CJ: Punitive damages can be awarded in constitutional matters

The Court of Appeal in majority landmark judgement delivered yesterday by Chief Justice Sat Sharma,  settled a controversy among judges, when it ruled that exemplary or punitive damages could be awarded in constitutional matters. The Court also said that the sums initially  paid out by the State for punitive damages could be recovered from the offending police officer or State official. On a second ground of appeal, the Court also awarded costs for both senior and junior attorneys. 

In the past, some judges had refused to award punitive damages on the ground that in constitutional matters it is just not allowed. Siewchand Ramanoop had asked the lower court in addition to compensatory damages for punitive damages after the State conceded that  PC Rahim had illegally detained and beat him. The court agreed to compensatory damages but refused to award punitive damages. Ramanoop, through his attorneys Dr Fenton Ramsahoye SC and Anand Ramlogan took the matter to the Court of Appeal. Arguments before the Court  were heard by CJ Sharma, Justice Margot Warner and Justice Wendell Kangaloo. Justice Warner dissented.

Sharma in his judgement observed that the notion that somehow exemplary damages is on its way to obsolescence, is not one with which he is prepared to accept in view of the Commonwealth authorities and the judgement of the law lords in the case of Kuddus. He said, In point of fact, it is perhaps more imperative and relevant now than ever, where the Executive seeks to acquire and to exercise wide powers, which are sometimes carried out by high handed officials who act in its name. “These powers must be realistically checked. It is the judiciary’s function to do so; it must take the necessary measures to use effectively and appropriately remedies at its disposal... The greatest irony in all of this is that the Common law itself is undergoing drastic changes and the willingness of the courts in the old Commonwealth not to follow strict boundaries...” He said the undisputed fact in this case shows that the PC Rahim‘s behaviour was “reprehensible and despicable. He showed a callous and shameful disregard for the fundamental rights of the appellant and stripped him of his human dignity. His duty was to protect and serve. Yet he did the exact opposite.”

In the 18-page judgement, the Court said” “It is true that exemplary damages as an award in anomalous, for it goes beyond compensation of injury and vindication of rights. The argument against any award of this nature is based on several grounds. Firstly they exact punishment without the protection which the Criminal Law affords; Secondly, they can lead to multiple sanctions; then there is the argument the aggrieved litigant will receive a windfall. Thirdly, that they should not be awarded when the actual wrongdoer is not before the court and finally the damages are difficult to assess. “On the other hand, they may provide incentive for persons wronged by action of officials to take private action to enforce the Constitution then and in this way may be effective in deterring as well as punishing official misconduct. The question of double punishment , which is one of the main objections against an award of exemplary damages, simply does not arise in this case. The Executive (police officer) will bear the burden of having to pay the sum awarded. The policeman will not. He may be subjected to an internal enquiry and or face criminal charges.

There is strictly speaking no doubt punishment here. In fact at the conclusion of the hearing of this appeal, we  were told by Counsel, that the policeman  was not on any disciplinary charges, nor was he criminally charged although this incident took place in November 2000. The doctrine of Sovereign Immunity does not apply in this jurisdiction.