ABSTRACT
In this case study, we analyze the influence of the organizational structure in the definition and implementation of information and communication technologies (ICT) strategies in the Brazilian Judiciary System. The analysis shows that the existing organizational structure boosts incoordinated actions, but the National Council of Justice (NCJ) protagonism in the process of coordinating the strategic planning of the Brazilian Judiciary System (and ICT strategic planning) may change this reality, allowing the Brazilian Judiciary System to fully appropriate the benefits of ICT.
Categories and Subject Descriptors
K.6.1 [Management of Computing and Information Systems]: Project and People Management - strategic information systems planning, system development.
J.1 [Administrative Data Processing]: government, law
K.4.3 [Computers and Society]: Organizational Impacts - automation.
General Terms
Management, Performance, Design, Legal Aspects.
Keywords
Information and Communication Technology; Organizational Structure, Strategy; Justice, Brazil.
INTRODUCTION
The automation of the Brazilian Judiciary System is a process that has spanned the past three decades [1]. But its history is still told in an incomplete way, based mostly on statistics of computers purchase, as part of the history of modernization of each and every single judiciary unit [2]. These fragmented histories do not include an analysis of the strategy of implementation of information and communication technologies (ICT). Many of the implementation efforts were made without long term planning or a clear definition of project scope or work breakdown structure [3].
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Federal laws 11.280/06 and 11.419/06 have contributed to change this frame as they established the electronic lawsuit as a viable way to modernize the Brazilian Judiciary System. This specific use of ICT can enlarge the provision of e-government services from the Brazilian Judiciary System to the citizens. Meanwhile, the growth of internet usage by the Brazilian population indicates that "the public policies developed to include Brazilian citizens in the information society are in the right path" [4].
The definition and implementation of ICT strategies in the Brazilian Judiciary System becomes more important as ICT has several important roles to play at the same time: an useful tool to help modernize the Brazilian Judiciary System (automation); a new access point to government services (e-gov); and an opportunity to promote digital inclusion.
METHODOLOGy
According to Yin [5], there are several criteria to select a methodology. In this work, the focus was to identify the way the organizational structure influenced the definition and implementation of information and communication technology (ICT) strategies in the Brazilian Judiciary System. So, the case study methodology as described by Yin [5] was chosen to conduct a qualitative research, in order to explore and describe a phenomenon in its own context.
The analysis of the organizational structure of the Brazilian Judiciary System is based on the Federal Constitution that describes all branches and their jurisdiction [6]. The analysis of the definition and implementation of ICT strategies is based on previous analysis of the state level courts [2]; the role the National Council of Justice (NCJ) played as coordinator of strategic planning in the Brazilian Justice since 2004 [7]; and the use of ICT by the Brazilian Judiciary System [8].
However, both the subject and the methodology adopted restrict the conclusions and lessons that can be drawn from this study. If any generalization claim is made, it is restricted to the Brazilian Judiciary System and the courts within it.
ORGANIZATIONAL STRUCTURE
The Brazilian Judiciary System is composed by a complex combination of matter, territory and instance. The jurisdiction for deciding a certain issue is based on a combination of the right to be disputed (matter), local of the dispute (territory) or level of the judge who is able to decide (instance). Although the explanation may be simple, the multitude of possible combinations offers a menu that goes beyond the several administrative autonomous units of the Brazilian Judiciary System. The responsibility for judging a certain dispute can even migrate from one branch to other as the dispute evolves to higher levels of appeals.
As a federative republic, the basis of the Brazilian Judiciary System lays on the state level. The macro organizational structure of the Brazilian Judiciary System is fixed on Title IV, Chapter III, Section I, article 92 of the Brazilian Constitution [6]: "Art. 92. Are organs of the Judiciary Power: I - the Supreme Federal Court; I - A the National Council of Justice; II - the Superior Court of Justice; IV - the Courts of Appeal and Labor Judges; V - the Courts of Appeal and Electoral Judges; VI - the Courts of Appeal and Military Judges; VII - the Courts of Appeal and State, Federal District and Territorial Judges. Due to this division, Brazil has more than 100 administrative autonomous judiciary units, as shown in Figure 1.
Figure 1. Organizational Structure of the Brazilian Judiciary System
Besides the five Supreme Courts, the Federal Justice System has five Regional Federal Courts of Appeal responsible for all 27 states of the Brazilian Federative Republic. These Regional Federal Courts of appeal are divided in 27 Federal Judiciary Sections with administrative autonomy, one for each state. The Labor Justice System has 24 Regional Labor Appeal Courts with administrative autonomy, with more than one in one state (São Paulo) and four that are responsible for two states. The Electoral Justice System has 27 Regional Electoral Courts of Appeal, one for each state, each one with administrative autonomy. The president of the Electoral Court of Appeal is elected among the appeal judges of the corresponding State Court of Appeal. But this does not undermine the administrative autonomy, as budget and personnel are separated for each Court of Appeal.
