On the Nature and Extent of State Compensation for Unlawful Administrative Action in Malawi
A Common-Law and Comparative Analysis 1. Introduction and framing of the issue I write this opinion from the standpoint of our law in Malawi, which is grounded in English common law and shaped by constitutional principles of legality, accountability, and the protection of public resources. The issue addressed is not whether unlawful administrative action should attract judicial scrutiny. That proposition is settled. The issue is whether, and to what extent, such unlawfulness can justify monetary compensation , particularly where the sums claimed are large, speculative, and potentially destabilising to the public fiscus. In my view, and consistent with common-law authority, a careful distinction must be maintained between a finding of illegality and an entitlement to damages. Failure to maintain that distinction risks converting public law into a mechanism for private extraction rather than a system of accountability. That risk is neither theoretical nor remote, particularly in...