There are judicial and quasi-judicial mechanisms to litigate on the right to education at national, regional and national level. It is important to note that regional and international mechanisms can only be utilised when all internal remedies have been exhausted.
Taking a case to court should always be the last resort, for claimants as well as for campaigning strategies. It takes time, money and energy, and there is a lot at stake – not least that you might not win!
Any prior analysis should therefore take into account the risks (and opportunities). These may involve: personal safety (of claimants, campaigners, lawyers, etc.); legal status during and after; financial costs; reputational costs, especially for the campaigning organisations; operational costs, again this refers more to campaigners and lawyers; the impact the case might have on relations between litigants, lawyers and campaigning organisations and the government, civil society, schools/teachers/local administration, or the international community; fatigue is a real danger, but on the other hand a campaign build around a litigation process may also inspire greatly; political gains and losses must be considered; unpredictability is a major factor when planning; and finally the time-scale may be very long, and possibly too long, both for campaigners but, most importantly, for the affected victims of violations. There are many more risks and opportunities and these must be thought through by claimants, campaigners and lawyers.
It is also necessary to keep in mind the many other avenues which campaigners and lawyers may choose instead, using the law in different ways. These may include: providing evidence in existing cases; acting as ‘friends of the courts’; working with human rights groups; empowering local public interest lawyers; linking up with lawyers’ associations or networks; conducting advocacy for legislative/praxis change with the law in hand; and pushing for judicial review.
If one decides to go for some kind of litigation, it is highly recommended to follow this course of action with clearly stated aims in mind. Apart from seeking justice for individuals or groups whose rights have been violated, campaigning organisations or lawyers should view litigation as a campaigning tool with which to raise awareness; put pressure on government; to test the legal system or to create a precedent (in common law systems).
Secondly, it is important to involve others: using the media to raise awareness in the local community; in challenging/assisting local government; working with local schools; challenging prejudice in society vis-à-vis excluded groups.
In short, a decision to use litigation should consider the following 5 steps:
understanding the legislation;
framing the case;
choosing the court; and
mobilising for support and coverage.
The following accordions explore in more depth issues surrounding the decision to build a case.
In order to find out how to take a case to domestic courts and which kind of action is accepted by the court system in your country, you should consult your local human rights commission or a local lawyer. It is not possible to explain here how to begin a case because it will differ from State to State. It is necessary to consider whether the violation is individual or systematic, as this will determine to an extent what type of case should be brought:
Systemic: An entire population is denied education, maybe, for example, due to budgets being allocated elsewhere.
The different types of case that might be brought:
- Actio popularis (abstract claims challenging policy where there is no specific victim);
- Public interest litigation (a petition from any person in relation to a violation of constitutional rights even if that individual is not the victim – such a claimant brings the case on the premise that s/he represents the collective or public interest in bringing the case);
- Seeking judicial review - the power of a court to review a law or the actions of government or public authorities for constitutionality or for the violation of basic principles of justice. It is even possible to seek judicial review for the actions of a school. In some countries, there is no full power of judicial review; for example courts are not empowered to strike down legislation.
Individual: An individual or small group of people are suffering through an act of direct or indirect discrimination.
The different types of case that might be brought:
- Direct participation as litigant;
- Submitting amicus curiae briefs (friend of the court who assists the court on points of law in a particular case. These are generally not parties to the proceedings but bring knowledge, reputation);
- Taking the case to the national human rights commission.
For some types of action, the case will be officially brought by just one person. It is therefore key that this claimant is suitable for the aims of the action.
- Find a claimant who embodies the issue and is discriminated against or disadvantaged in a way that is obviously unacceptable to society in that country – this will make for an easier case than a more tenuous discrimination. Claims concerning more obvious breaches of law are also easier in the sense that courts willbe more likely to a) find time to hear them and b) feel a desire to address the issues.
- Does the applicant have a family? If so, what could be the effect on them? Are they likely to suffer a backlash from the government? Is there support for the claimants in the local community? The latter is especially important in discrimination cases.
- It is necessary to ensure that the community in whose name policy-changing litigation is brought actually benefits from the action.
- It is necessary to convince the court that this individual/group’s issues are being ignored and that the applicant is in the best position to make a stand for them.
- Choose clearly defined victims.
In order to convince judges, research including local evidence is required relating to both the specific case and the broader context.
