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The following is a reflection on the relationship of the concept of procedural due process in relation to the principle of Divine Justice that the House of Justice states is the framework for due process in the Bahá'í administrative Order.
The absence in Bahá'í administration, in particular, of a formal set of procedures to be universally applied for the discovery of facts necessary for the adjudication of a case and the application of sanctions for the infringement of Bahá'í law, has figured prominently in the anti-Bahá'í polemics of the last 20 years, frequently in relation to administrative responses to academic Bahá'ís and former Bahá'ís engaged, in the words of one such academic, in a "culture war" against perceived flaws in the current workings and leadership of Bahá'í institutions.
In this sense due process is defined in terms of procedural justice, and within that, in terms of the participation model of procedural justice. It is argued that a lack of such procedures, and in particular procedures modelled after the participatory model of procedural justice, leads to systemic unfairness, and conversely, that the elaboration and application of such a framework of universally applicable procedures modelled on Western legal systems would ensure fairer processes and outcomes.
In a letter of the Universal House of Justice, the notion of due process as a constitutional principle of legal fairness is endorsed, while the notion of due process as a universal set of formal procedures to be applied is rejected:
"The concept of due process, in the sense of a legal principle which may be embodied in a constitution and which requires the government to treat people fairly, is clearly encompassed by the Bahá'í principle of "Divine justice," a principle characterized as "the crowning distinction of all Local and National Assemblies." It is also implicit in the qualities of rectitude of conduct to be manifested "in every verdict which the elected representatives of the Bahá'í community . . . may be called upon to pronounce.
"The term "due process" is also used to indicate a set of formal legal procedures designed to protect the rights of persons accused of wrongdoing. These procedures vary from place to place and may reflect the prevailing political ideology. The Administrative Order has not adopted a formal set of procedures to be applied universally in the Bahá'í community for dealing with infringements of Bahá'í law. Rather, the Spiritual Assembly in its operation is guided and constrained by the Teachings and committed to protect and preserve the rights of both the individual and the community. Hence, while there is no fixed procedure for the discovery of facts necessary for the adjudication of a case, it is a matter of principle that Assemblies must, before passing judgment, acquaint themselves, through means they themselves devise, with the facts of any case.
"The principal motive is not to condemn and punish the individual but to assist him, if necessary, to bring his behavior into conformity with the Teachings and also to protect the community."
(Letter written on behalf of the Universal House of Justice, datedJuly 20, 1988, included with a letter dated January 1, 1989, to a National Spiritual Assembly)
The absence in Bahá'í administration, in particular, of a formal set of procedures to be universally applied for the discovery of facts necessary for the adjudication of a case and the application of sanctions for the infringement of Bahá'í law, has figured prominently in the anti-Bahá'í polemics of the last 20 years, frequently in relation to administrative responses to academic Bahá'ís and former Bahá'ís engaged, in the words of one such academic, in a "culture war" against perceived flaws in the current workings and leadership of Bahá'í institutions.
In this sense due process is defined in terms of procedural justice, and within that, in terms of the participation model of procedural justice. It is argued that a lack of such procedures, and in particular procedures modelled after the participatory model of procedural justice, leads to systemic unfairness, and conversely, that the elaboration and application of such a framework of universally applicable procedures modelled on Western legal systems would ensure fairer processes and outcomes.
In a letter of the Universal House of Justice, the notion of due process as a constitutional principle of legal fairness is endorsed, while the notion of due process as a universal set of formal procedures to be applied is rejected:
"The concept of due process, in the sense of a legal principle which may be embodied in a constitution and which requires the government to treat people fairly, is clearly encompassed by the Bahá'í principle of "Divine justice," a principle characterized as "the crowning distinction of all Local and National Assemblies." It is also implicit in the qualities of rectitude of conduct to be manifested "in every verdict which the elected representatives of the Bahá'í community . . . may be called upon to pronounce.
"The term "due process" is also used to indicate a set of formal legal procedures designed to protect the rights of persons accused of wrongdoing. These procedures vary from place to place and may reflect the prevailing political ideology. The Administrative Order has not adopted a formal set of procedures to be applied universally in the Bahá'í community for dealing with infringements of Bahá'í law. Rather, the Spiritual Assembly in its operation is guided and constrained by the Teachings and committed to protect and preserve the rights of both the individual and the community. Hence, while there is no fixed procedure for the discovery of facts necessary for the adjudication of a case, it is a matter of principle that Assemblies must, before passing judgment, acquaint themselves, through means they themselves devise, with the facts of any case.
"The principal motive is not to condemn and punish the individual but to assist him, if necessary, to bring his behavior into conformity with the Teachings and also to protect the community."
