Senior federal counsel Andi Razalijaya A Dadi said an apex court bench, in a 4-1 majority ruling, had allowed the government’s appeal and set aside RM300,000 awarded in exemplary damages.
In that case on Nov 6, 2017, judge Zaharah Ibrahim, who delivered the majority judgment, had said the Federal Constitution did not give Malaysian courts the power to award exemplary damages for a breach of a constitutional right.
That ruling denied a mother of RM300,000 in damages, although it was proven that the victim (N Kugan) died after being assaulted.
Razalijaya said Section 8(2) of the Civil Law Act 1956 was an absolute bar to the award of such damages in an estate claim.
“That provision states that damages could be awarded for the benefit of the estate of the deceased but cannot include exemplary damages,” he told the seven-member bench, chaired by Rohana Yusof, today.
Exemplary damages, often called punitive damages, are awarded in a lawsuit when the defendant’s wilful acts are malicious, violent, oppressive, fraudulent, wanton or grossly reckless.
Razalijaya said Section 8 (2) followed the common law of England and a person’s death did not allow the family members to make a claim against those responsible.
The government is appealing against the RM200,000 payment in exemplary damages given to widow Selvi Narayan and daughter Rita of lorry driver P Chandran.
On May 22, 2017, the Court of Appeal affirmed a High Court ruling that Selvi and Rita were entitled to receive compensation as Chandran’s death was due to negligence and abuse of public office by the police.
Five months earlier, then High Court judge S Nantha Balan held the police liable for the death of Chandran at the Dang Wangi police lock-up four years earlier after his medical needs were not attended to.
The government was only prepared to pay RM144,000 for loss of income, RM10,000 for loss of dependency and RM3,500 in special damages for funeral expenses to Chandran’s family.
On Jan 10, 2018, the government obtained leave to appeal against the Court of Appeal decision as it went against the majority Federal Court judgment made two months earlier (Nov 6, 2017).
Lawyer M Visvanathan, who appeared for Chandran’s family, submitted that the bench should depart from the majority decision and recognise the minority judgment.
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 Federal Constitution.
Visvanathan said exemplary damages should be given to serve as a deterrent and a warning to law enforcement agencies that no lives could 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 Constitution,” he said.
He said Zainun had also said the Civil Law Act was pre-Merdeka law, but Article 160 of the Constitution allowed such a statute to be modified to harmonise the fundamental liberties like right to life.
The lawyer said that last year, a High Court in Johor awarded RM383,300, which included RM150,000 in exemplary damages, to family members of a welder after it was proven that police had caused his death.
“The government did not appeal the award of RM150,000. This implies that it was finally accepting that such damages could be awarded to family members of victims whose lives were not protected while under custody,” he said.
In that case, judge See Mee Chun found the police liable for causing injuries to Syed Mohd Azlan Syed Mohamed Nur, which ultimately led to his death in 2014.
The bench has reserved judgment to be delivered on a date to be fixed.
Other members of the bench were Abang Iskandar Abang Hashim, Nallini Pathmanathan, Abdul Rahman Sebli, Zaharah Mohd Yusof, Hasnah Mohammed Hashim and Rhodzariah Bujang.