The most complicated part of the Brazilian Judiciary System Organizational Structure is the Military Justice. The Federal Military Justice is competent for judging military from the armed corps (army, navy and air force). The State Military Justice is competent for judging military from the state military police and the state military fire department. There is a State Military Court of Appeal in just three states (Minas Gerais, São Paulo, and Rio Grande do Sul). Where there is no such instance, appeal cases are judged by local State Court of Appeal.
As the existing territories became states, the structure of the state level Brazilian Judiciary System has been consolidated [6]. There are 27 State Courts of Appeal, one for each state. Although one may dispute if Brazil is really a federative republic, as most of tax revenues are concentrated in the Federal Government and legislation is created mostly at the Federal Chamber of Deputies and the Senate of the Republic (laws that are enforced over local state laws), it is clear that the Judiciary System is state-based, as the general competence (unless otherwise established in the law) is provided by the State Courts.
Recently, an increasing growth of the Federal Justice System has been observed. This is a twofold phenomenon: the number of actions against the Federal Government is increasing and new laws are being transferred to the Federal Courts competence over matter that was previously assigned to the State Courts. But, as a recent phenomena, it does not change the fact that most of the justice service to citizens in Brazil is provided by the State Courts [9].
The analysis of the Brazilian Judiciary Organizational Structure shows clearly a lack of central coordination. The various autonomous units are redundant in all their administrative activities (including ICT planning and implementation), with their individual goals, and also specialized by competences (including geographical area). The expected result of this sort of organizational structure is decentralized planning and decision making, as well as duplication of efforts. This has (partially) changed with the deployment of the NCJ by the Constitutional Amendment n. 45, in 2004.
ICT IN THE BRAZILIAN JUSTICE
Procedural Law is federal in Brazil, but states have autonomy to discipline the functioning of local State Court of Appeals. Besides that, each one of the State Courts has its own internal organization and internal procedures. As Procedural Law is the same in the whole country, the way each State Court works depends on its internal organization and internal procedures, regulated in a decentralized way.
The concept of internal organization of a judiciary autonomous unit (as a State Court of Appeal) includes both its administrative units and its courts. The administrative units are responsible for providing internal services (backoffice) to the courts, allowing them to deliver justice to the citizens. Most courts are specialized according to matter, territory and instance, reproducing, micro level, the sort of partition found at macro level. Each court has relative and limited autonomy, mostly referring to internal organization, division of Labor and the judge's decision power. Although there is independence to the judge's decisions, the courts that belong to a State Court of Appeal are dependent of the services provided by its administrative units. In some cases, administrative unit's procedures can even restrict the actions of the judges by denying access to a judge's ruling under certain conditions or denying certain resources (material or personnel) required by the judge in order to act. Because of that, it is said that the quality of judiciary services are highly dependent on the administrative structure of the court and the quality of the services it provides.
Among the administrative units, ICT units are said to be the one that have a major influence on the judiciary services. This influence is directly related to the degree of automation adopted by the court. According to Tapscott's model [10], it is possible to divide the history of the automation of the Brazilian Justice is three distinct phases: pre-automation; automation; and virtualization (or full lawsuit automation).
Pre-automation
The first phase the Brazilian Judiciary System automation was uncoordinated, even among a single judiciary administrative autonomous unit. It is marked by individual initiatives (both from judges and civil servants), with use of private computers and simple software or adaptation of the use of available software developed by themselves or third parties. Word processors to type court hearings and decisions and spreadsheets to register and control the accompaniment of lawsuits are typical tools of this phase. But the goals are individuals, as these tools are developed and used only to reduce or rationalize the user's work.
Automation
The second phase of the Brazilian Justice automation required a certain degree of coordination within each judiciary administrative autonomous unit, to allow the definition and implementation of software to control the basic routines of the court: distribution of initial briefs, fulfillment of court orders, accompaniment of lawsuits, publication routines, scheduling of hearings, among others, that undoubtedly benefit from computerization. The goal becomes institutional, as it becomes possible to follow and control every lawsuit in a given judiciary autonomous administrative unit.
