Friday, August 8, 2014

Court: 'Zero tolerance' on custodial deaths

0:30AM Aug 8, 2014   Hafiz Yatim ( Malaysiakini) 

Court: 'Zero tolerance' on custodial deaths

The Court of Appeal said today there should be zero tolerance of custodial deaths and is recommending that independent public inquiries be held on all such cases.

The appellate court said this when allowing the reduction in the quantum of damages, including waiving of a false imprisonment claim, in relation to the death of A Kugan in police custody five years ago.

With this, Kugan's family is awarded RM701,700 in exemplary damages including tort of public misfeasance (abuse of power).

The summary judgment of the decision was read out by Court of Appeal judge David Wong Dak Wah.

The other judges who were favourable to maintaining most of the damages were Justice Mohd Arif Mohd Yusof and Justice Mah Weng Kwai.

Justice Mohd Arif led the three-member bench.

Justice Wong, in describing this as a difficult case as the law had yet to be developed especially in cases of public misfeasance, said custodial deaths cannot and should not happen in this country.

“There should be zero tolerance to any custodial death in all remand centres in the country. And should custodial death happen, a public independent inquiry must be initiated commensurate with the right of the family of the deceased to know when there is some doubt as to the cause of death.”

Kugan's mother Indra Nallathamby, 44 (right), named the then Selangor police chief Khalid Abu Bakar (now inspector-general of police), police constable Navindran Vivekanandan, the then Subang Jaya police chief Zainal Rashid Abu Bakar (now deceased), as well as the then inspector-general of police and the government as defendants.

No ombudsman system

Justice Wong noted that since the country does not have an ombudsman system, as recommended by the royal commission of inquiry, the court would have to take up the role.

An ombudsman, as imposed in some parliamentary democracies, is a public advocate with a significant degree of independence, who will be responsible in looking at the interests of the public in investigating mal-administration and violation of rights.

“In Malaysia, we do not have an ombudsman or an Independent Police Complaints and Misconduct Commission (IPCMC) for police reform.

“In this case, the intention of Kugan’s family is clear and that is to hold the defendants responsible and accountable for their unlawful action as public officers.

“It is not just a case of merely being compensated, it is more and that is to ensure that the public officials who are supposed to be guardians of the constitution are brought to task and that such unlawful actions should not happen again.

“Remand prisoners are innocent until convicted in a court of law and are entitled to their basic human rights,” Justice Wong said in reading out the judgment.

Why false imprisonment claim was not allowed

In ruling out the claim for false imprisonment, Justice Wong said that while the judge at the High Court in Kuala Lumpur ruled that this was the case, the appellate court decided otherwise.

He said the remand of Kugan was the consequence of a judicial act, being an order given by a magistrate on Jan 15, 2009.

“Unless and until this remand is set aside by way of a criminal appeal or revision by the High Court, that remand remains lawful. It is undisputed that no such application to the High Court had been made by the plaintiff (Kugan's mother) to declare the remand order as unlawful.

“We are of the view that a separate suit, by way of criminal revision, should have been commenced and not through this civil suit. It is our respective view the abuses which the deceased endured do not and cannot give rise to a cause of action of false imprisonment.

“Accordingly, we find that the tort of false imprisonment is not available to the plaintiff as there is a valid remand,” the judgment states.

Hence, for this reason, the Court of Appeal did not allow the false imprisonment claim of RM100,000 that the High Court also awarded.

Constable Navindran's liability reduced

The court said there is merits to the appeal by Navindran, the police constable charged with injuring Kugan, as the trial judge also found there were other policemen involved in beating up Kugan.

Wong said despite those findings, the trial judge (Justice VT Singham) did not take this into consideration when determining the liability of Navindran (right).

“This failure warrants us to allow the appeal in part only, in that we also find him responsible partly for the death of the deceased. The degree of responsibility, in our view, should be reduced to 45 percent and our reason is that the defendant is not alone in this tragedy.

“By the defendant's admission, other police officers, by virtue of their involvement, had been assigned to desk duties as a form of punishment,” he said.

In agreeing to give the tort of public misfeasance, the court ruled there were violations to Kugan's right in terms of right to liberty and equality before the law.

The full judgment will be out on Monday.

Indra was represented by R Sivarasa and L Bani Prakash, while senior federal counsel Azizan Md Arshad appeared for the police and government, while Ramesh Sivakumar appeared for Navindran.

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