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This post is from “That’s How the Light Gets In”: Making Change in Closing Political Environments – a collection of essays that examine evidence of how to pursue fiscal accountability in a tougher political environment. The collection is a companion to IBP’s 2016 Annual Report. Read more essays from the collection on the Open Budgets Blog here.

“The courts are one of the few institutions that have stood up to autocracy,” says Duncan Green, Oxfam Great Britain’s Senior Strategic Adviser in his book How Change Happens. Debatable though this assertion may be, it has proven true in enough contexts that a strategy of accessing courts warrants serious consideration by civil society budget groups, particularly as an increasing number find themselves working in ever more constrained public spaces. In recent years many CSOs have appealed to courts for access to information from governments under Right to Information laws. Where a smaller number of CSOs are breaking ground is in looking to the courts when they want to challenge the government’s budget policies and practices — for example, around such issues as under-spending on social programs or discrimination in spending. Courts have agreed to hear a good number of the cases and, in many, have ruled in favor of the civil society claims.

Yet while it would be tempting to encourage all budget CSOs to incorporate a legal component into their advocacy strategies, accessing courts can be resource intensive and time consuming. This is why CSOs generally go to court only as a last resort, when all appeals through normal administrative channels have failed, or the government is so insensitive to public opinion that direct engagement would be pointless. Even in these cases, however, a decision to go to court should be made only following some careful thought. A recent publication by the Overseas Development Institute (ODI) discussing a 2008 ruling by the Supreme Court of Bangladesh provides some useful pointers for civil society to consider.

Based on its research, ODI maintains that legal action must meet some minimum conditions to have a real chance of improving outcomes for poor people: there needs to be a progressive legal framework in place, a sympathetic judiciary, and access to legal advice and assistance. Experiences of IBP partners to date around cases involving the public budget seem to bear this out.

A case pursued by the Asociación Civil por la Igualdad y la Justicia (ACIJ) in Argentina was based on a provision in the constitution of the City of Buenos Aires that guarantees the right to education to all children from the age of 45 days. In response to challenges relating to the shortage of space in schools and the resulting long waiting lists, particularly in poorer neighborhoods, the municipal government maintained that it did not have sufficient funds to build and staff enough classrooms to fulfill its constitutional obligation. ACIJ provided evidence to the court that over the course of several years the government had not only consistently underspent its infrastructure budget but had disproportionately directed the funds it had spent to wealthier neighborhoods. The court ruled that the government had violated the children’s right to education and ordered it to construct the necessary classrooms to eliminate the waiting lists.

The Indian Supreme Court provides the most compelling example of the power that a sympathetic judiciary has to change people’s lives. When the government of Rajasthan refused to release emergency stores of food in the face of widespread starvation, it was taken to court, with petitioners charging that the government was violating the right to food of people in that state. The case ultimately landed before the Supreme Court, which ordered the national and state governments to fully fund and effectively implement a series of programs, some that deal directly with food (such as school food programs), and others related to people’s capacity to provide adequate food for themselves (such as work programs). The Court has maintained supervisory powers over the case since 2001, issuing a series of interim orders and appointing commissioners who monitor and analyze government compliance with the Court’s orders.

Duncan Green has said, “The law will remain an essential weapon in the armoury of activists around the world…. The challenge will be to build bridges between legal activism and other efforts to influence the system, since the two worlds are often divided by impatience, different theories of change, or the chasm of language.” Indeed, many lawyers are allergic to the arrays of numbers in public budgets, but over the past decade there has been a growing appreciation among public interest lawyers of the centrality of public budgets to many of their issues of concern. This has been matched with a willingness to learn the jargon as well as the technical, legal, and political issues surrounding budgets. It was public interest lawyers, for example, who brought the Right to Food case to the Indian Supreme Court described above. And, in South Africa, the public interest Legal Resource Centre was instrumental in a case that the Treatment Action Campaign (TAC) brought to the Constitutional Court that challenged the government’s failure to spend funds on antiretroviral medicines (ARVs) and drugs to prevent the transmission of HIV from the pregnant mother to her child.

Courts have traditionally been reluctant to intervene in budget-related matters out of a misplaced belief that all budget decisions fall solely within the legislature’s ambit. CSOs that have managed to overcome this reluctance to win favorable decisions often then face the hurdle of ensuring that the government complies with the court’s orders. In the Argentine case mentioned above, the government started dragging its feet in complying with the court-supervised agreement it had reached with ACIJ. After a couple of years of trying to get full compliance through agreed channels, ACIJ adopted a multipronged effort to pressure the government. This included lobbying the Minister of Education, going to the media, and launching online petitions designed to put some muscle behind ACIJ’s efforts to get the legislature to ensure adequate funding for education. The effort was effective in persuading the government to fully carry out the agreement.

Indeed, the most effective strategies for ensuring that litigation will have a positive impact on the lives of the poor seem to be those that link court action with grassroots mobilization. An undoubted key to the success of the Treatment Action Campaign (TAC) case was the large-scale, dramatic demonstrations that TAC was able to call on a regular basis. Courts are not immune to the pressure such mobilization generates through media attention that, in turn, provokes public outrage and broad-based calls for action. This is good news for IBP partner the Social Justice Coalition (SJC), which filed a case in court in the fall of 2016 as part of its ongoing campaign to improve basic sanitation services in informal settlements around the city of Cape Town. As in the TAC case, the SJC litigation will be bolstered by an intensive effort to mobilize residents and engage the media over the years.

As public space narrows in countries around the world and appeals to government agencies and to legislators become more challenging and often ineffective, going to the courts may also be more difficult. A previously progressive legal framework, for example, may be repealed and replaced with weaker guarantees. Nonetheless, as CSOs continue their search for creative and effective ways to advance the rights of those they represent in an ever more hostile environment, it is essential to remember Duncan Green’s wisdom. Courts, as a separate branch of government, often act out of a conviction as to their own autonomy and importance, and provide redress where none is otherwise available.

Related Resources

• Taking Your Budget-Based Advocacy to Court: Considerations for Strategic Litigation (July 2016)
• Argentina: Enforcing a Legal Victory for Universal Access to Education (IBP Case Study, June 2016)
• Children’s Right to Early Education in the City of Buenos Aires: A Case Study on ACIJ’s Class Action (IBP Case Study, August 2011)
• In the Face of Crisis: The Treatment Action Campaign Fights Government Inertia With Budget Advocacy and Litigation (IBP Case Study, August 2011)
• South African Legal Resources Centre Successfully Advocates for Adequate Education Facilities (IBP Case Study, November 2012)

Further Reading

That’s How the Light Gets In”: Making Change in Closing Political Environments

This collection of essays — a companion to IBP’s 2016 Annual Report — examines evidence of how to pursue fiscal accountability in  tougher political environments.
Download »

International Budget Partnership 2016 Annual Report

The International Budget Partnership’s 2016 Annual Report documents our work over the past year, focusing on what we have achieved and what we have learned.
Download »