Death in custody: widow not entitled to constitutional compensation, rules court

 

The civil suit by R Kaliamah and her children against the government was dismissed because it was time-barred. (Reuters pic)

KUALA LUMPUR: The High Court here has dismissed a widow’s application for constitutional compensation after her husband died in police custody in Tampin, Negeri Sembilan, nine years ago.

Judicial commissioner John Lee said in an oral judgment that such compensation is not provided for in the Federal Constitution.

He said Section 2(a) of the Public Authorities Protection Act 1948 (PAPA) is not ultra vires Article 8 of the Federal Constitution and, as such, is constitutional.

Lee said there is no issue about “equal treatment” under PAPA.

He said the full grounds for his decision will be delivered next week.

In an online proceeding, Lee also awarded RM9,000 in costs to the government, though senior federal counsel Raja Zaizul Faridah Raja Zaharudin asked for RM20,000.

Lawyer T Manoharan, who appeared for R Kaliamah with S Mathan Raj and Yasmeen Soh Sha-Nisse, said an appeal will be filed.

On Dec 22 , Raja Zaizul said in her submission that Kaliamah cannot bring another civil suit against Putrajaya because of a Federal Court ruling made last year.

She said a three-member apex court bench had ruled that relatives of victims who died in custody must file their suits against the government within 36 months of the incident.

Kaliamah should have filed her claim on or before June 1, 2016.

“Section 2(a) of PAPA makes it mandatory for civil action to be filed within three years from the date of death in such cases,” she had said.

Kaliamah, 44, filed the action for the government to compensate her for the death of her husband, P Karuna Nithi.

She also included her children, K Yugesh Varan, 22, and Kisho Kumar, 20, in the suit.

The widow also wants a declaration that 16 defendants, including 14 policemen, had violated their rights under Article 5(1) of the Federal Constitution.

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.

They want a consequential order that Section 2(a) of PAPA 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 that year. He had 49 fresh injuries on his body.

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