Justice innovation contradictions

11 November 2013

One way of stimulating justice innovation is to organise a competition. The jury have just finished deliberating about the winners of the 2013 Innovating Justice Awards and the Human Rights Tulip. On 11 December we will have the award ceremony.

This is the third time the HiiL Innovating Justice Award has been given out. And each consecutive year, a growing number of fantastic initiatives and ideas that strengthen justice delivery reach innovatingjustice.com, with an extra influx this year flowing from the new prize awarded by the Dutch Ministry for Foreign Affairs: the Human Rights Tulip. It is clear from the catalogue of innovations that has grown over three years that there is not only a huge untapped innovation potential in the justice sector but that there is also a lot of brilliant stuff actually happening. And it is happening locally, close to problems, unplanned and rather unstructured.

To name a random few: Mobile Judge from Mozambique, a TV based labour dispute solving mechanism that not only deals with conflict but also sensitizes people to the fact that they can be solved. Day in Court, a crowd sourcing system for legal aid. Parlements & Citoyens from France, which helps parliamentarians make laws, using the wisdom of the crowds. Systematic Trial Monitoring in Cambodia, a standardised trial monitoring system that makes visible how courts perform. An app against bullying in school in Mexico and an app for the rights of children in conflict. I could go on. Almost 100 of them, only this year.

What is noticeable is that none of the innovators indicate in their nomination forms that they were able to achieve what they did as part of an inspiring national innovation strategy. There is no talk of a supportive government-led policy framework that provided an enabling environment that helped with access to funding and other sustenance. There is no mention of leadership and direction provided by the minister of justice or the chief justice. In fact, many innovators rank these institutions amongst the resistance that needed to be overcome.

What might this be telling us? It might be an indication of the fact that ministers, law makers, and presidents of supreme courts don’t see themselves very much as justice innovation leaders. They are managers.

Let’s start with supreme courts. Two weeks ago I attended a solemn session to celebrate 175 of the Hoge Raad of The Netherlands (the Dutch supreme court). One of the things that stuck with me is how proud the speakers were of the fact that the Hoge Raad had gradually developed its role and the law: it reached its ripe age because it performed its three principal tasks – building legal unity, explaining the law and providing legal protection – slowly. Step-by-step and case-by-case. Never ahead of the troops. Because that is dangerous in the triangle between government, legislature, and judiciary. Change was almost always brought about through subtle legal constructions within the system; judgements and not new ways of doing things. A proposal to grant the supreme court powers of constitutional review has been circling parliament for years and will continue to do so. A plan for one supreme court instead of four has been a plan for a long time. We do not have amicus curiae briefs. All these proposals a grounded in a solid analysis of the justice environment and improvement of justice delivery, but both are stuck in the mud of vested interests.

One of the Advocates-General showed an illustrative graph that compared the relationship between the legislature and society, and the relationship between a supreme court and society:

The shape of the triangle elucidates that a supreme court stands at somewhat more of a distance from society than the government/legislator. And that, say the judges, is how it should be. The birthday ceremony of the Hoge Raad stood a long way off from the energy, urgency, and sometimes restlessness that comes from over 100 justice innovations. They batter the doors. They want to change and realize something that they feel is not being done.

What about government and the legislature? As I said, none of the justice innovators tell us that these institutions were important for what they did. The innovators’ funding sources do not indicate that either. This needs to be looked at more closely. The innovators respond to needs – acute ones that they see around them. That should concern the government and the legislature.

It may be that we are being told that there is a need for more room to experiment than lawmakers and government generally allow. That lawmakers, government and supreme courts can do more to support innovation through incentives, by providing leadership and vision. To the extent that supreme courts feel uncomfortable in this role, the former should step up to the plate. The future points in a direction of citizens with more voice and organising capacity. The ‘step-by-step’ and ‘let’s wait and then legislate’ approach may not be enough to sustain a vibrant, well functioning system of justice delivery. Justice innovators are banging at the doors. Note an innovative approach in Canada: the Canadian Bar Association recently issued a report Reaching Equal Justice which is not only visionary in terms of content, but also in terms of process. It provides vision: with a number of clear innovation targets for all justice innovators.

Justice innovators will be banging at the door if government does not act.

This blog first appeared on slaw.ca, Canada’s online legal magazine