Why to hack a Supreme Court

20/07/2017 by pablo.cerdeira@gmail.com

Versão em português disponível aqui.

Civic hacking projects using data from public institutions can support the implementation of major changes. Sometimes a single computer and some technical skills are enough. The Supreme Court in Numbers Project, which promoted deep changes in the fight against impunity, the reduction of lawsuits overload on the Supreme Court, and greater transparency in the Brazilian Judiciary, started like this. The goal of this text is to demonstrate that with the technologies that we have available today, anyone with knowledge and willingness could initiate similar projects.

Let’s look at some examples of socially desirable impacts that can be brought about by civic hacking projects.

Hacking the Supreme Court

In recent years, the Supreme Court has changed its view on the enforcement of sentences after the Appellate Court decisions - which is fundamental to encourage whistleblower collaboration agreements and to the enforcement of the “Lei da Ficha Limpa”. There was also a proposal to amend the Constitution - PEC 15/2011, or PEC dos Recursos - that limits the quantity of appeals in our Judiciary.

The National Council of Justice (CNJ) launched, at the end of past June, the report and the app Supreme in Action, with analysis of the performance of the Supreme Court and its Justices. All of this will, little by little, make our Judiciary more attentive to the demands of society, as well as both more democratic and republican.

Of course, these changes have been under discussion in the public ethos for a long time. But it is undeniable, and sometimes even explicit, that the Supreme Court in Numbers collaborated to bring it to the light.

The Closed Supreme Court

Between 2005 and 2009 I worked at the National Council of Justice as chief of staff to the Counselor Joaquim Falcão. There we followed the elaboration of the Justice in Numbers Annual Report, an initiative of the then-Justice Nelson Jobim. However there was a curious aspect to that report: the absence of data from the Supreme Court.

The reason was simple: according to the Brazilian Constitution, the Supreme Court is the highest body of the Judiciary, and it would not be up to the National Council of Justice - hierarchically inferior to the Supreme Court - to analyze and disclose its data.

It was only in 2009 that the CNJ finally included Supreme Court data in the Justice in Numbers Annual Report. But not without a reaction. At the session of September 9, 2009, Justice Marco Aurélio expressed his opposition to the publication.

According to the Agência Estado, Justice Mauro Aurelio would have said: “I cannot conceive that the Supreme Court will be placed on the National Council of Justice’s website as if the Supreme Court was submitted to that body. It is not. The Court is supreme. We are not accountable to the National Council of Justice”

It is important to note that the same speech was transcribed differently by the “Consultor Jurídico“ website, more precisely: “I cannot conceive that data from the Supreme Court be placed on the National Council of Justice‘s website, as if the Supreme Court was submitted to that. We are not accountable to the National Council of Justice”.

It takes attention to notice the subtle difference. In the second transcription, Justice Marco Aurélio speaks explicitly of “data”. The reporter who produced the first article, from Agência Estado, suppressed the word “data”, probably in good faith, understanding that including the data of the Supreme Court in the Report of the National Council of Justice would be the same as submitting the Supreme Court itself to another body.

Justice Marco Aurélio’s remark was correct. To let the National Council of Justice control the data of the Supreme Court would be the same as submitting the latter to the former. Still, the alternative is not the non-disclosure of the data, but to provide it openly and broadly to the whole society.

It was in this context that I had the initiative to create the Supreme Court in Numbers.

Hacking for good

In 2009 I had returned to Getulio Vargas Foundation, after a few years at the National Council of Justice, with the purpose of using data to develop new models of social and democratic control over public institutions.

As all data from the Supreme Court’s cases since 1988 were available on their website, although only for individualized consultations, I decided to create virtual robots to visit all the suites in order to rebuild the Court’s original database, reverse engineering it.

By the end of the data capture phase we had more than 1.2 million cases, with about 14 million procedural steps, millions of parties and lawyers, dates of each procedural step, decisions and everything else that was available. In a nutshell, we were able to reverse engineer the data to create our own Supreme Court database.

