Exploring Open Justice, a New Frontier in Open Government Reform

You likely know what the terms “Open Government” and “JusticeTo address barriers that prevent citizens from having their justice needs met, OGP participating governments are working to expand transparency, accountability, and inclusion into all systems of justi...” mean, but looking at the title of this blog, you might be wondering: “what exactly is open justiceAn open, independent, and impartial justice system serves as a foundation for better access to justice by fulfilling all people’s civil liberties and allowing individuals to more effectively protect... reform, and why should I care about it?” By the end of this blog series, you should have a strong grasp of: 1) what open justice reform consists of, 2) the benefits it provides, 3) its status quo, and 4) how to craft strong OGP commitments related to open justice. This blog post in particular will tackle the first two elements. If you wish to learn more about open justice, check out my piece entitled: “A Guide to open justice,” available soon online.

The Case for Open Justice Reform

At its most basic level, open justice reform consists of efforts designed to encourage greater accountability and transparencyAccording to OGP’s Articles of Governance, transparency occurs when “government-held information (including on activities and decisions) is open, comprehensive, timely, freely available to the pub... More in justice systems, often through leveraging technology and innovation along with citizen participationAccording to OGP’s Articles of Governance, citizen participation occurs when “governments seek to mobilize citizens to engage in public debate, provide input, and make contributions that lead to m... More. Such reform seeks to expand access to justiceAccessible justice systems – both formal and informal – ensure that individuals and communities with legal needs know where to go for help, obtain the help they need, and move through a system tha... More and ensure a universal rule of law in a manner consistent with the values of the majority while safeguarding especially the rights of the minority. Ultimately, among the many desired outcomes of open justice are greater governmental legitimacy and associated increases in public trust towards governmental institutions.

Indeed, a growing body of evidence shows that fulfilling open justice aims, like increasing access to justice, correlates strongly with better development outcomes . Despite this, as of today, open justice commitments account for barely 3.56% of all OGP IRM-reviewed commitments (“A Guide to Open Justice” 8).

The case for open justice reform includes the following benefits:

For governments:

• Fulfill the social contract: Reforms that empower the judiciaryWhile a majority of open government reforms occur within the executive branch, OGP members are increasingly taking on commitments to increase the openness of the judicial branch. Technical specificati... to fulfill its obligations in safeguarding fundamental rights against all threats, including those from other branches of government, enable fulfillment of the social contract between governments and the parties they govern.

• Comply with international obligations: UN member states came to an agreement in September 2015 to “promote the rule of law at the national and international levels and ensure equal access to justice for all.” This Sustainable Development Goal (16:3) “recognizes the intrinsic links between access to justice, poverty reduction and inclusive growth.” (https://www.oecd.org/gov/delivering-access-to-justice-for-all.pdf 3) open justice reforms directly target those SDG obligations.

• Improve service provision: In conducting their functions, justice systems act as public service providers. From this angle, the benefits of open justice reforms could reflect the benefits of open government efforts within the context of public service deliveryTo ensure that citizens of all groups are better supported by the government, OGP participating governments are working to improve the quality of and access to public services. Commitments in this are... overall. Moreover, reforms that add a crowdsourcing element to, for instance, judicial auditsInstitutional and legal frameworks are necessary for providing assurance of the integrity of financial information and of compliance with budgetary rules and procedure. Technical specifications: These..., enable more non-governmental sources of scrutiny. The additional sources can provide additional, granular layers of accountability in ways that would be infeasible for governments to do internally due to cost or other logistical difficulties.

• Open up new channels for insight: Reforms that open up policy feedback mechanisms to the public allow for new insight that can inform subsequent policy agenda-setting. In addition to creating the possibility of valuable insight, these reforms can also give voice to previously unheard and marginalized populations.

For businesses:

• Face lower transaction costs:  Fewer indeterminacies in case disposition lead to more informed decision-making for businesses, and a greater likelihood of profitable transactions.  

For the media, civil society organizations, law firms, and think tanks:

• Gain access to crucial data sets: Reforms that open up previously hidden or restricted justice system data, related to, for example, arrest statistics and case dispositions, provide invaluable opportunities for researchers and advocates in civil society to inform themselves better and refine their efforts. The ability to identify positive and problematic trends in the justice system can enable advocacy groups to use their resources more effectively to target issues of greater relevanceAccording to the OGP Articles of Governance, OGP commitments should include a clear open government lens. Specifically, they should advance at least one of the OGP values: transparency, citizen partic..., backed by solid evidence.

• Better represent and ensure justice for clients: Robust case management systems that enable litigants and their counsel to track the progress of their case give law firms and advocacy organizations crucial tools to ensure their clients receive due process and any relief to which they are entitled.

For citizens:

• Gain understanding of relevant information: As members of society desiring to inform themselves and engage in political action, citizens benefit from reforms that open up justice system data by presenting information regularly in understandable ways. As litigants, citizens benefit from reforms that create understandable, easy-to-use case management systems that seek to inform them of their rights at each stage of their case.

• Empower citizens as valuable participants in collective action: Reforms that create effective citizen feedback mechanisms help channel citizen input and interactions with government actors in constructive ways that lead to greater trust through creating better public policy. These reforms can change the dynamics between governments and their citizens from one of antagonism to one of collaboration.  

For all justice system stakeholders:

• Ensure judicial integrity and overall government accountability:
  Reforms that increase scrutiny of judicial actors like judges, prosecutors, ombudsmen, and court administrators help to ensure judicial integrity and overall accountability.

• Create channels for more inclusive engagement across all sectors of society: When reforms create mechanisms for scrutiny and feedback from previously disenfranchised groups with respect to matters such as police conduct or judicial bias, they permit more inclusive engagement of justice system stakeholders.  Such inclusive mechanisms can take the form of greater democratic representation either in helping to determine the values and standards underlying a justice system or in monitoring “gaps” and filling-in “loop-holes” in its implementation (http://www.anticorruption-helpdesk.eu/content/enhancing-judiciarys-ability-curb-corruption-practical-guide 9).
   

• Foster greater social trust and economic activity among justice system stakeholders: When reforms assure that access to justice exists for and the rule of law applies to all stakeholders equally and consistently, a more even legal playing field exists upon which all sectors of society can interact and transact with one another. This creates greater trust between all societal stakeholders with less potential resentment arising from perceived favoritism within the justice system. The economic and social benefits that arise from the greater trust and transactions can then accrue to all sectors of society as well.