Constitutive Factors

The foregoing requirement of intellectual integrity in the commission’s report is only a minimum requirement. Without proper institutional design, a commission could be biased from the beginning it sets its agenda, gather its information and conduct its debate, and will influence the constitution of the

61. Schuklenk, supra note 5, at ii.

62. Human Genetic Commission, Code of Practice for Members, http://www.hgc.gov.uk/Upload Docs/Contents/Documents/CODE%20OF%20PRACTICE%20FOR%20MEMBERS.pdf (last visited Aug. 31, 2009).

Commission’s substance. Hence, we further propose the following requirements in a commission’s institutional design:

(a) Diversity of Membership

An important feature for deliberative democracy is its commitment to allow all whose interests are affected to be heard. Hence, a necessary requirement for national commissions to realize the ideal condition for moral debate would be to bring in members that can reflect viewpoints of different perspectives. This institutional design corresponds to Gutmann’s principle of reciprocity and Cohen’s principle of deliberative inclusion discussed in the earlier part of this article that is most crucial to facilitate deliberation.

Again, George Bush’s PCB provides a lively example of what happens when the member is not diverse. As it reshuffled its membership more and more conservatively, its recommendation eventually was largely ignored by bioethicist and is often ridiculed by mass media.⁶³

Nevertheless, whether these members should be elected representatives or experts familiar with the perspectives at stake is a more difficult issue.

One model is to elect representatives from interest groups whose interests are affected, and to see the resulting decision as a compromise among different interest groups. But Dodds and Thomson argue that people may uncritically determine who gets to be represented simply by historical or cultural assumptions without sound justification.⁶⁴ This mentality tend to make lawyers or priests that have credential or higher social status one of the member, yet fail to include representatives from people with disabilities that lack credentials for their status, but whose voice may be more critical in bioethical issues. Hence, selecting members according to this model will allow representatives to pre-frame the debate of the issue and leave more pervasive problems and anxieties unaddressed.

Because of this reason, Dodds & Thomson favor a “contested deliberation model” where the issues to address and the representatives considered must be subjected to community hearings to before they can be appointed.⁶⁵ This model sets a high standard for diverse membership of these commissions, but they did not provide more information on how to prevent the issue of pre-framing in this additional procedure that is subject to public contest.

In any case, openness in the selection and appointment procedure would be useful to ensure the diversity of membership. In this regard, the Human Genetic Commission of the U.K. has opened its membership to anyone who cares to volunteer.⁶⁶ Although this does not guarantee those who volunteer

63. Schuklenk, supra note 5, at ii.

64. Dodds & Thomson, supra note 11, at 334.

65. Dodds & Thomson, supra note 11, at 335-37.

66. We gained this information from personal interview with Professor John Harris, a Member of

do become members, it may broaden the candidates’ pool and allow more people that are less socially visible but motivated enough to contribute their perspectives in the deliberation.

Yet, additional design would be needed to overcome the barriers of achieving a diverse membership. Cass Sunstein, for instance, raises a concern that members of a deliberating group may become more extreme after the process of deliberation, because people with similar opinions tend to reinforce each others’ opinions and opinions from people who are socially disadvantaged tend to be ignored in the group dynamic.⁶⁷ Hence, while he advocates that deliberation must have opinions that can reflect those of relevant groups, it is desirable to make room for enclave deliberation among socially disadvantaged people so that they can form enough confidence and strong arguments for deliberation among a more diverse group.⁶⁸

Facing these challenges, commissions should explore creative ways to broaden the scope of perspectives and opinions that can be considered beyond diverse membership. For instance, when a particular issue is most pertinent for minority communities, commissions can invite their representatives to participate in the discussion, or create sub-groups that include both members and external participants to look into the specific issue. In other occasions, commissions can also conduct public consultation to anticipate concerns of the general public that may not be reflected in the commissions’ membership. If necessary, commissions can even commission experts or social groups to present papers that can reflect important information or values that may be neglected in the membership.

