The Latest on TIPNIS and Reflections on Procedural Justice

While visiting a community in the “colonized” zone of TIPNIS on Tuesday, President Evo Morales reintroduced the idea of resolving the debate through departmental voting.  Shortly thereafter, Vice-President Álvaro García Linera and several MAS legislators threw their weight behind the idea, giving it the air of an item on the official political agenda.

When Evo floated this idea in late 2011, it met with firm opposition and gradually faded away.  Though the idea superficially sounds in democratic decision-making, a closer look reveals injustice.  Even if one supports the idea of a road through TIPNIS, commitment to procedural fairness precludes the path proposed by the government.

Though a full discussion of procedural justice entails loads of nuance – John Rawls describes at least three schemes, all potentially just: perfect procedural justice, imperfect procedural justice, and pure procedural justice – the mistake made by Evo is fairly basic.  Whatever theory we embrace, the notion that rules should not change mid-game, absent compelling reasons, is a common denominator.

How has Evo tried to change the procedural rules surrounding the TIPNIS conflict?  He has done so in at least two ways: (1) by championing a constitution that explicitly gave indigenous communities a say-so in development decisions within protected areas, and then failing to provide the consultation so mandated; and (2) by finally embracing the idea that the consultation would only solicit input from TIPNIS residents, and now changing course.

These inconsistencies should be enough to make even a die-hard supporter of the road question her position.  Just as victory in a sports contest doesn’t taste so sweet when it is the result of a blown call, faulty legal process taints an outcome that we might otherwise appreciate.

And for those who are on the fence – or simply don’t care whether the road is ultimately built – the situation is equally troubling.  To lift again from Rawls, one might observe a dice-game and have no interest in who wins.  Indeed, the nature of the game presupposes an inability to judge the fairness of the game based upon its result:  “there is no independent criterion by reference to which a definite outcome can be known to be just.”  John Rawls, A Theory of Justice 75 (Harvard 1999).

Tinker with the rules, though – load the dice, what have you – and you will offend the observer’s sense of justice.  In situations of pure procedural justice, where there is no right or wrong result, “a fair procedure translates its fairness to the outcome only when it is actually carried out.” Id.

Although I tend to line against the road through TIPNIS for substantive reasons, I am willing to see how some might view the question as one more properly analyzed from the perspective of pure procedural justice.  And, as I suggested above, rules might properly be changed mid-stream in the face of compelling reasons.

The Morales administration is, in effect, making this very argument.  To justify the idea, Morales said on Tuesday that it made sense for everyone in Beni and Cochabamba to vote on the road because the residents of these two departments would be the ultimate “beneficiaries.”  In contrast, according to Evo, polling the residents of TIPNIS would potentially allow “small groups” of opponents to veto the desires of the majority (perhaps not within the park itself, but within the two departments that would be connected by the road).

Putting aside the question of how compelling the reasons must be to justify changing the rules – there may be a thumb on the scale in favor of the status quo – there is the more basic question of whether this argument holds water in the first place.  I contend that it does not.

Granted, the millions who live in Cochabamba and Beni would, as Morales indicates, be the prime beneficiaries of this project.  But would they also suffer the severest of its consequences?  When deciding who should have a say in the matter, we would presumably agree that it would be improper to hand the decision over to the potential “winners” while muzzling the “losers.”

One of my current academic works focuses on this very topic.  Like all big public projects, environmentally-sensitive projects – roads, dams, power plants, etc. – imply winners and losers.  It is my contention that the upsides of these projects are often quite diffuse, inuring to the benefit of large regions or even entire nations.  The downsides, in contrast, are often concentrated in relatively small areas.

Energy projects are perhaps the best example.  When China built the Three Gorges Dam, the whole country received cheaper energy; it was only the relatively small group of citizens living upstream in the reservoir site who felt the negative consequences most directly, being forced to relocate.

What does all this have to do with TIPNIS?  Well, to my way of thinking, Evo’s approach is precisely contrary to what should happen in light of the distribution of benefits and detriments in the context of environmentally-sensitive public works.

If we agree that the decision should place more weight on the sentiments of those with the biggest stake – those with the most to lose – then a two-department referendum makes no sense whatsoever.  It has the effect of diluting the most important voice in the room.  Of course, that’s the whole point.

-NF

UPDATE:  Not entirely related, but I found this analysis today while scanning the blogosphere on the TIPNIS front.  Looks to be worth a close read.