Always looking for innovative topics for MCLE lectures, I was inspired to create a whole new lecture on "Predictive Justice" in 2023, after the Supreme Court came out with its 2022 "Justice in Real Time: A Strategic Plan for Judicial Innovations 2022-2027 (A.M. 22-04-26, June 28, 2022) or the "SPJI". In order for Philippine courts to be relevant in the age of Artificial Intelligence (A.I.) and the 4th Industrial Revolution, the SPJI talked about a "re-engineered court system" that will have a digital infrastructure based on a "system wide process mapping" (Outcomes and Activities, p 10), that can contribute to the competence of its members. In doing so, the Supreme Court identified three areas where A.I. can come in: Transcription services, Legal research tools, and Case monitoring.
I had in the past delved on the use of "LegalTech" that incorporate A.I. algorithms and software to make the lawyers' jobs easier, to the extent that some of these e-tools can replace some of the paid legal functions that lawyers do. But the prospect of developing a three hour lecture on "JudgeTech" tools that can be used for augmenting the jobs of judges, which can affect the way "Justice" is dispensed, profoundly intrigued me. It was the ACCESS MCLE provider that gave me the first chance to impart my newly minted lecture last March 18 and April 13, 2023.
ACCESS Certificate of Appreciation to Dr. Atty. Ramiscal's synchronous MCLE Lecture on Predictive Justice April 13, 2023
In May 5, 2023, the University of Cebu (UC) Law School, as MCLE provider, gave me another opportunity to do so, but this time, it was in a "live" setting, i.e., in the UC Banilad Building Hall, in Cebu City.
My whole lecture focused on three parts: Delineation and Appreciation of the Context and Risks of "Predictive/Algorithmic Justice" particularly as "Legal Research Tools"; the Technical and Ethical Competence of Judges; and Judicial Viral Misconduct.
Dr. Atty. Noel G. Ramiscal during his May 5, 2023 MCLE lecture for the University of Cebu Law School on Predictive Justice
For this article, I would delve on A.I. tools, software and systems which had been utilized, or are currently being used by judges and justices in several countries. The term "predictive justice" has been applied to the dispensation of justice, by using any algorithmic tool or software that can analyze large and relevant datasets and come up with recommendations based on statistics and probabilities that judges can take into account in making their decisions in certain types of cases.
In Brazil, an A.I. software is being used by the Brazilian Supreme Court in conducting preliminary case analysis to reduce some of the research burdens on the Court. In India, an A.I. portal called Supreme Court Portal for Assistance in Courts Efficiency (SUPACE) was established for criminal cases, to help judges in their legal research and case monitoring. In Canada, the first A.I. driven online dispute resolution (ODR) settlement via an online ODR tool that analyzes the parties bidding tactics and strategies was made.
While plans in Estonia, to establish a robot judge to settle small claims disputes had fizzled, in China, some Shanghai courts have replaced clerks of court with A.I. assistants, and in Beijing, in 2017, some internet courts using A.I. software have been resolving cases without the assistance of human judges, and 98% of the decisions have not been appealed.
In the Philippines, there was a study made by DOST ASTI concerning the use of software in analyzing the decisions of the Supreme Court to predict the outcome of future criminal cases. I have analyzed in detail the legal and technological implications of this research in some of my previous blogs.
Dr. Atty. Noel G. Ramiscal being interpellated by Atty. Montenegro, at his UCLS MCLE Lecture, May 5, 2023 on Predictive Justice
The SPJI alluded to the unnamed "risks" that A.I. poses when and if used in the Philippine judicial system (Outcome 2: Innovations, p 17). Unfortunately, the SPJI did not even provide any general guideline or standard that can help determine the legality and ethicality of using A.I. tools in assisting the work of judges and in helping them provide for example, a correct framework for assessing the merits of current cases, or the potential of any accused to recidivate. To provide a useful guidance on this matter, I discussed the controversies in the U.S.A., regarding software algorithms which had been used in determining bail amount and probation.
Due to the way A.I. algorithms are constructed and how A.I. tools "learn" from the data they are fed, they had been discovered to incorporate the biases of their creators, and discriminate against women, LGBTQIA+ people, people of color, or ethic minorities. They can be programmed by unscrupulous developers to assist in government corruption. They can also contain source code errors, and can suffer from "software rot", which their creators and sellers try to hide by using the veil of intellectual property rights.
Dr. Atty. Ramiscal's Predictive Justice ACCESS MCLE lecture, with sample comment from a participant, March 18, 2023
I examined at length if A.I. tools, or "robo-judges", or the "predictions" they provide to judges can be "legal" or "ethical". Without going thru the philosophical and political underpinnings of such an endeavor, and basing my analysis exclusively on the constitutional, legal and regulatory standards that exist in the Philippines, I came to the conclusion that they are neither "legal", nor "ethical", nor permissible under the 1987 Constitution, and the relevant regulatory framework pertaining to judges, which all require judges to be "human". The Philippine legal milieu would have to be adjusted or tweaked in order for A.I. tools or "robo-judges" dispensing some form of "legal" prediction or "decision" to gain legal acceptance.
Since the Philippines has no current law that regulates A.I., and no specific guidelines as to the use and regulation of A.I. predictive tools, I brought to the attention of the participants several matters that can be used for developing safeguards as to what these A.I. predictive tools or systems should be fed on, in terms of judicial data. For instance, there has to be parameters set on what these data should include, from what courts should these data be sourced, and the establishment of the provenance of such data for authenticity and verifiability purposes. Content wise, I discussed several Supreme Court decisions that can be considered "bad" for their general and specific legal repercussions on the Philippine public welfare. Any predictive tool or software must, from the very start, incorporate a system of determining and excluding "bad decisions" from being part of the equation of "predictions" that these tools would suggest or recommend to judges.
In order to avoid mistakes that have happened in several jurisdictions, where the predictive tools were created by developers who have no expertise on the areas where the tools were going to be used, "multidisciplinarity" is key to the success of these tools. Aside from judges, prosecutors, and lawyers, some of the professionals that can be tapped can, and should include, economists, sociologists, philosophers, computer engineers, biologists, physicists, mathematicians, statisticians, psychiatrists, and medical doctors, to provide a wholistic view of how predictive justice can achieve its aim of assisting judges.
University of Cebu Law MCLE Certificate of Appreciation to Dr. Atty. Ramiscal re: Predictive Justice given May 5, 2023
I would like to especially thank the ACCESS management, their founders, Atty. Peaches Aranas and Mr. Alex Canata, the Adamson University College of Law, headed by Dean, Atty. Ada Abad, and the ACCESS technical support staff, for giving me the first opportunity to share my research and insights on this complex and very challenging topic via their synchronous MCLE sessions. Special note of thanks to all the ACCESS MCLE participants who gave me some of the greatest feedback I have received during my 15 years as MCLE lecturer, and it happened via Zoom!
Dr. Atty. Noel G. Ramiscal receiving the UCLS MCLE Certificate of Appreciation from its MCLE Director, Atty. Josh Carol Ventura, May 5, 2023 on Predictive Justice
Of course, greatest heaps of thanks go to the UCLS Founder, Atty. Augusto W. Go, the UC Law School Dean, Atty. Al-Shwaid Ismael, the UC MCLE Committee, headed by Atty. Josh Carol Ventura, the UC Bar Review Director, Atty. Lorenil Archival, the technical and support staff, and all the gorgeous, wonderful lawyers who gave me their valuable attention, and their insights, during my lecture, making my first "live" MCLE lecture since January 2020, all the more fun and memorable!
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