Ultimately, there will also be a limit as to what perspective can be represented in a commission, and since people’s time and attention is limited, an appropriate level of heterogeneity should exclude opinions that are too invidious or implausible.⁶⁹ With limited members able to participate and the foregoing group dynamic that tend to reinforce majoritarian perspectives, these commissions may not be able to realize ideal condition of deliberation or reach any consensus. But at the minimum, diverse membership can foster a communicative democracy where people reach more understandings that allow better deliberation and cooperation in future dialogues.⁷⁰

the Commission. Although we cannot find official documentation from HGC’s website, similar information can also be found in Michael Fuchs’ survey of HGC. See FUCHS, supra note 33, at 31.

67. Sunstein, supra note 18, at 27-34.

68. Id. at 19-24.

69. Id. at 19.

70. Iris Marion Young, Communication and the Other: Beyond Deliberative Democracy, in DEMOCRACY AND DIFFERENCE: CONTESTING THE BOUNDARIES OF THE POLITICAL, supra note21, at 120, 128-33.

(b) Transparency

The institutional requirement of transparency corresponds with Gutmann’s principle of publicity. Ideally, this would require publication of members list so that their integrity is subject to public scrutiny after they assume the responsibility. Moreover, to be truly accountable to the public and facilitate deliberative democracy, commissions should make an effort to make the content and process of their reasoning as transplant as possible.

Such effort would include disclosing basic facts that they rely upon in languages understandable to the general public, detailed minutes of the process of discussion, and a well-written recommendation that reflects the perspectives taken into consideration, pros and cons that was being balanced, and the final conclusion. Particularly when there is serious disagreement among the members, commissions should also allow members of minority opinion to present dissenting opinions in the final report. The more transparent a commission’s operation is, the more thorough it can be subject to public scrutiny, hence the more accountable and trustworthy it will become.

(c) Public Participation

Some commission’s authorizing statute requires them not only to report to governmental agencies, but also to consult public opinions. For instance, the National Bioethics Advisory Commission of the U.S. was not required to incorporate public participation, but Australian Health Ethics Committee was legally required to do so.⁷¹

For public consultations to be meaningful, it is important to keep the public informed in advance of the basic facts involved, the issues that require deliberation, the agenda and timetable of the consultation, and ensure that relevant social groups have a chance to participate. Indeed, Dodd &

Thomson argues that these formal consultations usually do not allow genuine public participation, because the scope of public response usually are very limited, and only very limited groups will be approached and asked to respond.⁷²

Because of the foregoing limits, Dodds and Thomson’s “contested deliberation” model requires a three stage procedure where the issue, membership and deliberation will be each subjected to public scrutiny and that the final recommendation must take into account the viewpoints presented.⁷³ But again, although one can appreciate the extensive procedure that increases the opportunity and intensity of public participation, it is hard to see how they can avoid the public participation from becoming mere formalities.

71. Dodds & Thomson, supra note 11, at 330.

72. Id. at 335.

73. Id. at 335-37.

In fact, there may be a limit to what can be transparent and the degree of public participation. When Gutmann & Thompson raise the principle of publicity as a substantive principle to regulate deliberative process, they make it clear that this principle is acceptable only as a presumption, since sometimes secrecy is necessary.⁷⁴ Other than occasions that involve individual privacy, the most important justification for secrecy here is when secrecy is beneficial for deliberation.⁷⁵ For instance, people tend to be more creative and open without pressure from the public that tend to have high expectation.⁷⁶ Moreover, it is also easier for people to admit their ignorance and their need for more information without being embarrassed in the public.⁷⁷ Worrying that such justification may be abused, Gutmann &

Thompson thus argue that for such secrecy to be justifiable, in most situation an operating government can and should justify the necessity of secrecy to its public in advance, and subject its outcome to scrutiny after the decision is made in secrecy.⁷⁸

Indeed, to realize the idea of deliberative democracy, it is important not only to make sure that public participation is not compromised by unjustifiable excuses, but also to make sure that it is effective. This would require some innovation. For instance, to have a better grasp of experiences of people with genetic diseases, the Human Genetic Commission has invited people with such condition to volunteer as member of their consultative panel. Using different formats of public participation for different occasion and purpose, the Danish Board of Technology of Denmark has also developed formats such as citizen panel, consensus conference, and various other efforts to inform the public and simulate meaningful public participation.⁷⁹ Ultimately, to facilitate deliberative democracy, at least the final report must give reasons as well as its recommendations. Requiring more public consultation through effective forms would also reinforce representation of minority perspectives.