my Say: Holding due process accountable

This article first appeared in Forum, The Edge Malaysia Weekly, on July 6, 2020 - July 12, 2020.
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Amid the Black Lives Matter (BLM) protests in the US a few weeks ago, in the academia section of the Economics universe, University of Chicago professor Harald Uhlig set off a firestorm.

In a series of tweets, he stated his opposition to a popular policy proposal put forth by the BLM movement. The policy proposal was Defund the Police (DTP) — aimed at reducing funding to police forces across the country in the wake of police brutality. DTP is a complex, multi-angle issue and requires some serious debate. And that is where Uhlig comes in.

On his Twitter account, he voiced his opposition to the DTP proposal by the BLM movement: “Too bad, but #blacklivesmatter per its core organisation @Blklivesmatter just torpedoed itself with its full-fledged support of #defundthepolice: ‘We call for a national defunding of police.’ Suuuure. They knew this is non-starter, and tried a sensible Orwell 1984 of saying, oh, it just means funding schools (who isn’t in favour of that?!?). But no, the so-called ‘activists’ did not want that. Back to truly ‘defunding’ thus, according to their website. Sigh.

“#GeorgeFloyd and his family really didn’t deserve being taken advantage by flat-earthers and creationists. Oh well. Time for sensible adults to enter back into the room and have

serious, earnest, respectful conversations about it all: for example, policy reform proposals by @TheDemocrat and national healing. We need more police, we need to pay them more, we need to train them better. Look: I understand, that some out there still wish to go and protest and say #defundthepolice and all kinds of stuff, while you are still young and responsibility does not matter. Enjoy! Express yourself! Just don’t break anything, ok? And be back by 8pm.”

This led to a heated backlash from other economists who responded by condemning the disrespectful and mocking tone taken by Uhlig in his tweets. There was another response — a petition to the Journal of Political Economy (JPE), of which Uhlig is editor-in-chief, to call for his resignation. The JPE is one of the “Top 5” economics journals in terms of citations and readership and is often used as a distinguishing marker for promotions in academia.

The call for Uhlig’s resignation in that petition was as follows: “[Uhlig’s comments and Twitter posts] hurt and marginalise people of colour and their allies in the economics profession; call into question his impartiality in assessing academic work on this and related topics; and damage the standing of the economics discipline in society. We do not question the right of Prof Uhlig to make such comments, but we are strongly opposed to him holding a position of power as the editor of a prominent journal in our discipline.”

This petition itself launched its own series of reactions.

A personal example is a Whatsapp group with my graduate school friends, where the call for Uhlig’s resignation led to a spirited discussion on due process. There were some who were troubled by the petition itself, where professional, non-popularly-elected positions in institutions such as the JPE could be affected by popular pressure, as opposed to “due process” in reviewing those positions.

The argument was essentially that whatever deliberations on any position should follow due process, and a petition by those who may or may not be members of that institution, or have a say in the decisions of that institution, does not constitute due process.

To be clear, following due process is important in ensuring that we follow a consistent and systematic set of rules in decision-making, as opposed to an anything-goes system. Due process is a human creation, however, and human creations are necessarily imperfect. Falling back on and strictly following due process that may have systematic problems may mean that the optimal decision, or the most just decision, might not be achieved.

There are two main reasons for this. The first is that due process, as a human creation, is naturally biased towards survival and self-preservation. Those that create due process are typically those who are already in authority, who then create these processes, typically to maintain some order.

However, there is a natural tendency for those in authority to create processes, wittingly or otherwise, in favour of themselves covered by some principle of fairness. As such, due process tends to protect those in authority and is rarely invoked in favour of those who are not in authority against those who are. Examples abound everywhere around the world.

The second reason is that any set of rules of the game or due process by any institution can be discriminatory in practice, even if created with the best of intentions and principles. An article by Harvard sociologists Mario Small and the late Devah Pager points out that the Economics literature tends to view racial discrimination as an individual-based discrimination. They argue, however, that this view is incomplete and institutional discrimination is also worth examining in detail.

In the paper, they state that institutions can discriminate when they “[institute] practices, formally or informally, that

treat people of different races differently, regardless of whether the practices were driven by prejudice and regardless of whether the managers, directors or employees following the norms are themselves racially prejudiced.

“Many organisational processes with discriminatory consequences have a similar form: An institutional practice that is in theory race-neutral affects racial minorities because it is applied in a context with a pre-existing racial difference, gradient or level of segregation.”

To be clear, discrimination here need not be just racial — it can be based on gender, class, education, sexual preference and much more.

For example, let us suppose a company says, “We will hire only individuals who score at least 9A+ in the SPM.” On the surface, it seems like an unbiased principle, at least from the perspective of meritocracy. But what it ignores is that there is a whole context of social issues that go into scoring 9A+ for the SPM.

Students from wealthier families get extra tuition, go to better public schools (high correlation with neighbourhood house prices), do not have to support their family with part-time work and so on. And over time, the company as an institution builds a practice of income-based discrimination masquerading as fair meritocracy even if none of its employees meant to discriminate. Meritocracy has its strong positives, for sure, but it also comes with social issues that need to be contextualised.

Harald Uhlig was cleared by the JPE and, indeed, his position was reviewed not because of his tweets but because of his conduct in a classroom setting. I’m happy to give the benefit of the doubt to the JPE that it followed its own due process. But let us not forget that everywhere around the world, a seemingly fair due process might be masking a whole range of institutional issues, especially when they have been built up over time.

Historical discrimination can have serious contemporary consequences via arcane laws or outdated organisations, which research shows can then affect our cultural norms. We need to be more critical of institutions, however “fair” they may purport to be.

Nicholas Khaw is an economist with the Khazanah Research and Investment Strategy division

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