12/05/2020

The deconstruction and legitimization of Justice

The structural restrictions in the administration of justice involve dynamics so complex that they favor and perpetuate the same inequalities that they intend to legally eliminate. These restrictions are strengthened by the systematic exclusion of individuals and entire populations from access to essential basic resources, such as that of safe drinking water, a fair wage, decent housing, medical and educational services, and, within the current framework of the technological revolution,  access to information and communication technologies, electronic devices, minimal connectivity and the development of skills to enable dealing with programs and networks that allow the preservation of certain exchanges with the outside world.

The pandemic crudely exhibits the differential impact that the worldwide neoliberal economic policies have had in Latin America due to poor growth and the progressive economic recession, and the presence of increasing social conflicts in the region; it reflects an increasingly unequal and inequitable distribution in economic, social and political terms, while at the same time, foreseeing an accelerated worsening of these imbalances.

In this scenario, it is interesting to utilize Galtung's concept of structural violence to analyze the mechanisms through which the deficiencies in the system of administration of justice are channeled and which hinder access or increase the vulnerability of historically disadvantaged groups. When this indirect violence, embedded in the structure, institutes potential differences, unequally distributes vital possibilities and allows for differential access to human rights among individuals and groups, it is considered avoidable and this avoidability is in the realm of State action, and is a pending task that the Judiciary must confront.

Among the preventive measures and actions against COVID-19, the Judiciary and the Public Ministries of several countries in the Latin American region were forced to make an abrupt and harsh entry ritual  into the technological world to guarantee the continuity of those processes that, due to the entity of the rights involved, could not be paralyzed, amongst them the gender-based violence against women, the situation of those deprived of their  liberty, including  care, health coverage, food and the living conditions of their families.

Resolving conflicts between people and between people and the State today depends on structures with the kind of leadership that can provide tools to identify the weaknesses and strengths of the system, as well as carry out strategic modifications of forensic rules and practices influenced by nineteenth-century principles that still govern processes and procedures. Among them, and within the criminal sphere, are those of orality, publicity, immediacy, and control of the defense regarding the production of evidence, etc.,that allow for urgent adaptations and reciprocal commitments.

Among the numerous questions that arise today, there is one that stands out: the question of how to expand access to justice in vulnerable sectors and social groups that lack connectivity, tools, electronic devices, and the skills and knowledge to use them effectively. Even with these means, how can their effectiveness be guaranteed in cases of domestic violence without increasing the risks for the victim, while providing protection, containment and other resources for safety? Although certain crimes were perceived as having decreased at the beginning of the quarantine, how can the numerous forms of sexual, economic and cyber exploitation that take place behind the shield of the crisis, in domestic circumstances or under the close supervision of organized crime, be prevented?

It is a challenge to imagine who will be able to control  (and how) that the expansion and use of digital surveillance mechanisms -which will allow us to measure much more than body temperature-, artificial intelligence and big data will be limited to justified ends; improving the extreme vulnerability of those who surf the web and preventing the misuse of data; anticipating  and counteracting the multiple forms of cybercrime -fraud, pornography, illegal gambling, and others- as well as the corruption in the provision of food, sanitary supplies, medicines, and illegal trafficking of substances and species, among many challenges.

At the same time, it is crucial to promote a political interpretation of the vertiginous changes in judicial management, of the individual and collective experiences that the members of these organizations are going through, and the new forms of cyberjustice that have arisen under the umbrella of COVID-19 prevention strategies, to measure their impact on the multiple dimensions of the judicial system. Starting with the crisis evidenced by the high demand of judiciary actions, it will be necessary for the Judiciary to consolidate its constitutional role as a strong and independent state power, the ultimate guardian of the system of checks and balances, to maintain the republican balance of power, avoiding the excessive concentration of public power in the administrations. Guaranteeing the rights and liberties of people – which the emergency has shown, are not de facto "equal" - requires addressing each case from an intersectional, human rights and gender-perspective approach.

The Judiciary should perhaps not limit itself, in these times, to stating the rights for a specific case, when it has been revealed at the national and regional levels that majority of the most serious deficits are structural and pre-existing to the pandemic, as confirmed by some jurisdictional responses (e.g. the need to provide more and better resources and training for law enforcement personnel, with sufficient computer systems and technology, dealing with the existing spaces of impunity in relation to certain crimes, the insufficient collection of evidence during investigations, the delays in passing sentence, the dire prison conditions and the poor conditions in the buildings where the Courts operate, etc.). We are facing a historic opportunity to build new leaderships that dismantle the deficiencies of the system and carry out the profound transformations that our citizens demand.

It is urgent to build spaces for exchange and consensus concerning the revision of judicial institutions; to design cooperation and exchange mechanisms with the  State and civic organizations; to review the substance and form of the rules to which we will submit procedures; to innovate the catalog of sanctions and  develop alternatives for conflict resolution; to incorporate other dimensions into the traditional factual-legal analysis; to take measures and raise awareness about caring for the personnel of these organisms; to guarantee that the decision-making processes include the perspectives of  gender, care, and human rights.

All in all, this emergency gives us the possibility of deconstructing the Judiciary system and outlining new institutions, new responsibilities: to put into practice a modern and innovative criminal policy, with the intervention of all sectors that integrate the system, with horizontal participation, and centered on the production of reliable data, quality management, accountability and transparency, in order to regain the trust of citizens in the justice system.

Sandra Verónica Guagnino is a prosecutor specialized in Gender Violence in the Public Prosecutor's Office of the City of Buenos Aires and a founding member of the Association of Women Judges of Argentina.

Official page of the Economic Commission for Latin America. Accessed 11/5/2020. Available at: https://www.cepal.org/es/temas/covid-19.

GDP growth in Latin America and the Caribbean estimated in 2019 reaches 0.5%, due to the greater complexities and risks presented by the international context, together with a fall in the dynamics of domestic aggregate demand, derived from the decrease in private consumption and the null contribution of investment and public spending to growth.

Galtung J. Violence, peace, and peace research. J Peace Res. 1969; 6 (3): 167–191.

Official Page of the Supreme Court of Justice of Argentina. Consulted on 11/5/2020. Available at: https://www.csjn.gov.ar/sentencias-acordadas-y-resoluciones/acordadas-de-la-corte-suprema. Official page of the Judicial Power of Peru. Consulted on 11/5/2020. Available at: https://www.pj.gob.pe/wps/wcm/connect/CorteSuprema/s_cortes_suprema_home/as_Inicio/. Official Page of the Judicial Power of Paraguay. Consulted on 11/5/2020. Available at: https://www.pj.gov.py/contener/1833-la-justicia-no-para-noticias-relalaciones/1833. Official page of the Judicial Power of Uruguay. Consulted on 11/5/2020. Available at http://www.poderjudicial.gub.uy, among others.