We are coming down to the last week for JTC1 to decide on whether to hear the four NB appeals concerning various claimed errors in the processing of DIS 29500 (OOXML), or whether summarily to dismiss these appeals without hearing them. The decision lies with two committees, the Technical Management Board (TMB) in ISO and the Standards Management Board (SMB) in the IEC.
Back on July 4th, the Secretaries General of ISO and the IEC referred the four NB appeals, with their comments, to the TMB/SMB. Groklaw has the text of these comments, in PDF format, as well as HTML transcription.
The comments of the Secretary General are accompanied by a ballot, asking the question:
ACTION
The members of the Technical Management Board are invited to indicate, by replying yes, no or
abstention on EITHER a) OR b) for each of the four appeals (see item 14 in annex A):a) not to process the appeal any further:
Item 1 ABNT
Item 2 BIS
Item 3 FONDONORMA
Item 4 SABSOR
b) to process one or more of the appeals, which would require setting up of a conciliation panel
Item 5 ABNT
Item 6 BIS
Item 7 FONDONORMA
Item 8 SABSby no later than 4 August 2008.
This is quite a strange animal to see. Why are we having a ballot at all, and only a 30-day one? This is questionable from several perspectives.
First, why are the Secretaries General the ones calling for a ballot? The Directives do not call for them to do so. In fact the Secretaries General are not even called upon to make a recommendation. They are only asked for comments. The Directives say:
11.3.3 The Secretaries-General shall, following whatever consultations they deem appropriate, refer the appeal together with their comments to the TMB/SMB within one month after receipt of the appeal.
11.3.4 The TMB/SMB shall decide whether an appeal shall be further processed or not. If the decision is in favour of proceeding, the Chairmen of the TMB/SMB shall form a conciliation panel (see 9.2).
But deciding is not the same as voting. One of the cardinal principles of JTC1 is to discuss and seek consensus, not rush to a vote. Indeed, this is one of the matters under appeal, the rush to voting at the OOXML BRM. JTC1 Directives, section 1.2 says (my emphasis):
These Directives are inspired by the principle that the objective in the development of International Standards should be the achievement of consensus between those concerned rather than a decision based on counting votes.
But here we are, with a vote pushed on the TMB/SMB.
The sense of the vote is wrong as well. The Directives call for a decision on “whether an appeal shall be further processed or not.” Note the wording. It did not call for a decision on “whether to accept the recommendation of the Secretaries General”. But somehow, we skip discussion, skip over consensus and get a ballot question which asks the opposite question first “not to process the appeal any further”. In an environment where many parties automatically vote Yes to the ballot question, changing the sense of the question in this way is prejudicial to the appellants.
So it is clear from the start that the powers that be do not want to give these four NB’s the opportunity to make their case or be heard. In any case, let’s take a deeper look at some of the subjects under appeal and see if we can detect what it is exactly that cannot bear the scrutiny of a duly processed appeal.
First up is the alleged mishandling of the contradiction period last year. The Secretaries General dismiss this complaint, saying that it was a matter of judgment:
The Directives give the JTC 1 Secretariat and ITTF latitude to use judgement as to whether a meeting should be organized to address alleged contradictions. Considering that other issues could potentially be identified during the DIS ballot, the JTC 1 secretariat and ITTF concluded that it was preferable to initiate the ballot and to allow all issues to be addressed by the BRM. The NBs were fully informed of all the claimed contradictions and Ecma’s responses to them.
This argument doesn’t hold water. Although the JTC1 Secretariat and ITTF are allowed judgment, this is not an absolute license which cannot be questioned. The Secretariat and ITTF also have defined duties, and their actions or inactions with respect to these duties can be questioned and are subject to appeal. Specifically, an NB may appeal the issue of an inaction of JTC1, according to JTC1 Directives, 11.3. So for the Secretaries General to suggest that this inaction cannot be appealed because it is a matter of judgment is nonsense. Judgment and duty are the proper matters for an appeal.
So what is the duty in this case? As stated in JTC1 Directives, 13.4:
If a contradiction is alleged, the JTC 1 Secretariat and ITTF shall make a best effort to resolve the matter in no more than a three month period, consulting with the proposer of the fast-track document, the NB(s) raising the claim of contradiction and others, as they deem necessary. A meeting of these parties, open to all NBs, may be convened by the JTC 1 Secretariat, if required.
If the resolution requires a change to the document submitted for fast-track processing, the initial document submitted will be considered withdrawn. The proposer may submit a revised document, to be processed as a new proposal.
If the resolution results in no change to the document or if a resolution cannot be reached, the five month fast-track ballot commences immediately after such a determination is made.
The Directives call for the JTC1 Secretariat to make a best effort to resolve the matter (JTC1 Directives, 13.4). The JTC1 Secretariat is not given latitude to do nothing, or allowed discretion to immediately defer this question to the ballot period, without making a best effort to resolve the matter.
