NOV 8 — Four police officers (the first to second defendants) were sued by the administrator of the estate and dependant of one Balamurugan a/l Suppiah (Deceased).
On February 7, 2017 at around 11pm, the Deceased was found unconscious while being detained at the North Klang District Police Headquarters and a Medical Officer was called. However, the Deceased was pronounced dead the next day at around 12.10 am.
Two postmortems were conducted on the Deceased by two separate pathologists. Both postmortem reports confirmed that the cause of death of the Deceased was coronary artery disease with multiple blunt-force trauma and that the injuries found on the Deceased were not accidental or self-inflicted.
A public hearing was later conducted by the Enforcement Agency Integrity Commission (EAIC) regarding the death of the Deceased. The EAIC found that the police force was responsible for causing his death — and hence the suit.
The death of the Deceased whilst in police custody was out of the ordinary. Prima facie, it proved the existence of negligence, and the onus was cast upon the police officers to give a credible explanation to rebut the presumption of negligence.
From the evidence, the learned trial judge was satisfied that although the Deceased was quite sickly when he was detained by the police, he was confirmed dead whilst in the defendants’ custody.
Based on evidence before him, the learned trial judge found that there were injuries sustained by the Deceased which were fresh and occurred recently before his death.
The learned trial judge made reference to the EAIC report, where it was found inter alia that the injuries found on the Deceased were consistent with testimonies regarding the acts of physical violence committed by the second defendant on him.
This uncontroverted evidence was held by the learned trial judge to be strong evidence that the plaintiffs had proved that the second defendant was culpable for the death of the Deceased.
The learned trial judge ruled that the four defendants had a statutory duty of care towards the Deceased pursuant to Section 20 of the Police Act 1967 and the defendants had breached the duty.
Accordingly, the learned trial judge held that the four defendants were liable for the death-in-custody of the Deceased. The Inspector General of Police (IGP) and the Government, who were the fifth and the sixth defendants respectively, were held vicariously liable for the acts of the four defendants pursuant to Section 5 of the Government Proceedings Act 1956.
Dissatisfied, the defendants appealed to the Court of Appeal.
On November 16, the Court of Appeal allowed the appeal on liability in part by rejecting the dependency claim under Section 7 of the Civil Law Act 1956 (CLA) but upheld the judgment on the claim by the estate of the Deceased under Section 8 of CLA and remitted the matter back to the High Court for assessment of damages.
High Court judge Su Tiang Joo took over the conduct of the suit upon his transfer to the High Court at Kuala Lumpur in February 2023.
The learned judge considered the tort committed by the second defendant as “not a mere tort of negligence” but a “constitutional tort” because the second defendant deprived the life of the Deceased by beating him up and the Deceased was denied prompt medical attention. The life of the Deceased “was taken in breach of his fundamental liberty housed in Article 5 of the Federal Constitution by the second defendant”.
The term “constitutional tort”, it is said, was coined by American law professor, Marshall Shapo, in 1965 to describe a suit brought against a government official for a constitutional violation. In the years after Shapo’s illuminating thoughts on constitutional tort, conventional casebooks on constitutional law and the US federal courts gave little attention to the area.
It was not until 1978 that the term was used in the US Supreme Court in Monell v. Department of Social Services, a landmark case that established local governments can be held liable for constitutional violations that result from their official policies or customs, rather than just the actions of individual employees.
The case created a framework for suing local governments for damages stemming from unconstitutional policies and is a crucial decision for establishing governmental accountability in civil rights cases.
In Malaysia, while it is arguably open for victims to seek civil remedies for violation of a fundamental right under the Federal Constitution by making a claim for a “constitutional tort” or “breach of a constitutional right”, the application of the term has not “as yet been determined decisively”.
Malaysian courts have yet to fully endorse infringements of the Federal Constitution as giving rise to a distinct cause of action, with that possibility having only been considered in minority Federal Court decisions in connection with claims for deaths in custody. (See Malik Imtiaz Sarwar et al, “Civil Liability for Human Rights Violations — A Handbook for Practitioners: Malaysia”, University of Oxford 2022, at pages 12-13)
The minority decisions can be seen in the dissenting judgments of Nallini Pathmanathan FCJ in Koperal Zainal Mohd Ali & Ors v Selvi Narayan & Anor [2021] 3 MLJ 365, Tengku Maimun CJ in Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 2 CLJ 579, and Zainun Ali FCJ in Ketua Polis Negara & Ors v Nurasmira Maulat Jaffar & Ors and Other Appeals [2018] 1 CLJ 585.
Justice Su Tiang Joo, who considered the second defendant as having committed a constitutional tort by beating up the Deceased “in his unlawful efforts to extract a confession for an alleged crime leading to the deprivation of the life of the [Deceased], a fundamental liberty guaranteed by the Federal Constitution” is the judge who on Wednesday (October 5) ordered the government to pay nearly RM37 million to the family of Pastor Raymond Koh for enforced disappearance and over RM3 million to that of activist Amri Che Mat for negligence in a police investigation.
According to the learned judge, the compensation to Pastor Raymond Koh’s is “for deprivation of personal liberty under the Federal Constitution”, ruling that the federal government and the police were liable for breaching their statutory duties and saying the officers involved in the investigation had acted unconstitutionally.
That’s constitutional tort.
When Malaysian courts have yet to fully endorse the term, let it be canvassed and determined by the higher courts. That’s only possible when Justice Soo’s decision is appealed against.
If what the police did offended “the concept of fairness, reasonableness and justice”, the same cannot be said if the Attorney General’s Chambers (AGC) were to appeal against the decision, which the AGC said it will.
Respect Justice Su’s decision. Respect the right of appeal too.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
