Possible pitfalls post litigation
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.
Viceconte v ministry of health and social welfare (Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies: Centre on Housing Rights and Eviction)
‘The court in this case empowered itself to supervise the execution procedure, to demand information and to establish hearings before the court. For example, the Minister of Public Health had to appear before the court and inform it of progress made in producing the vaccine. But the method is still very weak. The Minister was made personally liable, which was groundbreaking, but what do you do if they don’t comply? Throw them in prison? Impose a penalty of $4 million? It is impossible.’ Victor Abramhovich, Executive Director of the Centro de Estudios Legales y Sociales (CELS).
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.