The head­line in last Sun­day’s Guardian was that the State was re­quired to pay $2.5 mil­lion to a woman whose con­sti­tu­tion­al rights were vi­o­lat­ed while she was im­pris­oned for manslaugh­ter. The woman had been sub­ject­ed to cru­el and un­usu­al pun­ish­ment to­geth­er with sex­u­al as­sault at the hands of a prison of­fi­cer.

In de­liv­er­ing the de­ci­sion the Ho­n­ourable Mr. Jus­tice Robin Mo­hammed stat­ed, ‘It is the hope of the Court that the find­ings made here­in will serve as a pow­er­ful sig­nal to the State that the con­sti­tu­tion­al rights of pris­on­ers must be re­spect­ed, that those who are en­trust­ed with their cus­tody bear a se­ri­ous le­gal and moral re­spon­si­bil­i­ty to up­hold those rights....’

This is not the first such award against the State. In re­cent times the State has been re­quired to pay sub­stan­tial fi­nan­cial awards to teach­ers and oth­er Pub­lic Ser­vants whose con­sti­tu­tion­al rights were breached. These breach­es come in dif­fer­ent forms, in one in­stant a teacher chal­lenged her fail­ure to be pro­mot­ed and re­ceived an award of $800,000 due to de­layed and un­fair pro­mo­tion as­sess­ments. An­oth­er pub­lic ser­vant was award­ed $250,000 for a 16-year de­lay in clas­si­fy­ing her leave.

Hun­dreds of thou­sands of dol­lars are award­ed to per­sons for ma­li­cious pros­e­cu­tion or breach­es of their con­sti­tu­tion­al rights at the hands of law en­force­ment per­son­nel.

Un­for­tu­nate­ly, the pay­ments that are made does not come from the pock­ets of those who have of­fend­ed or com­mit­ted the var­i­ous breach­es, but, comes di­rect­ly from State funds, col­lect­ed from tax pay­ers and which ide­al­ly should be used on more press­ing is­sues such as fix­ing the roads I dri­ve on.

Right­ful­ly, Jus­tice Mo­hammed in his de­ci­sion spoke of the le­gal and moral re­spon­si­bil­i­ty to up­hold con­sti­tu­tion­al rights, yet, it does not ap­pear that much em­pha­sis is placed on this by ser­vants and/or agents of the State. It may well be be­cause there is no reper­cus­sion for their fail­ure to do so.

Con­sid­er for a mo­ment that mat­ter in which the fe­male pris­on­er was award­ed $2.5 mil­lion, an ac­cu­sa­tion was made against a fe­male of­fi­cer for sex­u­al as­sault, the fe­male prison of­fi­cer gave a wit­ness state­ment in the mat­ter, but, did not show up at the tri­al to be cross ex­am­ined. The al­le­ga­tions made by the fe­male pris­on­er was pre­ferred to that of the fe­male prison of­fi­cer.

It begs the ques­tions, have an en­quiry or in­ves­ti­ga­tion been launched con­cern­ing the con­duct of the fe­male prison of­fi­cer, is the fe­male prison of­fi­cer still on ac­tive du­ty, has crim­i­nal charges been pressed, what ac­tion has the State tak­en against the said prison of­fi­cer?

Amaz­ing­ly, all Min­istries have the ben­e­fit of a Le­gal De­part­ment. Aside from a le­gal de­part­ment, there are cer­tain min­istries who have sev­er­al Cor­po­rate Sec­re­taries at­tached to their var­i­ous of­fices and sub-of­fices, yet, the clear breach­es in the law lends the be­lief that these agents of the state do not have the ben­e­fit of any le­gal guid­ance.

More­over, le­gal mat­ters are not sim­ply filed in the Courts, there is usu­al­ly a pe­ri­od of ex­chang­ing let­ters and at­tempts to re­solve pri­or to mat­ters be­ing heard in Court. Does the State even at­tempt to mit­i­gate their loss­es by set­tling mat­ters, rather, than hav­ing sub­stan­tial awards made against the State.

It should al­so be con­sid­ered that when fi­nan­cial award­ed are made against the State, that is not the on­ly monies be­ing pulled out of the state cof­fers, we must al­so add the cost of at­tor­neys at law.

In most in­stances ex­ter­nal coun­sels are used to ar­gue mat­ters be­fore the Court at an ad­di­tion­al cost.

This ap­proach adopt­ed by agents and/or ser­vants of the State, de­spite sev­er­al law­suits, may not be sub­ject to change with­in the near fu­ture. One of the main rea­sons be­ing that the per­sons who are ac­tu­al­ly guilty of the mis­con­duct, or fail­ure to act, or ma­li­cious ac­tions are not the ones who are re­quired to pay the dam­ages award­ed by the Court.

In fact, it is un­clear whether the trans­gres­sors ac­tu­al­ly face any reper­cus­sion for their ac­tions which led to a le­gal mat­ter be­ing filed. How do we change the cul­ture of the State agents and/or ser­vants, when there ap­pears to be noth­ing mo­ti­vat­ing them to do so?

I have done sev­er­al mat­ters against the State and the ex­pe­ri­ences are usu­al­ly the same. In mat­ters where the po­lice are in­volved, the po­lice of­fi­cers of­ten time fail to at­tend court so that mat­ters are dis­missed or pro­ceed in the ab­sence of the said of­fi­cers’ ev­i­dence.

In mat­ters which in­volve monies due and ow­ing and state agen­cies, doc­u­men­ta­tion is usu­al­ly miss­ing, state per­son­nel refuse to give ev­i­dence or more of­ten the state fails to re­spond to the filed claim and a de­fault judge­ment is se­cured.

The state can­not con­tin­ue to ap­proach these mat­ters in the lazier-faire man­ner that has been the trend. Cit­i­zens are be­com­ing more and more cog­nizant of their rights. Ac­cess to at­tor­neys at law have be­come eas­i­er and per­sons are now more em­bold­ened to bring le­gal ac­tions that in times gone by where not as com­mon.

Ac­tions for breach­es of con­sti­tu­tion­al rights and oth­er such ac­tions against the state is grow­ing and so are the fi­nan­cial awards be­ing made. We can­not al­ways be a re­ac­tive so­ci­ety. The State needs to be­come proac­tive and re­con­sid­er poli­cies, pro­ce­dures and em­ploy­ment con­tracts.

State ser­vants and/or agents must be held re­spon­si­ble and ac­count­able for their ac­tions. In years gone by, I too was a pub­lic ser­vant and the run­ning joke then was that the most dif­fi­cult thing was to lose a gov­ern­ment job, per­haps it is time to change that.

Pavi­t­ra Ramharack is Head of Cham­bers at Pavi­t­ra Ramharack At­tor­neys at Law and can be reached at ramharack_pavi­t­ra@out­look.com