Constitutional Damages and Proof of Damage: Recent Contributions of the Privy Council

Abstract

Since the Privy Council laid down the principle in Maharaj v Attorney General of Trinidad and Tobago (2) that damages were an 'appropriate' relief in a claim for 'redress' for breach of fundamental rights entrenched in the Constitution of Trinidad and Tobago 1976, constitutional damages have been awarded by courts in the Commonwealth in a number of cases. In Maharaj itself, the appellant was committed for a term of imprisonment for contempt of court arising from an order made by a High Court Judge in violation of the principles of fundamental justice, and the State was held liable in damages. The damage in this case emanated from the deprivation of the right to personal liberty guaranteed the appellant by the Constitution of Trinidad and Tobago. In its more recent decision in Attorney General of Trinidad and Tobago v Ramanoop, the Privy Council however added a new dimension to claims for constitutional damages. In that case, a police officer patently abused his office in a naked show of police power in violation of a citizen’s right to personal liberty. The question was whether exemplary damages could be awarded by way of redress for contravention of the fundamental rights provisions in the Constitution of the Republic of Trinidad and Tobago. In holding that an 'additional award' rather than exemplary damages should be made in this case, the Privy Council made pronouncements which were to influence one way or another, the determination of the claim of the plaintiff in the subsequent case of James v Attorney General of Trinidad and Tobago. Here, two important issues arose in the consideration as to whether damages should be awarded in the event of a constitutional breach. The first is whether damage must be proved. The second is whether a constitutional breach requires to be marked by an award of damages.