For systemic violations, it is very important to obtain strong, official, reliable statistics – if possible, statistics that highlight structural problems within social sectors (e.g. insufficient staff, lack of training and infrastructure, too much bureaucracy) - i.e. analyse the real constraints that impede delivery of socio-economic rights: lack of coordinated, inter-sectoral planning and lack of information, infrastructure and training.
For individual violations, strong statistics and evidence regarding the violation for the situation of the individual in question are required.
Properly defined and measured statistics showing the effect of a policy, the lack of reasonable policy implementation or the damage to victims have sometimes been deciding factors in a case.
It is useful (and recommended) to research the following:
- Are there/have there been cases of a similar nature – either on the right to education or other cases that mayopen up economic, social and cultural rights generally – progressing through the courts?
- Should litigation be a last resort? Is there an alternative or compromise that will meet the needs of both sides? Are there other avenues available to you?
- Does the court structure have a good appeals procedure?
- Have the courts previously given out mandatory orders or supervisory orders? (In such cases the court retains jurisdiction and sees them through to implementation.)
- Is legal aid available in order for other individuals to use the precedent established to protect their rights?
- Has the judiciary been inconsistent in its approach to economic, social and cultural rights, such as the right to education? If so, it may be difficult to predict how the case might be decided.
- Use the vocabulary of the 4-As to frame the case, e.g. concerning the quality of the teaching materials, is not acceptable.
- If the courts in your country have not touched upon the rights in question much it is probably easier to start with a case complaining about specific actions taken by the government and asking the court to rule on them than to force the government to act in the first instance.
- It is sensible to try to establish a narrow set of rights at first and then possibly show how they lead on to other rights.
- What are the common government defences? How might you argue against them?
- Ensure that the facts of the case are well established and not heavily contested – if this not the case, it is probably better to avoid litigation.
- Do not ask for too much straight away. Often modest claims that leave open the possibility for future development of jurisprudence are a sensible approach.
- Choosing clear violations may ensure easy wins and develop momentum in a campaign.
- Think about cases that involve multiple issues – i.e. discrimination on several grounds.
- Look for under-utilised laws that can be used in other contexts as well.
- Overambitious cases can result in negative judicial precedents, thereby frustrating more modest
- claims in the short term. At the same time, underambitious cases or avoiding arguments based on Economic, Social and Cultural rights because they may seem too radical to the courts can stultify the future development of the law.
- Consider bringing litigation that starts from claims resembling a defence of civil and political rights, for example discrimination.
- Consider taking a range of cases to various fora, and linking national and international action.
- Campaign for new legislation enshrining the right to education and then actively bring forward cases based on the legislation to ensure that the rights are realised in practice.
- If there is an ineffective enforcement of court sanctions in practice, one might argue for a court judgement that imposes enforceable and realistic sanctions, such as compliance training and a good system of monitoring.
- It is important to consider the overall potential impact of a case in terms of creation of legal precedents, any deterrent effect on the state, and its effect on the community whose interests are being represented.
- Go to domestic human rights committees/commissions first for a recommendation or to examine the state reports to the commission.
- Litigation should form part of a wider strategy.
- Select cases based on violations of internationally agreed norms and standards.
It is best to adopt a flexible approach to remedies, adapted to the issue and the context in which the case is brought forward.
- A mere declaration or declaratory order might be sufficient and it may be unwise to scare the court away from a finding of a violation by demanding large or complex damage awards or judicially imposed policy changes. While a declaration carries no explicit order for the government to take an action or desist from an action, it may have immediate and resource implications. For example, if a court declares a law inconsistent with a social right, then the law, ordinarily, no longer applies
- Other times, it will be better to give the government the responsibility of designing the appropriate remedy and reporting back to the court after a period of time with its plan for compliance. In other cases, however, it will be important to ensure that victims are properly compensated for violations of the rights, and that very precise orders for governmental compliance are set out.
- Mandatory injunctive relief may be employed by the courts to order a government to either desist from a certain action or to take a particular action. Courts, for fear of losing their authority, may be reluctant to make orders against the executive branch of governments if they believe their judgments will go unimplemented. In which case, would settlement out of court be sufficient in your case?
- Implementation is often the key - ensuring court supervision of court orders can be critical in guaranteeing their effectiveness. Decisions in segregation cases in the US have taken 20 years to implement and have required constant recourse to the courts in the follow-up phase. Careful phrasing and the inclusion of a good level of detail in an order may reduce the likelihood of non-implementation.
- Furthermore, introducing a reporting requirement, whereby the State must report back on what it has done to give effect to the court’s decision, allows for the possibility of ongoing dialogue between the court and the State and enables the State to seek clarification or explanation where it is uncertain about its constitutional obligations. It is also open to courts to structure an order so as to delegate the monitoring function to an appropriate body that may report back to the court.
