Widow time-barred, can’t seek damages for lock-up death, says govt lawyer

 

A government lawyer says the Federal Court ruled last year that relatives of victims who died in custody must file their suits within 36 months of the incident. (Freepik pic)

KUALA LUMPUR: A widow whose husband died under police custody cannot bring another civil suit against Putrajaya because of a Federal Court ruling made last year, a government lawyer said.

Senior federal counsel Raja Zaizul Faridah Raja Zaharudin said a three-member apex court bench ruled on Dec 20 that relatives of victims who died in custody must file their suits against the government within 36 months of the incident.

“Section 2(a) of the Public Authorities Protection Act 1948 (PAPA) makes it mandatory for civil action to be filed within three years from the date of death in such cases,” she submitted in the High Court here today.

She was responding to R Kaliamah, who early this year filed the action for the government to compensate her for the death of her husband, P Karuna Nithi, at the Tampin police lock-up eight years ago.

Kaliamah, 44, who included her children, K Yugesh Varan, 22, and Kisho Kumar, 20, in the legal action, also wants a declaration that 16 defendants, including 14 policemen, had violated their rights under Article 5 (1) of the Federal Constitution.

Raja Zaizul said the court had no jurisdiction to set aside the time bar under the Act.

“Section 2(a) was passed by Parliament as provided for under the Federal Constitution. The court has no discretion to declare the provision unconstitutional,” she said in the proceedings conducted online before judicial commissioner John Lee.

Lawyer Gopal Sri Ram, who represented Kaliamah and her children, submitted that the plaintiffs had brought a constitutional claim as Karuna Nithi was deprived of his life.

Sri Ram said the Federal Court had refused to entertain Kaliamah earlier because it was a negligence claim under the law of tort.

He said a plaintiff and the government who want to bring an ordinary claim have six years to do so under the Limitation Act.

“PAPA discriminates against the plaintiff, who is given three years to file the negligence suit against the government,” he said.

The plaintiffs are also seeking for a declaration that Section 2(a) of PAPA is ultra vires Article 8(1) and 69(2) of the Constitution.

They want a consequential order that the provision be modified by the court under Articles 162 (6) and (7) to bring it into accord with the Constitution either by repealing it or by amending it, by substituting the words “thirty-six months” to “seventy-two months”.

Karuna Nithi was arrested on May 28, 2013, but died in custody on June 1, 2013, with 49 fresh injuries on his body.

In her affidavit, Kaliamah said the first to 13th defendants under the direction, law and policy administration of the inspector-general of police, the home minister and the government were vicariously liable.

Following an inquest, the plaintiffs filed a suit for negligence and assault against the defendants, for causing Karuna Nithi’s death, at the Seremban High Court on Jan 25, 2018.

However, Kaliamah said the defendants on Oct 8, 2018 succeeded in striking out the suit on grounds that it was time-barred by Section 2(a) of PAPA.

The Federal Court last December dismissed the appeal, as the cause of action should start from the date of the death of the deceased and not from the date of the inquest verdict.

The apex court said Kaliamah should have filed her claim on or before June 1, 2016.

Lee fixed Dec 21 to deliver his ruling. - FMT