(Letter written on behalf of the Universal House of Justice, datedJuly 20, 1988, included with a letter dated January 1, 1989, to a National Spiritual Assembly)
* * * * *
Dear all, I have been following this discussion with great interest. There is no doubt that the issues at stake are crucial, and likely to grow in importance in relation to both the growth and longevity of Baha'i communities, and in relation to the Faith's emergence from obscurity. The way we deal with dysfunctions, wrongful behaviour, and judicial matters (in the broadest sense) will have an immense impact on our culture, our engagement with wider society, and most crucially on our unity.
I must say that I profoundly sympathise with the concerns raised. There are few things as testing to a sincere Baha'i as being misrepresented or even legitimately "inquired" into. Whatever the actual administrative consequences of such a process, its spiritual and emotional impact should in no way be minimised. Even should such an inquiry proceed no further, it is not an experience anyone would wish for. Likewise, the degree of discretion available to LSA's and other institutions is such that institutional or spiritual immaturities, or even simple ignorance, can have an enormous impact. Often Baha'is affected will not feel able or inclined to take it any further, so communities don't always learn from their mistakes or trials.
This inclines me to agree to the view that some measure of guidance on "due process" would be beneficial, although I do feel closer to the suggested communitarian emphasis on mutual responsibilities (which implies but does not over-emphasise the notion of rights), than to the more legalistic approach likewise put forward. Law, as exercised and understood currently, is in no way a guarantee or even a prerequisite of justice. In point of fact, in UK, for instance, most crime goes undetected, most detected crime never makes it to the courts, and a great deal of the crime that makes it to the courts results in no conviction. In civil law, the situation is not much better, and generally speaking, factors other than due process or validity influence outcomes. Not only the design, but the operation of the law is demonstrably biased against certain social groups, notably ethnic minorities and the poor, and in many areas of the law, women. Due process, for all its rigour, even where followed, is a long way from ensuring justice. Attempts to tackle racism through increased legislation for instance, barely touch the surface, making dents so small as to be hardly noticeable. What is needed, as has been pointsed out, is not, primarily, refined procedures, but a spiritual transformation, as 'Abdu'l-Baha often remarked in relation to the proliferation of legislation in the West.
There are also certain radical problems in my mind about legal procedures that, it has been suggested, if I understand correctly, we incorporate into Baha'ipractice. We can already turn, as individuals, to assistants, Auxiliary Board memebers and Counsellors for advice in our relations to an LSA. This is, however, very different from the idea of "counsel" as it operates in the courts and is implied in legal documents on due process. The idea of a"defense" counsel, whose job is to defend his client regardless of what he might consider to be the truth, is a position I would not envy anybody, and the same goes for the prosecution. The generally lackluster movie Devil'sA dvocate jumps to mind, in the acquital of a pederast whose defense knew him to be guilty. Last Christmas I had dinner with a young man who is today inprison, convicted of rape, on the testimony of a woman who, it emerged after the trial, had made a string of similar accusations before, which had proven false. He was very drunk at the time and did not remember much. Upon his conviction, the prosecution lawyer apologised to his family, and is now helping him with his appeal! There was not, in this case, a single violation of due process, in fact the opposite, it was through due process that the prosecution was impelled to work for a conviction even when, as it became apparent after the fact, the prosecution lawyer considered such an outcome unfair. Be that as it may, a talented young man's life has been shattered.
These are dramatic examples to suggest that the notion that detailed laws and formal processes are the basis of justice is, by itself, flawed. I would invert the equation. The current, litigation based view of "counsel", can be as destructive as it is constructive, and involves an inherent logic that can often pitch it outside the quest for truth. In small community and group settings, in fact, detailed legal codes are no prerequisites of justice, and may often obscure it, in a way that consultative approaches at community level may or may not depending on circumstances. Attempts to import western legal procedures into communal legal processes among indigenous peoples in the Americas have very frequently ended in disasters,and triggered new injustices. I wonder whether any lessons - good and bad - might be shared from the experience of more communitarian styles of justice as practiced among the Navajo? The Zapatista uprising in Mexico in January 1994 focused all its political capital some years later in an attempt to alter the Mexican constitution to respect and protect the indigenous, communitarian judicial processes of the Mayans and other indigenous peoples in Mexico, under the conviction that they were considerably more effective at a community level among their people, than the Roman law that had been imposed on their communities with frequently devastating effects.