- Judges can be sceptical of the right to education, have little awareness of international law or be hostile to the poor and to minorities.
- It is often difficult for victims to provide proof of discrimination (and the burden of proof lies with the victim – using situational testing can be useful – different individuals/groups similar except for race or ethnicity sent out to document whether one is treated differently from the other.)
- Litigation can take many years; for example, on average in Nigeria, any case filed in the High Court will take 5-10 years to get a verdict. The courts are terribly congested, are not computerised, and the facilities are lean. Daily, a judge has 60-70 cases. This is certainly one of worst examples but the possible length of judicial proceedings should certainly be borne in mind.
- Attempts to increase government spending on social programmes are often not politically popular. In many cases, advocates have had to justify programmes as purely instrumental or economically justifiable rather than because they involve questions of dignity or rights. The power of the opposing forces extends not only to governments and the private sector, but to citizens as well. The powerful middle class is not always sympathetic and is sometimes openly antagonistic towards the poor. Often such litigation is hard to control, particularly in class action procedures where the claimant class is not fixed.
- Positive rights claims, in particular, have made judges in some jurisdictions cautious about handing down orders due to concerns about the collective impact of the decision, particularly in common law countries where the decision may have legal effect beyond the parties to the case due to the principle of cases being interpreted in the light of previous cases. However, this concern may be dealt with in a number of ways. For example, public interest organisations may be permitted to intervene to ensure that the Court appreciates the broader context, and remedial orders may be adjusted to take account of any wider implications (by delaying the effect of a judicial order, for instance). On the other hand, in civil law systems, court orders do not have any effect beyond the parties before the court. Thus, individual applicants appear to be more successful at securing individual relief, while some political momentum or real threat of mass litigation is often needed to extend the remedy to all victims.
The outcome of litigation is uncertain. Previously, a trial and error approach has been used in public interest litigation campaigns involving the use of multiple applicants and refinement and modification of the strategy until success is achieved.
- You may win a symbolic victory but lose the wider struggle
- You may win but then not be able to enforce
- Winning may lead to de-mobilisation
- If lose, an unhelpful legal precedent might be set
- People might be given false hope
Would litigation reflect public opinion and so would a positive decision receive public support? It may be that your objective might be more properly achieved through political debate - litigation should be a last resort.
- Where legal protections and enforcement are weak, strategic litigation may not achieve the desired impact at ground level.
What is the current government’s approach to human rights? Will the judgement be enforced? Economic situation? Is the government under political pressure – e.g. pending elections? Is the culture in the state one of acceptance and understanding of human rights issues?
The sensitive nature of a discrimination case in which applicant would need to receive education from the State in the future may result in applicant withdrawing (e.g. in a Croatian education discrimination case, the local authorities threatened to cut the social benefits of the parents of the applicants and to no longer provide free textbooks.)
- Remedies against victimisation need to be incorporated into law but also local community support is vital in countering such victimisation. Such retaliation needs to be quashed and that’s why large scale social mobilisation is required to bring shame and embarrassment on the local authority or whoever is responsible, on a regional, national and international level.
- After being castigated by court for discriminating, a government may retract all subsidy to even out.
- Successful cases can set groundbreaking legal precedents, and even poorly implemented decisions can act as a catalyst for subsequent and more successful cases.
- Publicity surrounding judicial decisions has often stirred greater public and civil society scrutiny of the right to education.
- Many cases have led to more judicial awareness of economic, social and cultural (ESC) rights and international law. They have served as a valuable education technique that has subsequently affected other decisions where ESC rights are at stake.
- Advocates have often used litigation as a public education tool.
- Litigation can serve a useful function in subjecting government and corporate policies and practices to careful scrutiny. Defendants have been forced to try to justify, with evidence, actions and omissions which might otherwise be ignored.
- The judiciary provides a forum for minorities in democracies that favour simple majorities, and it is not surprising that the bulk of ESC rights jurisprudence stems from litigation instigated by minorities or groups lacking political power. The complementary mechanism of litigation ensures the participation of those citizens who are often otherwise excluded from representative political processes.
- In some cases, a litigation strategy is the only strategy available, all other avenues having been exhausted. Every advocate interviewed in India commented that the court was the last bastion for the poor, the only official institution that would listen to them. Furthermore, courts are sometimes better placed to protect the rights of minorities than are the majorities who control governments.