This initial endeavor resulted in the creation of the project Supreme Court in Numbers. During 2010, the analyses that had been made by the project were discussed with some Justices, such as Cezar Peluso, and the First Supreme Court in Numbers Report was published, by Joaquim Falcão, Diego Werneck and I in 2011.

Moreover, as we had the entire Supreme Court database, rather than the aggregated data, we went far beyond the scope of the Justice in Number Report from CNJ. We showed that the Supreme Court had, in fact, become an appellate court; that the State was the most frequent litigant of the Supreme Court; that consumers small claims were already becoming routine in that Court; and, above all, that by receiving cases of 52 different procedural classes, that is, 52 gateways, the Supreme Court was becoming a court that attended, albeit involuntarily, in many cases, merely the interests of the parties to delay the proceedings.

In the chapter “Beyond the double degree of jurisdiction” we demonstrated that at least 86% of the cases that reached the Supreme Court had already been tried at least twice. Instead of guaranteeing the double degree of jurisdiction - as set forth by the Brazilian Constitution - the data showed that many litigants actually had access to triple or quadruple degrees of jurisdiction.

A constitutional amendment based on a civic hacking project

Simultaneously with the publication of the First Supreme Court in Numbers Report, the then President of the Supreme Court, Justice Cezar Peluso, presented his Proposal for Amendment to the Constitution, allowing the sentences to be carried out after the decision from Appellate Court. The proposal was supported by Senator Ricardo Ferraço and became the PEC 15/2011.

PEC dos Recursos

Although it has not yet been voted in Congress, the subject of PEC 15/2011, which consists in the fulfillment of sentences based on second-degree convictions, remained on the agenda of Supreme Court cases. Justice Barroso, who has followed the development of the Supreme Court in Numbers project since 2010, has been constantly speaking up about the importance that the Supreme Court reviews its criteria for the acceptance of cases.

In his decision in ADCs 43 and 44, in which he defended the constitutionality of the execution of sentences after second-degree decisions, Justice Barroso quoted verbatim the numbers of the Supreme Court in Numbers as one of the foundations of his vote. A position that prevailed in the end.

Institutions more open to the society

Since the launch of the Supreme Court in Numbers project we have been able to observe some important changes in the Supreme Court and in our judicial system, which were undoubtedly influenced by the project. Proposals of Constitution Amendments, changes in the constitutional interpretation, and shifts in institutional positions, such as the Supreme in Action, demonstrate that the use of data can generate profound impacts even at the highest levels.

In addition to contributing to the changes listed above, perhaps the greatest collaboration of the Supreme Court in Numbers has been to demonstrate that, even with very few initial resources, it is possible to influence our institutions with data-driven projects that disclose previously unseen patterns using only public available data.

And the institutions need to respond to that. A 21st century society is very different from the one in which our legal and institutional culture was forged. Our society, as Bauman put it in its critique of modernity, is liquid, moving rapidly. It does not hesitate to change. See Occupy Wall Street; the Arab Spring; the election of Trump even after a well evaluated Obama administration; the defeat of Labour favorites in the United Kingdom in 2015 and a surprising defeat of May, in terms of chairs, for the same laborers in 2017; Brexit, in 2016; the election of Macron in France. In Brazil, we had the June Journeys in 2013, against the whole political system, and the reelection of Dilma, a year later, only to be impeached later on, with wide rejection rates in the opinion polls.

This is the reason supporting the assumption that our society needs to be prepared to use technical knowledge (programming, data analysis, artificial intelligence, and so on) not as technical tools, but as a precondition for building a stronger democracy, with more intense social influence over the institutions. As said by Justice Marco Aurélio in 2009, the delivery of data from an institution may cause it to undergo external control. May our society be able to access and contribute to the development of our institutions.

Pablo Cerdeira is the Head of the Center of Technology and Society - CTS/FGV and the former Rio de Janeiro's Chief Data Office