Finally, in this problematic, the current discourse on rights tends to come from a conflictive perspective, and has led in the States, and increasinglyin UK, to a culture of litigation that has nothing to do with the original vision of the framers of the Declaration of Human Rights. A recent human rights case in UK involves a prisoner pleading the prohibition on his receiving gay pornography as a fundamental violation of his human rights. The man has a point, since heterosexual pornography is allowed for fellow inmates, but somehow I see a big leap from the ethos and aspirations behind the Universal Declaration. The problem does not lie with the notion ofrights, which the Constitution of the Universal House of Justice explicitly protects, but it does lie in the spiritual, social and legal paradigm within which those rights are interpreted and pursued. It is here where I would return to the emphasis adduced earlier on the covenantal duty of consultation, true consultation, as the basis of the embryonic (if that) Baha'i communal legal practice.
The ethos of litigation which underpins current notions of due process seems to me to be as far removed from the Baha'i spirit of consultation as can be. Where is the prayerfulness? Where is the trust in the group process, and the ownership of ideas, suggestions, and opinions by the group, not the individual? Where is the presence of 'Abdu'l-Baha? American lawyers recognise that their chances of success are often dependent on their careful picking of a jury! To the consultative principles suggested, I would add one more, which is the principle of transcendence. The notion that our true judge is in fact God, and that it is to Him that we are accountable. Neither the wrongful sanction nor the wrongful acquittal by an Assembly will determine our innocence or otherwise, its integrity or otherwise. This means that even in the direst circumstances we retain the freedom of which 'Abdu'l-Baha spoke in prison. This is important, since few if any of our noblest Baha'i heroes have not experienced wrongful accusations, sometimes from each other (think of Lua Getsinger; Louis Gregory; Corinne True; among others; think of 'Abdu'l-Baha and Shoghi Effendi!). In the last resort, there was a deeper reserve of legitimacy they could turn to for vision, authenticity and dignity, than the never less than painful opinions of fellow believers.
Notwithstanding, I still think that the idea of some guidance on dueprocess would be invaluable, as small communities of volunteers "improvise"their way around being a responsible Baha'i Assembly. At a time when one assembly constitutes the entire community, and another oversees the affairs of a community thousands strong, such guidance needs to be very flexible and probably minimalistic. I would suggest a "recommended" rather than a binding code of guidance from NSA's, including broad suggestions or quotes on such basic things as what constitutes "blatant or flagrant"; the importance of gathering the facts; the importance of a spirit of love and humility; on mechanisms of appeal; on consultation with the learned arm, assistance available through pastoral care committees of the NSA and the like; on dealing with criminal behaviour; on referrals to qualified professionals; etc. It could be made available on its own, as a point ofreference that Assemblies would turn to when in need of advice.
In any case, thank you for raising these points, and best of luck on your further investigations in this area.
With love,
Ismael
I must say that I profoundly sympathise with the concerns raised. There are few things as testing to a sincere Baha'i as being misrepresented or even legitimately "inquired" into. Whatever the actual administrative consequences of such a process, its spiritual and emotional impact should in no way be minimised. Even should such an inquiry proceed no further, it is not an experience anyone would wish for. Likewise, the degree of discretion available to LSA's and other institutions is such that institutional or spiritual immaturities, or even simple ignorance, can have an enormous impact. Often Baha'is affected will not feel able or inclined to take it any further, so communities don't always learn from their mistakes or trials.
This inclines me to agree to the view that some measure of guidance on "due process" would be beneficial, although I do feel closer to the suggested communitarian emphasis on mutual responsibilities (which implies but does not over-emphasise the notion of rights), than to the more legalistic approach likewise put forward. Law, as exercised and understood currently, is in no way a guarantee or even a prerequisite of justice. In point of fact, in UK, for instance, most crime goes undetected, most detected crime never makes it to the courts, and a great deal of the crime that makes it to the courts results in no conviction. In civil law, the situation is not much better, and generally speaking, factors other than due process or validity influence outcomes. Not only the design, but the operation of the law is demonstrably biased against certain social groups, notably ethnic minorities and the poor, and in many areas of the law, women. Due process, for all its rigour, even where followed, is a long way from ensuring justice. Attempts to tackle racism through increased legislation for instance, barely touch the surface, making dents so small as to be hardly noticeable. What is needed, as has been pointsed out, is not, primarily, refined procedures, but a spiritual transformation, as 'Abdu'l-Baha often remarked in relation to the proliferation of legislation in the West.
