be reluctant, for example, to put forth a position and then back away from it. This would be less of a problem, admittedly, for ordinary citizens with no political ambitions, but I still think that citizen deliberation will be affected by being watched, and not always in a good way.


  10. Peter – if secrecy makes it difficult to verify that a simple lottery mechanism functions properly, then I think it is clear that the potential for corruption of a decision-making mechanism working in secret is unlimited and impossible to neutralize.


  11. On a similar principle to “justice has to be seen to be done”, a group of people that “looks like [Ireland]” would most likely be accepted as a random sample. It would also be possible to publish the demographic/occupational/socio-economic characteristics of the sample and simple survey data would indicate to what extent their declared views mirrored the larger population. All this could be verified by engaging a plurality of independent polling organisations.

    Shielding the sample from corruption by lobbyists would be a lot more challenging, unless it was accepted that the role of the allotted body was limited to silent deliberation followed by the secret vote. In the Irish case I can’t imagine that any of the allotted citizens would be bothered by being depicted as participants, so long as their individual views and judgment remained anonymous.


  12. I have struggled with this issue for a long time, and am not deeply committed to my current view (against secrecy). One reason, has to do with the inducement to serve (without lavish payment), is the “honor” that comes with the service. The desire to be held in high regard by one’s community has been recognized as a driving force of human behavior since at least the time of Adam Smith (in The Theory of Moral Sentiments). So while some participants might prefer the privacy of working “in camera,” (funny how that Latin phrase sounds like it means the opposite) others might only serve if they could do it in full view. However, it seems to me that the work might be done in secret without the influence of lobbyists, as long as the participants were revealed at the end (to confirm they are a representative sample selected by lot).


  13. Chouard likes to emphasize the importance of the “gaze of others” as a motivator for public service (and I think he is right). He uses the term “Vergogne” to describe this human trait. See:

    Click to access Etienne_Chouard_2012_Pas-de-democratie-sans-tirage-au-sort.pdf

    VERGOGNE = importance que l’on donne àl’opinion des autres «Qu’on mette àmort, comme un fléau de la cité, l’homme qui se montre incapable de prendre part àla Vergogne et àla Justice.»Zeus, via PLATON (Protagoras, 322b‐323a).La vergogne pousse àla vertu. Et inversement.


    Finalement, c’est à la fois le regard bienveillant, la confiance, de la plupart de mes lecteurs, ainsi que la méfiance des autres — ceux qui disaient de moi que j’étais un imposteur — qui ont été les moteurs de mon engagement depuis.


  14. Yoram: Even if we agree with Chouard, it’s by no means clear the “others” in the gaze of others need to be the population at large. It may be sufficient that it is the other assembly members.

    Indeed, if we know that individuals in the public at large will vary widely in the power they assert with their “gaze” (and I think that’s pretty clear), why wouldn’t we want to restrict it to the representative sample? It’s another way mass politics can sneak into the assembly.

    I’d definitively prefer an arrangement where the assembled’s identities were revealed beforehand, but their specific identities during deliberation and voting would be kept hidden from the public.


  15. Yes I think that’s a sensible compromise — the allotted body can be demonstrated to be a representative sample but individual members would be hard to corrupt if there was no way of knowing how they spoke or voted (the former, however, being difficult to police).


  16. Harald,

    You make interesting points, but ultimately I think they do not make a convincing case.

    I agree that the gaze of the fellow delegates is very important. This is a good reason in favor of open discussion within the chamber and against voting in secret.

    But I think this is not enough. Sealing the delegates from public scrutiny is likely to create a sense of unaccountability and disconnection among the delegates and among the public, reducing the commitment of the delegates to the welfare of the population and the trust of the population in the delegates.

    I also agree that elites would try to influence the delegates in various ways. I think, however, that keeping the identities of the delegates and the discussions secret gives the elites much more maneuvering room than openness and transparency. I would expect that if the delegates feel that certain elements are trying to exert undue influence over the proceedings they would make appropriate arrangements to neutralize this influence.

    Finally, secrecy has the effect of muzzling the delegates and robbing them of important ways to inform and influence the public, leaving the public even more vulnerable to manipulation by elites.

    All in all, I find that the common wisdom asserting that secrecy is antithetical to good government is well justified for quite a few reasons.


  17. Yoram,

    You wrote:
    “Sealing the delegates from public scrutiny is likely to create a sense of unaccountability…”

    I am not sure that the word “accountability” or “unaccountability” actually applies in the case of an allotted chamber. In an election process it makes logical sense (even if it can’t genuinely be exercised). But allotted representatives aren’t supposed to do anybody’s bidding but their own. How would one “hold them accountable,” if they were publicly exposed? By throwing eggs at offending members, or booing them on their way to lunch? Threatening their family, or their job? The premise of a random sample acting in lieu of the entire population is that by each member voting as they think best, they are likely to act in the interests of the community as a whole. If any special interest, elite, or dominant group in society can “hold the members accountable,” I think the project fails.


  18. Terry,

    I was referring to accountability as psychological and cultural characteristics of the delegates as individuals and as a group. The mere fact of knowing that your actions would become part of the public record and that you may be asked to explain them makes a big difference IMO.

    The idea is not that the delegates would try to act as someone else would want them to, but that the delegates would act as appropriate to their privileged position, according to their own understanding.


  19. There are two senses of “accountability”. Electoral accountability is reactive — if you don’t approve of how your politicians have behaved you can vote them out at the next election. But there is also J.S. Mill’s sense of moral accountability — citizens should “stand up and be counted” in the eyes of their peers. If an allotted rep. is supposed to judge in the public interest then she should be prepared to “nail her colours to the mast”. This is why Mill was opposed to the secret vote.

    The trouble is it’s very hard to distinguish between the public interest (the general will) and political correctness, fashionability and generally going along with the herd. This is why it’s hard to take unpopular decisions in the full glare of publicity — especially if this is not your day job, you aren’t protected by the police, and will have to return soon to your regular place in the community. Allotted reps deciding issues in public would be strongly motivated to take the easy option. Once you take that into account, as well as the need to reduce the power of lobbyists and others who would seek to corrupt the outcome, the argument for the secret vote easily trumps the case for moral accountability (you can’t buy a vote, if it’s recorded anonymously). This will inevitably mean that allotted reps will vote more in their own interests (rather than giving their opinion on what is the general will), but so long as the allotted sample accurately describes the whole citizen body that’s about as good as it gets from the perspective of liberal democracy (although it could be viewed as a corruption of the general will). Long-term interests, including the rights of the unborn, will need to be protected by other constitutional safeguards.

    None of this suggests the need to conceal the identity of allotted reps, merely to protect the decision mechanism. It would also suggest that the remit of an allotted assembly should not include policy proposal, advocacy or any speech acts other than asking questions of the advocates and expert witnesses, as it would be impossible to provide anonymity in these cases.


  20. Well its no secret that I am glad to see the Irish government experimenting with sortition of a sort.


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