The Federal Constitution does not provide for compensation in cases of custodial death; claims must align with provisions reported in the Civil Law Act, which stipulate strict limitation periods.

JUDGMENT

John Lee Kien How @ Mohd Johan Lee JC:

Introduction

Facts Of The Case

[1] The 1st plaintiff ("P1") is the wife of the late Karuna Nithi ("the deceased") and the 2nd and 3rd plaintiffs ("P2" and "P3") are the children of the deceased. The 1st, 2nd and 3rd defendants were Tampin District Police Chief, Negeri Sembilan Head Chief Police and Tampin Head Police respectively. The 4th to 13th defendants were the police officers at Tampin lock-up. The 14th defendant and 15th defendant were Chief Police of Malaysia and Home Affairs Minister respectively. The 16th defendant is the Government of Malaysia.

[2] The deceased was arrested by the police on 28 May 2013. He died in police custody at Tampin, Negeri Sembilan on 1 June 2013. The Coroner Court through an inquest proceeding dated 28 January 2015 had confirmed that the deceased passed away due to physical assaults, degrading treatment, abuse, torture and unlawful acts of the defendants while the deceased was under the police custody in the lock-up.

[3] Following the inquest, the plaintiffs brought suit against the defendants on 25 January 2018 in the Seremban High Court vide Suit No NA-21NCVC-03-01-2018 pursuant to s 7 of Civil Law Act 1956 ("the CLA ") for damages in tort for custodial death ("the 2018 suit").

[4] However, the 2018 suit was struck out by the Seremban High Court on the ground that pursuant to s 2(a) of Public Authorities Protection Act 1948 (" PAPA "), limitation period of three years has already set in, considering the date of the death of the deceased was on 1 June 2013.

[5] The plaintiffs' appeal to the Court of Appeal against the High Court's decision was dismissed on the same ground of limitation. On 28 August 2019, leave to appeal was granted and later the Federal Court dismissed the appeal.

[6] The plaintiffs then filed an originating summons ("encl 1") in this Court for:

(i) a declaration that the defendants are liable to pay the plaintiffs such compensation as may be assessed by this Court for the violation of the plaintiffs' right under art 5 of the Federal Constitution ("the FC") by causing death of the deceased while in custody of the first to the 13th defendants and being the servants or agents of the 16th defendant;

(ii) an order that the defendants pay compensation to the plaintiffs;

(iii) an order that the defendants pay to the plaintiffs exemplary damages for violation of the plaintiffs' rights guaranteed by Part II of the FC;

(iv) a declaration that s 2(a) of the PAPA is ultra viresart 8 and/or art 69(2) of the FC; and

(v) a consequential order that the said s 2(a) of the PAPA be modified in accordance with art 162(6) and (7) of the FC to bring the same into accord with the Constitution by either repealing the said section or by amending it by substituting the words '36 months' to '22 months'.

Submission By The Plaintiffs

[7] The plaintiffs filed encl 1 before this Court to seek compensation for the violation of the plaintiffs' constitutional right under art 5(1) of the FC.

[8] The plaintiffs submitted that the present suit is for a declaration of constitutionality, which had not been the subject matter of the earlier action. The earlier action was to claim for damages in tort pursuant to s 7 of the CLA .

[9] The plaintiffs argued that the same set of facts may give rise to more I than one cause of action. They referred to the cases of Telfair Shipping Corporation v. Inersea Carriers [1983] 2 Lloyds 351, Brunsden v. Humprey [1884] 14 QBD 141, Md Khalil Khan v. Mahbub Ali Mian AIR [1949] PC 78, Wilson v. United Counties Bank Limited [1920] AC 102, Ng Kong Choon v. Tan Wee Goh [2016] 3 SLR 935, Tong Lee Hwa & Anor v. Lee Yoke San, [1979] 1 MLJ 24 and Syed Mohd Salie Labbai v. Mohd Haniffa [1976] 4 SCC 780.

[10] The previous suit was an action in tort and under private law. The present suit is an action in public law for constitutional compensation. They are two separate and distinct causes of action, according to the plaintiffs.

[11] Thus, the plainti