When a new 6,000 page DIS is submitted to JTC1 only one month after the publication of another standard (ODF) in the exact same space (XML document formats for office applications) and 19 NB’s submit contradiction statements, and the JTC1 Secretariat’s “best effort” is to hold no consultations with the NB’s claiming contradictions, to hold no meeting, to make no attempt to resolve the question, then I believe that any NB would has a legitimate grounds for appeal on the inaction of JTC1 with regards to contradictions. There is no evidence that a “best effort” was made here to resolve the contradictions. Doing nothing is clearly incompatible with the required “best effort”.
It should be noted that JTC1 has had challenges in the past getting ITTF to carry out their responsibilities with respect to contradictions, which lead to this resolution adopted unamimously at the 2000 JTC1 Plenary:
Resolution 27 – Consistency of JTC 1 Products
JTC 1 stresses the strong need for consistency of its products (ISs and TRs) irrespective of the route through which they were developed. Any inconsistency will confuse users of JTC 1 standards and, hence, jeopardize JTC 1’s reputation. Therefore, referring to clauses 13.2 (Fast Track) and 18.4.3.2 (PAS) of its Directives, JTC 1 reminds ITTF of its obligation to ascertain that a proposed DIS contains no evident contradiction with other ISO/IEC standards. JTC 1 offers any help to ITTF in such undertaking. However, should an inconsistency be detected at any point in the ratification process, JTC 1 together with ITTF will take immediate action to cure the problem.
Perhaps it is time to give ITTF another reminder of their obligations in this regard?
Further, the determination claimed to have been made by the JTC1 Secretariat and ITTF was not communicated to JTC1 NB’s. Instead, the JTC1 Secretariat merely forwarded Ecma’s responses to the contradiction submissions along with a notification that the DIS ballot should then commence. No statement was made as to whether the ballot was commencing because the contradictions had in fact been resolved, or because a resolution could not be made, which are the only two outcomes allowed by the Directives in 13.4. Not to notify NB’s of the actual state of the resolution of the contradictions submissions is incompatible with the JTC1 Secretariat’s duty to make a best effort to resolve the matter.
This failure by JTC1 materially effected the ensuing ballot, since Microsoft was then able to take advantage of this procedural nonperformance and repeatedly represent to NB’s that the contradictions had been rejected as invalid and could not be considered in the DIS ballot. In fact, this led to several NB’s issuing explicit, but erroneous instructions to their members that the contradictions had been resolved and thus could not be raised again as a criterion for determining their national position, e.g., in Australia.
Further, although the Secretaries General claim that “the JTC 1 secretariat and ITTF concluded that it was preferable to initiate the ballot and to allow all issues to be addressed by the BRM” the documented fact is that the BRM Convenor explicitly disallowed any discussion of contradictions at the BRM.
Another subject of appeal was the irregular voting procedures used at the DIS 29500 BRM in February. This is the P-member versus O-member question. The Secretaries General dismiss this appeal in this way:
2e. Correct but inapplicable. The BRM was neither a meeting of JTC 1 nor of SC 34 but was open to all 87 national bodies which submitted a vote (including abstentions) on the DIS. Applying 9.1.4 would have disenfranchised the voting NBs present at the BRM which were not P-members. The fact that any votes in the BRM would be open to all national delegations present was communicated over three months prior to the BRM.
This argument presented is flawed, and amounts to saying, “The voting was done by P- and O-members because the meeting was attended by delegations from P- and O-members”. Who attended the meeting is immaterial. Liaisons such as Ecma also attended the BRM? Should they have been able to vote merely because they attended? No, of course not. Voting rights are defined in JTC1 Directives, and this must not be set aside in favor of an ad-hoc rule made without NB consultation or approval.
Asserting that applying 9.1.4 would disenfranchise NB’s is an example of circular reasoning. One can only be disenfranchised if one first has the right to vote. So the statement by the Secretaries General is arguing a conclusion (O-members are permitted to vote at BRM’s) by assuming the very thing it tries to prove.
JTC1 Directives 14.4.3.9, which defines the parallel BRM process for the Publicly Available Specification (PAS) transposition process, reads: “At the ballot resolution group meeting, decisions should be reached preferably by consensus. If a vote is unavoidable, the approval criteria in the subclause 9.1.4 is applied.” So here we see 9.1.4 explicitly called for. By the argument put forth by the Secretaries General, all PAS BRM’s which follow the Directives are also flawed because they “disenfranchise” those NB’s who are not P-members of JTC1. I believe this is a tortured reading of the Directives. The voting rules of 9.1.4 are explicitly and unambiguously called for in PAS BRM’s, so one cannot dismiss their application to Fast Track on general principles that would apply equally to PAS. When Fast Track rules say that the BRM vote shall (“if a vote is unavoidable”) “be taken according to normal JTC 1 procedures” then we are faced with two alternatives:
- Use the voting rules of 9.1.4, which declares itself to be the normal voting procedures (“In a meeting, except as otherwise specified in these directives, questions are decided by a majority of the votes cast at the meeting by P-members expressing either approval or disapproval.”)
- Or use a voting rule which is not to be found anywhere within the Directives.
Which one is “normal JTC 1 procedures”? Where is the basis in the Directives for believing that O-members had the right to vote at the BRM?
