Family of Nigerian student only entitled to funeral expenses, says lawyer

The families of individuals who die in custody are presently not entitled to exemplary damages for the breach of a constitutional right. (Reuters pic)

PETALING JAYA: An NGO against deaths and abuse in custody says the family members of a Nigerian PhD student who died in a detention centre last week will only be able to claim funeral expenses due to the current legal situation.

M Visvanathan, chairman of Eliminating Deaths and Abuse in Custody Together, said the next-of-kin of Orhions Ewansiha Thomas would not be able to make dependency claims or claims for loss of income as he would be deemed economically unproductive.

“At the time of death, he was not gainfully employed for his wife or children to sue the immigration department for compensation,” he told FMT.

In terms of funeral expenses, he added, the amendment to increase the RM10,000 limit for claims to RM30,000 was approved in Parliament last year but has yet to be gazetted.

Visvanathan, who is a lawyer, also cited the Civil Law Act which he said does not allow family members to file claims for exemplary damages in custodial deaths.

He referred to a majority Federal Court ruling in late 2017 which barred the next-of-kin of those who die from assault or health complications from making such claims.

He added however that exemplary damages should be given to the family members of those who die in police lock-ups and prisons, to serve as 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 or their health neglected until they die, because one has right to life,” he said.

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.

The ruling came after 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.

However, Visvanathan said there is hope of overturning the 2017 ruling as the Federal Court is scheduled to hear another case of a similar nature later this year.

In this 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 willing to pay RM144,000 for loss of income, RM10,000 for loss of dependency and RM3,500 for funeral expenses.

Last Friday, the immigration department said Thomas had experienced a seizure in his sleep prior to his death. However, it denied any foul play.

Thomas was arrested on July 9 alongside 19 others during a raid at the Desa Aman Puri Apartment in Kepong, Selangor. He was remanded for two weeks to facilitate the verification of his documents as well as details of his college records.

The 33-year-old had been pursuing a PhD in Management at the Limkokwing University of Creative Technology. He leaves behind a wife and two young children.