PETALING JAYA: A Federal Court majority ruling which stops family members from filing a claim for exemplary damages is a licence for law enforcement officers to kill suspects under their custody, a retired judge and lawyers said.
Not only was the majority decision wrong, it sent a dangerous message to enforcement agencies, they said.
Retired Federal Court judge Gopal Sri Ram said the majority verdict was an advice to the government that it was cheaper to kill than to maim.
He said the position now was that if a suspect was assaulted in custody and beaten within an inch of his life, then the government was liable to pay exemplary damages to the victim.
“But if the victim dies as a result of the violence inflicted on him there is no need to pay exemplary damages because the Civil Law Act (CLA) 1956 says so,” he told FMT.
Sri Ram said the sad thing about the judgment was that it appeared to have been produced with blinkers on.
“The majority has provided no real answer at all to the dissenting judgment of Justice Zainun Ali,” he said, adding that the majority judgment was the most disappointing and was a blot on Malaysian constitutional jurisprudence.
Sri Ram said it was as if the apex court was travelling at a furious pace in a backward direction.
“As custodial deaths are common, it is entirely possible for the dependents of victims who are killed to re-visit the case again,” he said.
He was responding to yesterday’s 4-1 ruling which held that the families of persons who die in custody are not entitled to exemplary damages for a breach of a constitutional right.
Delivering the judgment for the majority, Justice Zaharah Ibrahim said the Federal Constitution did not give the Malaysian courts the power to compensate the family members of such victims.
Others in the majority were justices Ahmad Maarop, Suriyadi Halim Omar and Azahar Mohamed.
As the government’s appeal was allowed, housewife N Indra, whose son A Kugan died in a police lock-up in 2009 was denied RM300,000 in exemplary damages – leaving her with a final compensation of RM401,700.
She filed the suit seeking damages over alleged negligence, assault, false imprisonment and misfeasance of public office as well as breach of statutory duties.
Zainun in her dissenting judgement, said the death of an individual was a clear violation of the most fundamental liberty entrenched in Part 11 of the constitution.
“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.
She said the CLA, being a pre-Merdeka law, must give way to the fundamental rights enshrined in the constitution.
Zainun said it was the duty of the court to modify the CLA to bring it into step with the constitution.
Lawyer Sivarasa Rasiah, who represented Indra in court, said he was “deeply disappointed” as the majority ruled on a literal reading of the constitution.
“The judgment is illogical as it is giving a licence to kill,” said Sivarasa.
He said the majority verdict was a violation of Kugan’s right to life and seemed to suggest that only survivors of brutality could file claims for exemplary damages.
Lawyer M Visvanathan said the verdict was a sad day for justice as law enforcement agencies need not be held accountable for custodial deaths.
“The court is the final bastion of justice and this ruling has diminished that hope,” he said.
Visvanathan said the next-of-kin of such victims were now only entitled to file a dependency claim.
“However, if the deceased is not gainfully employed at the time of his custodial death, the family members can only get a paltry sum for bereavement and funeral expenses,” he said.