Finally, neither BRM Convenor, Alex Brown, nor ITTF, nor indeed the assembled delegations at the BRM were competent nor had the mandate to make or change voting rules for a DIS BRM. The rules are set in JTC1 Directives, and must be followed. “These Directives shall be complied with in all respects and no deviations can be made without the consent of the Secretaries-General.” (JTC1 Directives 1.2).
Notifications made by the BRM Convenor in advance of the BRM have no weight on matters which exceed his mandate and authority. The communication referred to by the Secretaries General, which was given in advance by the BRM Convenor, was from this FAQ:
6.8 If votes are taken during the BRM, who votes?
Those present.
This in fact was not the rule applied at the BRM. For example, Liaison representatives could not vote, though they were undoubtedly present at the BRM and participated fully in other ways. Also individual participants could not vote, only delegations, via their HoD could vote. So the Convenor’s glib communication should not be taken as notification of a novel voting procedure.
Additionally, the BRM Convenor was unambiguous in his communications on his blog where he clearly stated that the voting rules of 9.1.4 would be applied:
…Now, paper balloting follows normal JTC 1 in-meeting rules: In a meeting, except as otherwise specified in these directives, questions are decided by a majority of the votes cast at the meeting by P-members expressing either approval or disapproval. (9.1.4)
(After the BRM the Convenor dutifully went back and “corrected” his earlier blog post to reflect how the BRM actually operated.)
The Secretaries General further dismiss the concerns regarding BRM voting procedure, saying:
4e. Not correct. Decisions on the comments not discussed during the BRM and proposed dispositions were taken by a process agreed by the BRM itself (29 votes in favour, none against and 2 abstentions).
On the contrary, the BRM was not competent and had not the mandate to set its own voting rules or to negate the provisions for consensus stated in JTC1 Directives 1.2:
These Directives are inspired by the principle that the objective in the development of International Standards should be the achievement of consensus between those concerned rather than a decision based on counting votes.
[Note: Consensus is defined as general agreement, characterised by the absence of sustained opposition to substantial issues by any important part of the concerned interests and by a process that involves seeking to take into account the views of all parties concerned and to reconcile any conflicting arguments. Consensus need not imply unanimity. (ISO/IEC Guide 2:1996)]
The Directives specify the rules. If NB’s do not like the rules, then NB’s may work with SWG-Directives to define new rules and then vote on them using the defined process. But if the rules are not applied correctly, then the proper course is for NB’s to appeal against the actions or inactions of those with a duty to carry out the rules. This is the essential governance model of JTC1. NB’s rule, but they rule through the rules. We may not merely decide by majority vote to ignore rules for this DIS, or to institute new rules for that DIS, or to substitute different rules for another DIS, in an ad-hoc fashion, based on a BRM vote.
Using the logic given by the Secretaries General, what in principle would prevent a BRM from voting itself an Augur in addition to a Convenor for the purpose of observing the flights of birds to decide whether a given change to the DIS text was auspicious or not? Is there any voting procedure that would not be permitted them once we say that a BRM, by majority vote, can institute their own voting rules? Are TMB/SMB certain that this is the principle that they want affirmed by their rejection of the NB’s appeals?
Further, NB’s were not duly notified that their BRM delegations would be determining their own voting rules, so few if any of them had NB instructions on that matter. An agreement among BRM HoD’s to set aside cardinal principles of JTC1, in the absence of NB consultations, should not be allowed to stand.
Finally, the existence of a vote at the BRM is not incompatible with the assertion that the BRM was “too short, arbitrarily short, or otherwise incorrectly conducted”. When given the choice between several bad alternatives, the delegations made a choice. That does not legitimatize the flawed application of JTC1 process that incorrectly gave them only bad choices and forced upon them a vote which they did not have the mandate to hold.
I could go on and on, but I’ll spare you all more of the same. I am sorry to report that I find the response by the Secretaries General to be perfunctory, poorly reasoned and self-serving. It does not serve to resolve the issues, including important issues where clarification is needed. Majority rule, within the rules, should be encouraged. But to dismiss legitimate complaints by arguing that the majority agreed to not follow the rules, this is to substitute mob rule (or orchestrated monopoly rule) for the rule of law. We know where that leads to — curtailed rights for those with minority opinions. And that should concern everyone.
The Secretary General of ISO, Alan Bryden, retires at the end of the year. August vacation is approaching, and before you know it there will be a retirement party with the cake and gifts, maybe a wall plaque or pewter paperweight. I am sure he does not need or desire to spend more time being reminded of the OOXML disaster that occurred during his last year at ISO. TMB/SMB members all want vacation as well. So do I. But out of respect for Mr. Bryden’s eventual successor, and our shared mission in JTC1, shouldn’t we urge TMB/SMB to do their job and not leave this all unresolved for the next guy to deal with? Dismissing an appeal with so many open unresolved issue is not expediency. It is merely creating more dissent, more distrust and more trouble that we’ll all need to deal with next time around. It is better, I think, to hear the appeals, get to the bottom of this, seek resolution, consensus and closure, and then to move on. Ignoring mistakes will not make them go away.