But the second phase was not marked by rationalization. Until recently, São Paulo State Court had multiple systems for lawsuit automation, without communication among them [2]. Mato Grosso do Sul State Court had several version of the same system, without full communication among the different versions [2]. As Brazilian State Courts still struggle to reach the full potential of automation, the current situation reflects the lack of coordination of the strategic ICT initiatives even within a single judiciary autonomous unit [2]. Among the 26 states and the Federal District, 14 have developed their own system for lawsuits automation: Amapá (Tucujuris); Bahia (Saipro) (Bahia); Ceará (SPROC); Distrito Federal (SISTJ);Espírito Santo (Ejud); Goiás (SPG); Maranhão (Themis); Minas Gerais (Siscon); Mato Grosso (Pólo); Paraná (name not found); Piauí (Themis); Rio de Janeiro (Comarca); Rondônia (SAP); and Sergipe (SCP) [2]. Two states adopted the Siscon, developed by Minas Gerais State Court: Roraima and Paraíba [2]. Seven states have adopted a off the shelf available system for lawsuits automation, SAJ, developed by Softplan: Acre; Alagoas; Amazonas; Mato Grosso do Sul; Rio Grande do Norte; Santa Catarina; and São Paulo [2]. Two states have adopted systems developed by third parties (Rio Grande do Norte e Pará), both with the name (SAJ), but not developed by either Softplan or by the same developer in both cases. Pernambuco (Judwin) and Tocantins (SPROC) also adopted systems developed by third parties [2].
Table 1. Lawsuit automation systems in State Courts
Type
Internally developed
Developed by third party
Off-the-shelf solution
Quantity
14
6
7
The analysis of the second phase of the automation of the Brazilian Judiciary System, based on the system adopted for lawsuit automation shows the clear effects of administrative decentralization. Most of the State Courts have developed their own system for lawsuit automation (14), although a single system could be used by all State Courts with minor adaptations (Table 1). The commercial success of SAJ, sold to seven different states, with different sizes and needs, shows that much of this development effort was duplicated, or multiplied by 14, with no clear advantages. Some smaller states, as Roraima and Paraiba, with no large budget, big administrative structure or specialized personnel to invest on ICT development, have adopted a system developed by other state, Minas Gerais, avoiding also the cost of purchasing a commercial solution. This solution, as opposed to internal development, shows that a certain degree of coordination among the State Courts would be of benefit, at least in reducing ICT spending.
Virtualization
The third phase of Brazilian Justice automation, electronic lawsuit, is in progress, although the second phase is still incomplete for several administrative autonomous judiciary units of the Brazilian Justice System, mostly State Courts, Military Courts and Labor Courts. This situation, where autonomous units are at different maturity levels, can hamper the advancement of the third phase which needs to surpass the existing status quo of internal coordination and systemic incoordination.
The electronic lawsuit is the fifth stage of e-gov according to the UN/Aspa classification [11]. This stage known as 'virtual', requires the full integration of e-gov services by a 'virtual agency' without boundaries between governmental bodies, which is especially difficult when we talk about the Brazilian Judiciary System and its more than 100 autonomous units [12]. The complicated rules that define the competence to judge a given case serve as an element that hinders access to justice, undermining the effective rendering of its services, in opposition to the requirements identified by Bent et al [13] and causing the problems unveiled in their research.
The first instances of electronic lawsuits were implemented by isolated courts in the various autonomous units, often based on previously available lawsuit information systems. This tallies with the phenomenon already analyzed: multiple systems, developed internally or on demand by each court, for which a learning process is necessary to enable their effective use [2]. In many cases, the existence of more than one system in place in each court exacerbates this problem [2].
The Digital Judicial Lawsuit (Projudi) system of the NCJ was presented as a solution to this problem and was in use (in a proof of concept phase) in 26 of the 27 states. However, the states used different versions available and had a high degree of freedom to customize them, which repeated the same model, with high learning curve costs, albeit less significant. Later on, in 2010, after more than 50 million dollars wasted, the NCJ abandoned the Projudi initiative, recognizing that severe problems arose from the degree of freedom given to each court to develop its own version of the system. A new initiative was announced, with no name until now, but with a centralized development and no access to the software code.
Electronic Lawsuit
Undoubtedly, the most important initiative in the field of e-gov by the Brazilian Judiciary System is the so-called electronic lawsuit. Although it is known by this name, it is not a new type of lawsuit, but a differentiated physical medium with the same rules as traditional lawsuits, namely instead of the court dockets are on paper, the lawsuit is processed using electronic means. In other words, the standard principles and rules of judicial lawsuits are maintained, though documents that were stored on paper (often generated electronically) are stored and managed in digital media.
