I have serious concerns about the IBA’s proposed amendments to its rules governing voting by proxy. Yesterday I distributed this letter to the estimated 220 members of the IBA's governing Council who are able to vote on these proposals at the IBA's Mid-Year Meetings in Barcelona on 28th May. I copy it here for your attention:
24th May 2016
To: Members of the IBA Council
Re: Objections to Proposed Amendments to the IBA’s Rules Governing Voting by Proxy
Dear Mesdames and Messieurs,
I am the Managing Partner of Martin Kenney & Co Solicitors of the British Virgin Islands, a 30-person fraud, asset recovery and cross-border creditors’ rights firm. I have been a member of the IBA since approximately 1992.
I have had the opportunity to review a copy of the agenda for the meeting of the IBA Council which is scheduled to take place in Barcelona on 28th May 2016. I have certain concerns regarding the proposed changes to the rules governing voting by proxy for the election of IBA officers.
II. Executive Summary
This letter is in response to the proposed amendments to the IBA’s rules governing electronic voting and voting by proxy. There are risks that accompany using electronic voting as a substitute for voting by proxy, particularly with respect to the instability of electronic voting in developing nations. With regards to the proposed amendments to the proxy voting system, I contend that they should be rejected by the Council. I juxtapose the benefits of the current system against the proposed exclusion of persons who may hold proxies, and the unfairness intrinsic with ex post facto rule-making. Finally, I make note of the goals that the IBA should consider when proposing these and future amendments to its electoral process.
Before beginning, I would like to suggest that the IBA needs to make efforts towards becoming a more transparent organisation. As it currently stands, there is no easy way to access either the names or contact information of the estimated 200 individuals who are currently Council Members or who are authorised to vote on behalf of “member organizations” on the Council. In the main, these individuals are meant to represent the Bar Associations of their home countries. It becomes impossible for those represented to easily contact the members who sit on the Council with comments and suggestions, such as those which are expressed below, absent a compilation of identifying information being posted on, say, the IBA’s website. As such, I suggest that the IBA makes this information available to all IBA members.
III. Electronic Voting
There are several developing issues that the IBA needs to address, or run the risk of being labeled undemocratic. The use of electronic voting systems is clearly helpful, as it enables many persons who cannot attend conferences and meetings the opportunity to cast their vote and have their voices heard. As I understand it, the details of how the IBA electronic voting systems will operate are still to be released, but suffice to say that in the long term this has to be a step in the right direction.
B. Risks of Relying Solely on Electronic Voting
This said, the electronic voting system should operate in tandem with the proxy voting system and should not be seen as a replacement. Voting by way of proxy is an integral practice in many electoral systems. It has stood the test of time; not least because it is wholly non-technical and thereby does not rely upon the Internet. People feel safe casting their vote by proxy, trusting friends and associates in the IBA to vote in accordance with their wishes. These different methods of voting are harmonious.
It is ‘trust’ that underpins the democratic process, not only in the IBA but in all forms of electoral and decision making procedures. Without trust the ultimate decision will always be questioned. We see this regularly in developing democratic societies, where voting practices are suspected of being flawed. In many instances they are not. It is simply the negativity emanating from voters who considered the process to be too complex, or were unhappy with the rules abiding the electoral system. The perception that the process is complex and lacks transparency clouds the result.
IV. By Proxy Voting
A. Benefits of the Current System
The advantages of proxy voting may be lost on those who work in developed countries located in Europe and the Americas. But we have current, and as importantly, potential members in far-flung places much less advanced. I refer to the corners of the globe where sporadic electricity supplies are the norm, and where access to the Internet is both costly and intermittent. I am based in the British Virgin Islands where we are a comparatively well-developed group of islands. But electricity cuts, brown-outs and sporadic Internet are daily challenges here, so I can only imagine what it may be like in other parts of the world where electricity poses a larger problem. By proxy voting allows individuals without stable access to electronic voting to be heard.
B. Proposed Amendments
The proposition that the current proxy voting system should be rewritten is, with respect, flawed. Currently, proxyholders can hold as many proxies as member organisations choose to give them. This is consistent with the goal of expanding participation in elections. In contrast a proposed amendment summarised at item 9, pages 56-59 of the IBA Council Barcelona meeting agenda seeks to place new constraints on this expansive proxy voting right by (a) limiting proxies held by a member organisation to a maximum of 3, (b) introducing an arguably disproportionate sanction for non-compliance with this rule by declaring all proxies held by a member organisation void if it has been conferred with more than 3 of the same and, (c) eliminating “Councillors” as possible proxy-holders. (See the proposed amendment to Article 4.22.2 of the Constitution). Whoever proposed these rule changes does not appear to like voting by proxy.
i. Risks: Disenfranchisement and Loss of Legitimacy
The proposed amendments to the proxy voting rules may see smaller and more remote Bars feeling disenfranchised. Those of us who may perceive some of our members in far-flung-climes to be disinterested colleagues in the governance of the IBA (because of their geographic location and lack of professional facilities) need to dispel this perspective. Otherwise we will see the IBA fall into disrepute. We have to go the extra mile to be inclusive; this is not about diversity, it is simply putting the building blocks in place that will enable prospective members less fortunate than us, to join an organisation that could help develop their professional lot in life.
ii. Unfairness: Proposed Retrospective Application of the Rule-Changes
I am equally concerned that with the IBA electoral process for 2016 in full-flow, there are moves afoot to change the present proxy voting system with retrospective effect. (See paragraph 1.5 of Agenda Item No. 9). This is an astonishing proposition. There can be no justification for changing the electoral rules ex post facto. All candidates knew the rules and procedures before they accepted their nominations. To change the rules now would adversely affect some candidates more than others. Any result arising from an electoral system that changed half-way through the process will lead to the negative perceptions I discuss above. Therefore they cannot be permitted.
I note that at paragraph 2.6 of the Agenda Item No. 9, it is proposed that the amendments to the rules concerning electronic voting are to be prospective in their application in that they “shall not affect the elections process of Officers for which the nomination process has started earlier the year.” Implicitly, this acknowledges the risk of unfairness that may be visited on some candidates for office if the rules governing an election are unexpectedly to apply in an ex post facto fashion.
V. A Note on Amendments and Suggestions – “Where is the Mischief?”
It is particularly concerning that the proposed amendments have been suggested without any indication as to what ‘mischief’ they are intending to address. Ordinarily, amendments to a constitution arise out of a problem or a desire to improve the processes in place. At this time there is no indication as to what that problem may be. Conversely, there is no indication as to what the perceived benefits of the changes will be.
It is imperative that the IBA be cautious in how it manages its electoral and decision making processes. As lawyers we must aim for the highest standards of integrity. It is this goal that should underpin the IBA electoral process. The last thing we need is for the membership to be governed by cliques. When we are all pulling in the same direction, we can effect change and develop the IBA into a more attractive organisation for future membership.
In conclusion, I believe that the proposal to drastically narrow the scope of by proxy voting needs to be rejected. Moreover, I strongly object to the proposal to adopt these rules with retrospective effect.
Whoever the successful candidates are, they will not want a hollow victory acquired through a questionable electoral process. The contenders are all honourable individuals who would not wish to take office when the electoral process may be perceived as being unfair or undemocratic.
Martin S. Kenney
MARTIN KENNEY & CO., Solicitors