Amend law to compensate for custodial deaths too, says lawyer

PETALING JAYA: A lawyer has called for amendments to the Civil Law Act (CLA) 1956 to allow families of those who die in custody to be awarded exemplary damages.

M Visvanathan said such damages must be awarded when a tortfeasor takes the life of a person through oppressive, arbitrary and unconstitutional means.

“The CLA must be amended and brought in line with the right to life enshrined under Article 5 (1) of the Federal Constitution,” he told FMT.

Visvanathan was responding to last week’s Federal Court ruling which dismissed an appeal by Stampin MP Chong Chien Jen and held that federal and state governments could sue individuals for defamation.

Justice Ahmad Maarop, who delivered the unanimous ruling, said in Malaysia, the right of governments to sue was provided for under Section 3 of the Government Proceedings Act (GPA) 1956.

He said the common law principle based on the 1994 case of Derbyshire was not suitable in Malaysia as there were also restrictions to the right to freedom of speech under Article (10 (1) (a) of the constitution.

He said Parliament imposed restrictions for defamation and the incitement to any offence.

The ruling sparked criticism from the legal fraternity and civil society, as well as calls for the GPA to be amended and brought in line with the fundamental liberties outlined in the constitution.

Visvanathan supported the call to amend the GPA to give citizens the right to criticise their elected government.

“Similarly, the CLA must be amended to allow the family members of individuals who are victims of custodial deaths to claim exemplary damages,” he said.

He said the legislature had to step in since the Federal Court had failed to modify the CLA and GPA in accordance with the fundamental rights guaranteed in the constitution, adding that both cases involved pre-Merdeka statutes.

He also said it was illogical for the law to provide compensation only for victims who are alive.

“A majority Federal Court ruling last year which denied exemplary damages to families of custodial death victims also sent the message that it was all right for law enforcement authorities to take the lives of detainees or prisoners.”

He said awarding exemplary damages would make the authorities more careful about handling detainees as deaths in lock-ups or detention centres would invite civil suits.

“They will be held responsible and accountable as the courts will order damages to drive home the point that such deaths should not have taken place.”

Last year, the Federal Court in a 4-1 ruling removed the RM300,000 exemplary damages awarded to housewife N Indira, whose son N Kugan died in a police lock-up.

She only received RM450,000 in general damages.

The majority judgment came from Ahmad, Suriyadi Halim Omar, Azahar Mohamed and Zaharah Ibrahim who held that the CLA did not provide for exemplary damages to be awarded to victims’ next-of-kin.

Zainun Ali, in her dissenting judgment, 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 with regard to the conduct of the tortfeasor.

Zainun also said custodial deaths should never become the norm.

“Something is seriously wrong with a society if it does not find senseless loss of lives abhorrent,” she said.