There are also certain radical problems in my mind about legal procedures that, it has been suggested, if I understand correctly, we incorporate into Baha'ipractice. We can already turn, as individuals, to assistants, Auxiliary Board memebers and Counsellors for advice in our relations to an LSA. This is, however, very different from the idea of "counsel" as it operates in the courts and is implied in legal documents on due process. The idea of a"defense" counsel, whose job is to defend his client regardless of what he might consider to be the truth, is a position I would not envy anybody, and the same goes for the prosecution. The generally lackluster movie Devil'sA dvocate jumps to mind, in the acquital of a pederast whose defense knew him to be guilty. Last Christmas I had dinner with a young man who is today inprison, convicted of rape, on the testimony of a woman who, it emerged after the trial, had made a string of similar accusations before, which had proven false. He was very drunk at the time and did not remember much. Upon his conviction, the prosecution lawyer apologised to his family, and is now helping him with his appeal! There was not, in this case, a single violation of due process, in fact the opposite, it was through due process that the prosecution was impelled to work for a conviction even when, as it became apparent after the fact, the prosecution lawyer considered such an outcome unfair. Be that as it may, a talented young man's life has been shattered.
These are dramatic examples to suggest that the notion that detailed laws and formal processes are the basis of justice is, by itself, flawed. I would invert the equation. The current, litigation based view of "counsel", can be as destructive as it is constructive, and involves an inherent logic that can often pitch it outside the quest for truth. In small community and group settings, in fact, detailed legal codes are no prerequisites of justice, and may often obscure it, in a way that consultative approaches at community level may or may not depending on circumstances. Attempts to import western legal procedures into communal legal processes among indigenous peoples in the Americas have very frequently ended in disasters,and triggered new injustices. I wonder whether any lessons - good and bad - might be shared from the experience of more communitarian styles of justice as practiced among the Navajo? The Zapatista uprising in Mexico in January 1994 focused all its political capital some years later in an attempt to alter the Mexican constitution to respect and protect the indigenous, communitarian judicial processes of the Mayans and other indigenous peoples in Mexico, under the conviction that they were considerably more effective at a community level among their people, than the Roman law that had been imposed on their communities with frequently devastating effects.
Finally, in this problematic, the current discourse on rights tends to come from a conflictive perspective, and has led in the States, and increasinglyin UK, to a culture of litigation that has nothing to do with the original vision of the framers of the Declaration of Human Rights. A recent human rights case in UK involves a prisoner pleading the prohibition on his receiving gay pornography as a fundamental violation of his human rights. The man has a point, since heterosexual pornography is allowed for fellow inmates, but somehow I see a big leap from the ethos and aspirations behind the Universal Declaration. The problem does not lie with the notion ofrights, which the Constitution of the Universal House of Justice explicitly protects, but it does lie in the spiritual, social and legal paradigm within which those rights are interpreted and pursued. It is here where I would return to the emphasis adduced earlier on the covenantal duty of consultation, true consultation, as the basis of the embryonic (if that) Baha'i communal legal practice.
The ethos of litigation which underpins current notions of due process seems to me to be as far removed from the Baha'i spirit of consultation as can be. Where is the prayerfulness? Where is the trust in the group process, and the ownership of ideas, suggestions, and opinions by the group, not the individual? Where is the presence of 'Abdu'l-Baha? American lawyers recognise that their chances of success are often dependent on their careful picking of a jury! To the consultative principles suggested, I would add one more, which is the principle of transcendence. The notion that our true judge is in fact God, and that it is to Him that we are accountable. Neither the wrongful sanction nor the wrongful acquittal by an Assembly will determine our innocence or otherwise, its integrity or otherwise. This means that even in the direst circumstances we retain the freedom of which 'Abdu'l-Baha spoke in prison. This is important, since few if any of our noblest Baha'i heroes have not experienced wrongful accusations, sometimes from each other (think of Lua Getsinger; Louis Gregory; Corinne True; among others; think of 'Abdu'l-Baha and Shoghi Effendi!). In the last resort, there was a deeper reserve of legitimacy they could turn to for vision, authenticity and dignity, than the never less than painful opinions of fellow believers.
Notwithstanding, I still think that the idea of some guidance on dueprocess would be invaluable, as small communities of volunteers "improvise"their way around being a responsible Baha'i Assembly. At a time when one assembly constitutes the entire community, and another oversees the affairs of a community thousands strong, such guidance needs to be very flexible and probably minimalistic. I would suggest a "recommended" rather than a binding code of guidance from NSA's, including broad suggestions or quotes on such basic things as what constitutes "blatant or flagrant"; the importance of gathering the facts; the importance of a spirit of love and humility; on mechanisms of appeal; on consultation with the learned arm, assistance available through pastoral care committees of the NSA and the like; on dealing with criminal behaviour; on referrals to qualified professionals; etc. It could be made available on its own, as a point ofreference that Assemblies would turn to when in need of advice.
In any case, thank you for raising these points, and best of luck on your further investigations in this area.
With love,
Ismael
1 comment:
Excellent commentary, Ismael. Thank you.
Suzanne
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