Constitutional damages, procedural due process and the Maharaj legacy : a comparative review of recent Commonwealth decisions (part 1)

Published date01 January 2011
Date01 January 2011
Constitutional damages, procedural due
process and the Maharaj legacy: A
comparative review of recent
Commonwealth decisions (part 1)
Chuks Okpaluba
The concept of constitutional damages in Commonwealth constitutional
jurisprudence owes its origin to the Privy Council judgment in Maharaj v Attorney
General of Trinidad and Tobago (2)
which established that damages could be
recovered as ‘appropriate relief’ to enforce a right in the Bill of Rights. The right
implicated in Maharaj was the right to due process of law
which, like the right to
the protection of the law,
were guaranteed in the 1962 independence Constitution
and later the 1976 Republican Constitution of Trinidad and Tobago. Neither
Constitution defined these expressions nor have they been subjected to distinct
meanings by the courts. However, these terms are taken to contemplate the
common law principles of natural justice as well as those well-known basic rights
of an arrested, detained and accused person in a criminal trial as guaranteed in
many Constitutions of Commonwealth countries.
Any discussion of the approach of the courts towards the understanding of
these vexed expressions begins with the Maharaj judgment. So, too, is the
discussion of the constitutional damages jurisprudence in the Commonwealth.
LLB, LLM (London), PhD (West Indies), Adjunct Professor of Law, Nelson Mandela School of Law,
University of Fort Hare.
[1979] AC 385 (PC) (hereafter Maharaj (2)/Maharaj legacy/Maharaj judgment/jurisprudence).
Section 4(a) of the Republican Constitution of 1976.
See s 4(b) of the 1976 Constitution.
Maharaj (2), one way or the other, influenced the following leading authorities on constitutional
damages in the Commonwealth: New Zealand – Simpson v Attorney General (Baigent’s case) [1994]
3 NZLR 667 (NZCA); Taunoa v Attorney General [2007] NZSC 70, [2007] 5 LRC 680, [2008] 1 NZLR
429 (SCNZ); South Africa – Fose v Minister of Safety and Security 1997 3 SA 786 (CC); Zealand v
Minister of Justice and Constitutional Development [2008] ZACC 3; 2008 (7) BCLR 601; 2008 4 SA 458
(CC); and Canada – Vancouver (City) v Ward 2010 SCC 27 (CanLII) [2010] 2 SCR 28 (SCC).
Constitutional damages, procedural due process and the Maharaj legacy 257
Yet, notwithstanding its jurisprudential relevance, the Maharaj judgment has
brought in its trail both clarity and confusion. Clarity to the extent that, at the time
that judgment was rendered, Commonwealth courts were grappling with, and
issuing contradictory judicial opinions as to what ‘appropriate relief’ meant in their
respective independence Constitutions.
Again, given that their Lordships chose
a case as problematic as this to enunciate the principle of constitutional damages,
has left unexplained two problems of public law particularly relevant to this
discussion. The first is the issue of liability of the State for judicial error. The
second is that the judicial slip upon which the court imposed liability involved a
breach of the principle of natural justice. It is these two problems of public law that
inform the difficulties encountered by litigants who have sought to bring their
cases within the province of the Maharaj jurisprudence. The case law emanating
from this source provide the materials analysed in the first part of this paper.
Drawing essentially from West Indian and New Zealand case law – two
jurisdictions where the Maharaj legacy has not only been adopted but has thrived
– this paper investigates the extent to which, outside the realm of the Maharaj
judgment, the courts have held the State liable in damages for breach of the
fundamental principles of justice. The discussion of the Irish experience provides
appropriate comparative and contrasting material.
At common law, damages are not recoverable merely because an
administrator failed to observe the rules of natural justice in reaching a decision.
Declaratory or other public law remedies are preferred by the courts as
appropriate remedies in those circumstances. But, there are instances where
actions for damages have been successful where natural justice has been
breached in a pure administrative law setting. One instance is where the
appointment of a public officer vested with constitutional security of tenure is
interfered with in violation of the principle of procedural fairness. While the Privy
Council judgment in Rees v Crane
is a classical illustration of this category, the
Constitutional Court decision in Masetlha v President of the Republic of South
does not belong to this class of cases. Plaintiffs have been successful in
cases where the appointee held office under constitutional or statutory authority
and there was a breach of procedural fairness in the conduct of the disciplinary
This brings into focus the violations of procedural fairness involving
magistrates and other judicial officers.
This aspect of the problem is the subject
Okpaluba ‘Judicial redress for breach of fundamental rights in Nigeria’ (1981) 23 Journal of the Indian
Law Institute 190; Okpaluba Judicial approach to constitutional interpretation in Nigeria (1992) 343.
[1994] 2 WLR 476, [1994] 1 All ER 833, [1994] 2 AC 173, [1994] 1 LRC 57 (PC).
[2007] ZACC 20, 2008 (1) SA 566 (CC).
Meerabux v Attorney General of Belize [2005] UKPC 12, [2005] 2 WLR 1307, [2005] 2 AC 513.
Fraser v Judicial and Legal Services Commission [2008] UKPC 25 (PC); Durity v Attorney General
of Trinidad and Tobago [2008] UKPC 59 (PC); Inniss v Attorney General of Saint Christopher and
Nevis [2008] UKPC 42 (PC).

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