There were two alternative models of computerization of the judicial process in Brazil [14]. The first, represented by Bill 5828 in 2001, submitted by the Association of Federal Judges, is considered idealistic. It is based on the assumption that the computer should only be used when access to information technology is universal, i.e. all citizens have Internet access and an e-mail account. Starting from this premise, it is proposed simultaneous computerization of all acts as a way to speed up court procedures, as it is assumed that digital exclusion is solved. The other stream is considered pragmatic, being represented by Deputy Senator Osmar Dias and backed by the Brazilian Bar Association. It is based on the assumption that the security of judicial acts is the primary concern when it comes to the issue of computerization.
The enactment of Federal Law 11.419/06 represented a victory for the first group above [15], though the effective implementation of the electronic lawsuit has been pragmatic. The control of routines such as distribution of initial briefs, fulfillment of court orders, follow up of lawsuits, publication routines, scheduling of hearings, among others, undoubtedly has been benefiting from computerization [16]. Article 8 of the Federal Law 11.419/06 defined the model of lawsuit automation, allowing each and every administrative autonomous judiciary unit to develop their own system for electronic lawsuit, with court dockets totally or partially in electronic format. This represents the maintenance of previously existing autonomy and consequent lack of coordination. Also, there is no legal obligation to adopt the electronic lawsuit, not even partially, although the NCJ, in the Multi-year Strategic Planning for the Brazilian Justice for 2010-2014, has established 2014 as the deadline for all lawsuits in Brazil to be handled in electronic format. Article 14 states a preference for both open source and standardization. The term "preferably" was consciously adopted by the legislature, since its absence would alter the meaning of the standard, or at least its strength. Thus, the legal text confirms the freedom of each unit of the Brazilian Judicial System to choose the development model that is most appropriate to its own use, although not an open source software. Likewise, "giving priority to its standardization" does not require the adoption of specific system, as the one developed by the NCJ.
Given the degree granted of freedom of each administrative autonomous judicial unit, conferred by the Constitution, shown by the organizational structure and confirmed by Federal Law 11.419/06 when defining the model of automation of the Brazilian Justice, this process could end up with more than 100 different systems spread among the different units. But this is not what is happening. The automation initiatives of the Brazilian Justice are increasingly structured and coordinated, mostly due to NCJ efforts.
Electronic Government Program
The Electronic Government Program of the Brazilian Federal Government was the result of the Working Group on Information Technology (GTTI) formed in 2000 to study the formulation of federal policy for electronic government [17]. The program implementation has focused on three lines of action: universal service; government available to all; and advanced infrastructure.
At Lula's government, the old structure of the Executive Committee on Electronic Government at the Secretariat of Logistics and Information Technology was disassembled [17]. Only with the creation of the Department of Electronic Government (2005), there is a resurgence in the movement. However, this activity remained restricted to the ministries and the Federal Government. That is the Electronic Government Program was not identified as an element of planning or implementation of strategies for the use of ICT in the Brazilian Judiciary System.
The biggest effect of the actions of the Federal Government can be felt in public policies for social inclusion, whose result is expressed in the continuous improvement of the contents of digital inclusion [18]. The larger number of computers, cell phones and the spread of Internet use are elements that allow the Judiciary to make intensive use of ICT in the form of e-gov [7].
Secretariat for Judicial Reform
The Secretariat for Judicial Reform was established under the Federal Government, by Decree 1117 of August 7, 2003, of the Ministry of Justice [19]. Its tasks are laid down in Article 23 of Decree 6061 of March 15, 2007 and includes: I - guiding and coordinating actions with a view to adopting measures to improve judicial services provided to citizens; II - to examine, formulate, promote, supervise and coordinate the process of modernizing the administration of justice in Brazil, through coordination with other federal agencies, the Judiciary, the Legislative Branch, the Public Ministry, the State Governments, international agencies and civil society organizations; III - to propose measures and examine proposals to reform the justice sector in Brazil.
Thus, by the exegesis of the items I, II and III it would be expected that the Secretariat for Judicial Reform played an active role as part of the formulation or coordination of strategies for ICT use within the Judicial Branch. Indeed, consultating the Secretariat website, it was identified four priority lines of action: (i) Democratization of access to justice, (ii) Research / Diagnosis (iii) Modernization of management, and (iv) Changes in legislation [1] .
The Ministry of Justice, to whom the Department is subordinated, is an element of mobilization of important initiatives such as: the "State Republican Pact", whose second version has been signed by the heads of three branches in early April 2009, the" Pact for Judiciary", also signed by the heads of three branches, and the"Innovare Award: the Judiciary of the XXI Century". However, these initiatives are restricted to present good practices, either by reward or disclosure on the website of the Secretariat [2] .
