Lawyer on FOI rights. Suma Ciudadana. @javiercasas
The Judiciary is one of the most important institutions to strength the democracy. The judges decide about individual or collective rights, they give legitimacy to the activity of citizens, the State, the private sector, the media and all kind of fact powers. The judgments, analyzed in a comparative way, are important sources of information to understand the rights and the obligations of all citizens. But the judges also need to be controlled. They have a big power and is in the interest of the society to know how the judges resolve the cases submitted by citizens, and what their values or legal referents are.
The other side of the coin is the right of criticism of the judgments. A citizen right that is constitutionally recognized in some Latin-American countries as Peru, Nicaragua or Paraguay, but is also recognized in a wide way as a right of the academy or the judiciary stakeholders. The right to criticism is powerful but is underexploited because predominates the lack of information or the restricted access to organized documentation or information about judgments or the content of the judgments.
In fact we also can say that just information is not sufficient in order to promote participation or transparency. The information needs to be stored on a support (paper, magnetic, electronic, etc.). So, we need to talk about documents and archives because they must be ordered, classified, indexed and –very important- also easily accessible by stakeholders.
In different continents we can see a growing number of web databases that show judgments, especially in the human rights field. These databases are the new judiciary archives, made in the mood of the XXI century where is impossible to talk about transparency or participation without the technological perspective. At this time, the empowered people to dialogue easily with the technology are the ‘digital natives’, the people born after 1990 in the third world. So, the technological judiciary archives (or judgments databases) need to be designed in order to satisfy their needs.
For example, in Mexico the Supreme Court has made an excellent web tool of jurisprudence in collaboration with the Inter American Court for Human Rights. At the same time, in Africa, IHRDA, a pan-African NGO, promoted the Case Law Analyzer, a collection of decisions from the African Human Rights System. From Suma Ciudadana, a Peruvian NGO, we thought how to send judgments about the freedom of information right and the personal data protection right, to previously identified stakeholders, mainly Peruvians. Our strategy was to collect and organize in a free access web database, the judgments of the Peruvian Constitutional Court, and to link them with national laws and international courts judgments. From this year, the scope of the web tool will be strongly improved with the incorporation of two partners, Alfa-Redi and the Peruvian Scientific Network.
But we tend to forget that web tools are not magic and we also forget that their design must pass a previous review by representative groups of users. So, to ensure that the database responds to the needs of the stakeholders, we organized focus groups to know their opinion about the usefulness of the ‘app’. A main lesson learned during our work was that if we want to promote the citizen participation, we must think permanently how the people can be encouraged to participate in a process of change.
There is many ways to measure the citizen participation. For example, the citizen participation has different levels according to the spectrum of public participation made by the International Association for Public Participation. The first level says, “to provide the public with balanced and objective information to assist them in understanding the problem, alternatives, opportunities and/or solutions”. The final level places the decision-making in the hands of the society.
So, normally in all countries where databases are appearing in the Judiciary field, is realistic to ensure just the first step of the ‘spectrum’ of citizen participation: to inform. In a second term, the academy or specialists can exercise the right to criticize the judgments and improve the standard of the sustenance of the judgments. Obviously it is difficult to think that judgments will be made by the citizens, but if the stakeholders put the lights on the judgments and they promote the dissemination and comment of this information, perhaps is possible to reduce or to fit the discretion of the judges. It could be also possible to create conditions for a ‘natural selection’ of judgments where the best (the better sustained judgments) will remain and the worst will disappear. This kind of citizen participation can enhance the predictability of the judgments because the judges will to know that their activity is monitored rigorously.
In this sense, to create databases of judgments is a way to transform a situation where the information is not exposed properly and not circulates through the appropriate channels of communication, and where the citizen participation is not more than speculation or just a hope.