Authors: Ken Cooper-Stephenson
Claims for damages for the breach of constitutional human rights provisions are being recognized around the globe. Asian courts have played an important role in the development of these claims. Spearheaded by Saman v Leeladas (Sri Lanka), Plais v. Panuelo #1 (Micronesia), and most significantly, Nilabati Behera v. State of Orissa (India), claims have also developed in other Asian jurisdictions, including Papua New Guinea, Malaysia, and the Philippines. These claims lie on the border of public law and private law, and integrate principles from tort law, constitutional law, and human rights law. Of particular note is the potential liability of governments for failure to take positive steps to protect human rights. With a background from the early cases, and by drawing on the international jurisprudence, Asian courts can continue to assist in the development of these claims worldwide.