Apex court rules out exemplary damages for death in lock-up cases

Lawyers Sivarasa Rasiah and Bani Prakash explaining to N Indra the outcome of today’s Federal Court ruling.

PUTRAJAYA: The Federal Court, in a majority decision, today held that the families of persons who die in custody are not entitled to exemplary damages for a breach of a constitutional right.

Justice Zaharah Ibrahim said the Federal Constitution did not give the Malaysian courts the same power as other jurisdictions.

In the cases of Romanoop (Trinidad and Tobago) and Merson (Bahamas), the constitutions of both countries allowed aggrieved parties to make claims for exemplary damages for breach of constitutional right.

“As our constitution does not have provisions similar to those utilised in Ramanoop and Merson, a claimant has to look elsewhere for redress,” said Zaharah in allowing the government’s appeal against the next of kin of three deceased persons.

One of the claimants is housewife N Indra, whose son A Kugan died in a police lock-up in 2009.

As a result, Indra is only entitled to RM450,000 in general damages, down from RM851,000 awarded by the High Court in 2013.

Others in the majority were Justices Ahmad Maarop, Suriyadi Halim Omar and Azahar Mohamed.

The sole dissenting judge was Justice Zainun Ali.

Zaharah said Sections 7 and 8 of the Civil Law Act (CLA) 1956 stopped the three respondents from bringing the suits.

A claimant usually files a dependency claim under Section 7 and an estate claim under Section 8 of the CLA.

In her dissenting judgement, Zainun said the death of an individual was a clear violation of the most fundamental liberty entrenched in Part 11 of the constitution.

She said the role of the court was to examine the award against the totality of the circumstances, including having regard to the conduct of the tortfeasor.

“It is recognised by the Common Law of England that the violation of a constitutional right entitles the court to award damages that seek to punish the tortfeasor,” she said.

Zainun said the family members were entitled to exemplary or aggravated damages when the state had deprived the victim of his life.

She said the CLA, being a pre-Merdeka law, must give way to the fundamental right enshrined in the constitution.

Zainun said it was the duty of the court to modify the CLA to bring it into accordance with the constitution.

She said Section 8 (2)(a) of the CLA should not be applied to deny damages to the estate of the deceased for the violation of the right to life.

“Custodial death should not ever become a new normal; for something is seriously wrong with a society if it does not find senseless loss of lives abhorrent,” she said.

The bench, however, upheld the finding of the trial judge that former Selangor police chief Khalid Abu Bakar and his police officers were responsible for the death of Kugan.

Trial judge VT Singham, in his 2013 judgment, said there was overwhelming evidence to establish a claim of assault, referring to the nature of injuries which “spoke volumes”.

Singham, who passed away last year, said Khalid was liable for misfeasance as he failed to carry out his duty as required of a senior civil servant.

The judge had said the injuries Kugan suffered could not have been done by one person and that the senior officers could not plead ignorance.

Indra filed a RM100 million suit against Khalid, former constable V Navindran, former Subang Jaya OCPD Assistant Commissioner Zainal Rashid Abu Bakar (deceased), the inspector-general of police, and the government.

Khalid was subsequently promoted to IGP.

Indra alleged that the defendants failed to ensure the safety, health and welfare of her son while he was in custody.

Kugan, then 22, was arrested in Puchong on Jan 14, 2009, and held overnight at the Puchong Jaya police lock-up before police obtained a remand order.

He was taken to the Taipan USJ, Subang Jaya, police station two days later for questioning and was found dead on Jan 20, 2009.

Navindran began a three-year jail term from May 22, 2015 after the Court of Appeal upheld the findings of the Sessions Court for causing hurt to Kugan.