Monetising constitutional rights: the award of damages in constitutional claims
by Ria Mohammed-Davidson
International Journal of Human Rights and Constitutional Studies (IJHRCS), Vol. 4, No. 3, 2016

Abstract: This article aims to chart the development of the law on the award of damages as a form of relief for the breach of constitutional rights. First it will examine the jurisprudence of the Judicial Committee of the Privy Council in relation to the forms of redress under the Constitution, ranging from the seminal case of Maharaj v Attorney General to the recent decision in Alleyne v Attorney General. The Privy Council jurisprudence can be analysed along a spectrum ranging from cautious gradualism on the lower end, routine dispensation towards the middle and finally tapering off with restrained awards in recent times. The award of damages under Caribbean constitutions can be useful contrasted with the approach of courts in the UK to awards of damages under the Human Rights Act 1998. The Privy Council appears much more willing to grant damages in constitutional claims than their English counterparts in cases of alleged human rights violations. The article will end with a panoramic overview of the case law of other jurisdictions, most notably from New Zealand, South Africa and Canada in an effort to determine to what extent those jurisdictions ascribe to the Privy Council or the UK approach to damages.

Online publication date: Thu, 06-Oct-2016

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