Why should Roma believe in strategic litigation?
14 November 2014
During a panel discussion last week at the PILnet European pro bono forum, the question was put to us whether there was a risk that those litigating Roma rights might lose touch with the wishes of Roma litigants. The concern was that complex and lengthy legal battles might become unrecognisable to those supposedly waging them.
I gave a depressing answer: “We’re several steps away from that worry. I’m not sure Roma waging these battles care enough about them to feel they’ve become alienated from them. They have more pressing problems and the courts have failed them so often that we are not able to convey to them the usefulness of litigation as a tactic”.
At ERRC, we forge strong links with Roma litigants in the cases we support. We make sure those litigants understand what we and others do on their behalf in the courts, and we make sure they want us to do it. But Roma litigants believe that justice will be done in a mere handful of the 80 or so cases we support; and only a few actually believe that their case will advance the cause of Roma rights.
Among our most enthusiastic current litigants are Roma outraged at the refusal of border guards to allow them to leave their own country to visit family abroad; and a student who was unjustly deprived of an important award for educational excellence. The rest act out of a remote sense of hope, and because they have nothing to lose. Just one look at school segregation in the Czech Republic is enough to make them sceptical: over seven years
after a ground-breaking European judgment finding segregation in the Czech schools, little has changed .
Why, then, should Roma be enthusiastic and proactive about litigation? It is a hard
question for me to answer – a bit like being asked why someone should like macaroni and cheese. I was raised with it. I grew up in the United States, where the names of litigants in famous court judgments are household words. Brown v Board of Education (or just “Brown”) is shorthand, to anyone probably over the age of 13, for a commitment to equal, racially integrated education. Roe v Wade , to anyone over 15, is a slogan for women’s right to choose and a byword for women’s rights generally. American history classes are punctuated with the court cases that made us who we are. The rare historical episodes where presidents challenged the authority of the courts were moments of existential crisis for American democracy.
Some countries are more relaxed about these things. The sorry state of implementation of court judgments in many of the countries where we work is a symptom of a weaker
culture of respect for the rule of law and the authority of courts. So is the lack of public discussion about the problem. It is easy in such places for Roma to think the judges are just one voice among many – ombudsmen, NGOs, European officials – trying to speak truth to oppressive State power. From there, it is easy to think that if the judges are
ineffective, it is not worth trying to persuade them.
The work of the ERRC’s legal team is rooted in a core belief that Roma, on their path to equality, must pass through the courts. There is something different about litigation. An American judge once said that “in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees” . When he said that, in the late nineteenth century, it is probable that he was not thinking about societies all across Europe, but today all of those societies are all now ‘societies like ours’, governed by a commitment to the rule of law.
If a state fails to give effect to court judgments, it becomes like a car whose speedometer is broken. It runs, but everyone knows that it is dangerous; people lose faith in its ability to get them safely to where they need to go; eventually it has to be fixed, or stopped. If we cannot fix or stop states that are broken this way, then we are no longer in a country defined by European values. No other decision maker in our societies can speak truth to power with the same destabilising effect. This is how I understand Martin Luther King, Jr’s statement, “Injustice anywhere is a threat to justice everywhere” : that car has to be fixed, because we are all riding in it.
There is another reason Roma should be enthusiastic about litigation: the rules of the game. Strategic litigation at the ERRC starts from the idea that a serious violation of Roma rights is a shame that should never have happened; but having happened, it is an
opportunity. The injustice that Roma have experienced is, paradoxically, a precious thing that they can have transformed, like a broken bone that heals stronger, to make their own lives and the lives of other Roma better.
If they take that injustice to the media, or their Member of Parliament, or the European Commission, they might succeed, but those institutions are do not exist to apply a plaster cast designed to make the bone heal and strengthen. The reason courts are there is to identify and right injustice. And they are temples or principle. In court cases – and
especially in human rights and discrimination cases – we start from fixed statements of principle (e.g. ‘Human dignity is inviolable ’) and we use the language of reason to decide how those principles resolve disputes. If Roma abandon litigation, even temporarily, they are abandoning the most powerful (and often the only) forum they have where principle rules.
Other forms of advocacy may be effective, but elsewhere, principle is too easily side-tracked by a range of argumentative tactics that provide easy cover for racism, such as cost-benefit analysis, or recourse to popular will, precaution, and political expediency. The law and courts of law fix more stable rules of argument which deprive racism of cover.
Reason and principle do not always play in favour of Roma. And, of course, even when Roma win in the courts, they then often find themselves passengers in that defective car. So litigation is not the only way Roma should assert their rights. But it deserves a special place in the struggle. A court judgment in favour of Roma and relying on fundamental principles destabilises the segregators. It may not make them any less racist, but it
creates a unique dilemma for them: either they must play by the rules (that is, the rule of law) or try to change the rules so fundamentally that they reveal themselves for what they are. If they start playing by our rules, we will win: racism and segregation are dead
ideologies with no principles that can flourish in court. And when the segregators reveal themselves to be who they truly are, they are no match for Roma however Roma take them on.
