Justice Nazlan Ghazali said R Kaliamah’s present action was similar to a negligence suit she took out previously that was struck out as being out of time.
He also said the Federal Constitution did not provide for compensation as a remedy, citing two Federal Court rulings as precedent.
“Any attempt to award such compensation could be construed as unauthorised judicial legislation and potentially breach the doctrine of separation of powers,” Nazlan said when delivering the unanimous decision of the bench today.
The appeal was heard by a three-member bench chaired by Justice S Nantha Balan. Also on the panel was Justice Choo Kah Sing.
Nazlan said any claim for damages by Kaliamah over the death of her husband, Karuna Nithi, was only permissible in accordance with Sections 7 and 8 of the Civil Law Act 1956.
He also said Section 2(a) of the Public Authorities Protection Act 1948 (PAPA) is not ultra vires Article 8 of the constitution.
The court found that the provision was not discriminatory as anyone could take legal action against public authorities subject to the law of limitation, which prescribes that such cases should be made within 36 months of the date when the cause of action arises.
He also said PAPA and the Limitation Act were two separate pieces of legislation with different objectives and applications.
The appeals court was hearing an appeal from a ruling by the High Court. On Feb 22 last year, then judicial commissioner John Lee had ruled against the widow, holding that the Federal Constitution did not provide for compensation.
Kaliamah and her children, K Yugesh Varan, 23, and Kisho Kumar, 21, had filed the suit in February 2021, seeking a declaration that 16 defendants, including 14 policemen, had violated the deceased’s rights under Article 5(1) of the constitution.
The plaintiffs were also seeking a declaration that Section 2(a) of PAPA is ultra vires Articles 8(1) and 69(2) of the Federal Constitution.
They also wanted the court to strike out the limitation period set out in PAPA or modify it under Articles 162(6) and (7) of the Federal Constitution from 36 to 72 months so that it is consistent with the Limitation Act.
Karuna was arrested on May 28, 2013.
He was found to have had 49 fresh injuries on his body when he died in custody on June 1 that year.
Following an inquest, the plaintiffs filed a suit at the Seremban High Court on Jan 25, 2018 against the defendants alleging negligence and assault.
The suit was struck out by the High Court on Oct 8, 2018 for being time-barred by Section 2(a) of PAPA.
The Court of Appeal maintained the lower court’s decision.
In December 2020, the Federal Court dismissed Kaliamah’s final appeal, ruling that the cause of action should arise from the date of the deceased’s death and not the date of the inquest’s verdict.
The apex court said Kaliamah should have filed her claim on or before June 1, 2016.
In the Court of Appeal today, senior federal counsel Donald Joseph Franklin and federal counsel Nurul Farhana Khalid appeared for the government, while lawyers T Manoharan and S Mathan Raj represented Kaliamah.