National Council of Justice
The NCJ, whose powers are defined in Article 103-B of the Brazilian Constitution, should "set the strategic planning, the goals, and programs for institutional evaluation of the Judiciary." Strategic planning as such is not a strange figure to units of the Brazilian Judiciary System. Some Courts have already made their strategic planning since the 90's, after the adoption of the model of public management, replacing the model of bureaucratic public administration, driven by the Master Plan for State Reform, prepared by the Ministry of Federal Administration and State Reform in 1995 [20]. But many of these initiatives did not continued, either by its complete disruption or by biennial change in the administration [3] .
As the Secretariat for Judicial Reform, the NCJ has also created a database of good practices [4] . But unlike the previous initiative, has also adopted effective measures for coordination and formulation of ICT strategies, as the development of automation system Projudi. The NCJ has also served as part of the formulation and coordination of ICT strategies, through the Committee for Management of Information Systems of the Judiciary, coordinated by the NCJ and which comprises representatives quote of several courts at different levels. As a practical result, we can cite the adoption of unified tables for classes and handling procedures. And the unification of the identification numbers of procedures, whose aim is "to facilitate communication of the courts in Brazil to enable a unique identification of the lawsuit, regardless of its origin" [21].
But the great innovation of the NCJ was to conduct the strategic planning in the Judiciary, considering the difficulties of integrating more than 100 units of the Brazilian Judiciary System, something never before attempted. The NCJ promoted in 2009, the 2nd National Meeting of the Judiciary, whose main result was the establishment of a coordinated strategic planning for the entire Brazilian Judiciary System, consolidated at Resolution 70 of March 18, 2009, that sets 10 national goals for 2009, including six specifically dealing with ICT strategy: computerize all the judicial units and interconnect them to the respective court and the World Wide Web (Internet); computerize and automate the distribution of all lawsuits and appeals; implement management systems for criminal enforcement and monitoring mechanism for temporary prisons; make available the procedural information in the portals of the world wide web (internet), with lawsuit accompaniment up to date and content of decisions, respecting the privacy of justice; register all magistrates in the electronic systems of access to information on people and property and reporting court orders (Bacenjud, Infojud, Renajud); and implement electronic lawsuit portion of their units [5] .
In September 29, 2009, Resolution 90 of the NCJ established requisites for ICT in the Judiciary Power [6] . It details the number of civil servants in ICT according to the size of the Court, the rules for developing or contracting information systems, a minimal required ICT infrastructure, and the need for ICT strategic planning. In its Resolution 91, also of September 29, 2009, the NCJ established the Model of Requirements for Information Systems for Management of Lawsuits and Documents of the Judiciary Power (MoReq-Jus) [7] . The MoReq-Jus establishes technical and functional specifications, to guide the acquisition, the detailing and development of systems for lawsuits and documents management within the Brazilian Judiciary [8] . It provides a common ground for all electronic lawsuit systems despite the large degree of freedom provided by the Federal Law 11.419/06.
In 2010, a new round of strategic planning was made at the 3rd National Meeting of the Judiciary, and resulted in 10 new goals for the present year [9] . Two of them are specifically related to ICT strategies: increase the speed of the links between the Court and 100% of the units installed in the judicial capital and at least 20% of the units of the interior to of 2 Mbps; and perform, electronically 90% of official communications between the bodies of the Judiciary.
This focus on ICT shows that the NCJ includes the use of these tools as a crucial factor for solving the problems of the Brazilian Judiciary. If the adoption of new public management indicated computerization and e-government as paths to follow, today, the need to expand electronic government services increases the need for a restructuring of the state to provide these services in terms of routines and processes that need to be revised, deleted or modified through ICT tools [22].
CONCLUSIONS
The path is set to the transformation of the Brazilian Judiciary System through the use of ICT. But for that, it is needed that the different administrative autonomous units of the Brazilian Judiciary System agree to adopt common standards. This is the challenge that the NCJ is proposed to solve when it presents itself as a coordinating body for the strategic planning of the Judiciary Judiciary System, where the planning of the ICT strategy is an essential part.
As the Brazilian Judiciary System advances to the third stage of the automation of the lawsuits, it will be possible to analyze which initiatives achieved or not success and benefit from lessons learned during the process of change. The present study indicates the paths so far and indicates possible future developments that should be the object of attention for both legislators and law enforcers, particularly the managers of the administrative autonomous units of the Brazilian Judiciary System, as the ones directly responsible for planning and implementing ICT strategies.
