Engage in strategic litigation

Ongoing human rights monitoring (more information is available in the Legislation: Monitoring section of this website) can often provide the basis for identifying cases that should be litigated as part of an overall strategy of justice sector reform – this is known as strategic litigation, also called impact litigation or public interest litigation. Strategic litigation uses the justice sector to achieve legal and social change through test cases. Strategic litigation is also sometimes called impact litigation because it seeks to have an impact beyond the actual outcome of the case. Unlike the provision of legal services, strategic litigation’s goals are broader than helping an individual client. Even if losing the case is the most likely result, organizations may decide to engage in strategic litigation as part of a broader campaign on a human rights issue. Strategic litigation can be used to:

Change law or policy that violates the constitution or international human rights norms
Identify gaps between domestic legal standards and international human rights standards
Ensure that laws are interpreted and enforced properly (Rekosh, 2003).

Strategic litigation can be conducted in any judicial forum, whether local or national courts, or before international judicial and quasi-judicial bodies. Strategic litigation has been used for many years to advance civil and political rights, women’s rights, the rights of indigenous people and other minorities, the rights of prisoners, the rights of children, housing rights, and many other human rights issues.

Potential Benefits of Strategic Litigation

Potential Risks of Strategic Litigation

Win a desired outcome for the client or group of clients
Set important precedent
Achieve change for similarly situated people
Spark large scale policy changes
Empower clients
Raise awareness
Encourage public debate
Highlight the lack of judicial independence or fairness on a given issue
Provide an officially-sanctioned platform to speak out on issues when government may be trying to silence voices on that issue

Unduly burden client
Political backlash
Risk safety of client, especially marginalized groups
Privilege political or strategic goals over individual goals
Set bad precedent
Undermine judiciary by highlighting lack of independence or power on a given issue
Expend valuable resources on a case that may be very difficult to win

When should practitioners consider strategic litigation?

Effective strategic litigation requires that many variables come together in the right way and at the right time. Strategic litigation is much more than a simple legal case – it is an entire strategy and involves assessing the characteristics of the client, the legal issues, media interest, partnerships with other groups, judicial history on this and similar issues, costs, timing, etc. The following are some key questions to consider before starting litigation:

Is there a legal issue involved that exemplifies or relates to a broader social or societal problem?
Would a court decision be able to address the problem?
Are your cause and the key issue in the case easy to understand for the media and the general public?
What is the client’s goal and how can the lawyer help the client clarify the goal(s)?
What level of commitment does the client have to achieving the goals?
Beyond litigation, are there are other methods of achieving the client’s goal(s)? Are these more or less likely to be effective?
What are the strengths and weaknesses of the client’s case? What are the strengths and weaknesses of the opposition’s position? What are the legal claims and how strong are those claims on the merits, within the system and in public opinion?
Who are the opponents and what is the estimated level of commitment to that opposition? Who are their supporters?
Who else has an interest in the issue and what are those interests? Will they support the client’s position?
Will those with an interest be willing to work together on reaching a solution? Are other actor’s with a less defined interest able to support the issue?
How difficult will it be to prove the case? How costly will it be?
Is there an alternative or compromise that will meet the needs of both sides? Is exploration of other avenues an option?
How likely is it that the court will look favorably on the action?
What political repercussions will follow either a win or loss in court?
Is the legal theory clear and simple, and is the remedy easy to implement?

Questions excerpted from: Wilson, and Rasmussen, Promoting justice: A Practical Guide to Strategic Human Rights Lawyering, 2001, at 61-62; Geary, Children’s Rights: A Guide to Strategic Litigation, 2009, at 8.

India and Bangladesh – Landmark Public Interest Litigation

In 1997, a group of activists and NGOs in India filed a class action alleging that the pervasive sexual harassment of women in the workplace violated several articles of the Constitution of India. Specifically, the action alleged that sexual harassment violated the right to gender equality, the right to life and liberty, and the right to practice any profession, trade, or occupation. The case was filed after the brutal gang rape of a social worker in Rajasthan. The Court noted that the laws in India had not sufficiently protected the rights of women workers and that the Court had a duty to “fill the legislative vacuum.” See: Vishaka and others v. State of Rajasthan, para. 3.

In its opinion, the Court stated that “[g]ender equality includes protection from sexual harassment and [the] right to work with dignity, which is a universally recognized basic human right.” (Vishaka, para. 10) The Court also specifically referenced the Convention on the Elimination of All Forms of Discrimination Against Women, recognizing the Indian government’s ratification of CEDAW and its commitments regarding women’s rights made at the Fourth World Conference on Women in Beijing.

Vishaka has had broad implications in India and beyond. Several cases have come before the Indian courts and led to further interpretation of Vishaka. Moreover, in 2008, a coalition of NGOs in Bangladesh filed a petition similar to that in Vishaka alleging that sexual harassment constituted a violation of Bangladesh’s constitution (Bangladesh National Women Lawyers Association v. Gov. of Bangladesh and Others). Following much of the reasoning of Vishaka, and quoting the Indian Supreme Court among others, the Supreme Court of Bangladesh issued guidelines with the force of law similar to those issued in Vishaka.

Ethical Considerations in Strategic Litigation

One of the defining features of strategic litigation is that the broader policy goals behind the litigation generally trump the interests of an individual client. This raises important ethical considerations that must be extensively examined and discussed with the client early on. In particular, if the litigation is likely to fail to bring a remedy for the client but there are reasons to pursue it nonetheless, there are some critical questions that must be explored:

Should the lawyer encourage the client to continue the case despite a low likelihood of success?
Will the client willingly sustain a long appeals process if this is necessary?
Does sufficient financial support exist to see the case to conclusion?
Can the case be submitted to a regional human rights body?
If the particular court is likely to be adverse is changing venue an option?
Do the potential auxiliary benefits of a failure outweigh the burden of litigation the client faces?
What extra-legal work can be done to support the case? Will such efforts undermine the judicial process? Will such efforts create a sustainable change in the situation?
Does the lawyer have a duty to explain the overall strategy to the client regardless of whether it affects her case? Is it ethical to “fail to inform” of an auxiliary reason for the strategy? Is there ever a justifiable reason for a client to lack awareness of the strategy? (Wilson & Rasmussen, 2001).

Strategies to Support Strategic Litigation

Develop the capacity of lawyers to bring public interest cases to national and regional and international forums.
Provide training on international human rights standards and international jurisprudence.
Support NGOs with legal expertise to initiate important cases to advance women’s rights. For example, the Zimbabwe Women Lawyers Association advances test cases to confirm that laws are being administered in a manner consistent with women’s rights. See Programming Initiative on ZWLA
Support NGO shadow reports on CEDAW.

Tools:

NGO Participation at CEDAW sessions (International Women’s Rights Action Watch Asia Pacific (IWRAW Asia Pacific)) gives details on how to submit a shadow report to the CEDAW committee, by a non-governmental organization which distributes NGO shadow reports to CEDAW experts in advance of the session. Available in English.

Working with the United Nations Human Rights Programme: A Handbook for Civil Society (United Nations, Office of the High Commissioner on Human Rights, 2008). Available in Arabic, English, French, Russian, Spanish, and Chinese.