PETALING JAYA: An NGO against deaths and abuse in custody has urged Putrajaya to amend the Civil Law Act (CLA) to allow family members to file claims for exemplary damages in the case of custodial deaths.
Eliminating Deaths and Abuse in Custody Together (EDICT) chairman M Visvanathan said next-of-kin are presently barred from making such claims due to a majority Federal Court ruling in late 2017.
Adding that the ruling had sent “the wrong message” to law enforcement officers, he said damages could only be paid to those who survived assault while held lawfully for questioning by the police.
Visvanathan, who is also a lawyer, was responding to Parliament’s move to pass amendments to the CLA but not to rectify the effect of the apex court ruling.
He said EDICT welcomes the legislature’s approval for an increase in age limit from 55 to 60 for claims in the event that breadwinners die in road accidents.
“This will enable family members to get more compensation based on a set formula,” he said.
He also noted another amendment increasing the RM10,000 limit for funeral expense claims to RM30,000.
He said the legal fraternity had agreed that exemplary damages should be given to family members of those who die in police lock-ups and prisons, to serve as a deterrent and a warning that no lives can be taken “save in accordance with the law”.
“Exemplary damages must be provided to send a strong message to law enforcement agencies that suspects cannot be tortured until they die because the right to life is fundamental in our Federal Constitution,” he added.
On Nov 6, 2017, the Federal Court held in a 4-1 ruling that the families of individuals who die in custody are not entitled to exemplary damages for the breach of a constitutional right.
Justice Zaharah Ibrahim, who delivered the judgment for the majority, said the constitution does not give courts the power to compensate the family members of such victims.
This meant that 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.
Indra had filed the suit seeking damages for alleged negligence, assault, false imprisonment, and misfeasance of public office, as well as breach of statutory duties.
Zainun Ali, in her dissenting judgment, said the death of an individual is 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.
Visvanathan voiced hope for a reversal of the majority ruling in Kugan’s case when the Federal Court hears another case of a similar nature in July.
In that case, the family of lorry driver P Chandran, who died in a police lock-up in 2012, was awarded RM200,000 in exemplary damages. However, the government has appealed to quash the payment.
It is only prepared to pay RM144,000 for loss of income, RM10,000 for loss of dependency, and RM3,500 for funeral expenses.