Koperal Zainal bin Mohd Ali dan 6 lagi v Selvi a/p Narayan (Pentadbir Bersama Estet dan Tanggungan Chandran a/l Perumal, si mati) dan satu lagi (01(f)-2-01/2018(w))

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TANGGUNGAN CHANDRAN A/L PERUMAL, SI MATI) …RESPONDENTS [In The Court Of Appeal Of Malaysia

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(No K/P: 700430-10-5118)

(No K/P: 930504-01-6198) TANGGUNGAN CHANDRAN A/L PERUMAL, SI MATI)…RESPONDENTS] [In The High Court Of Malaya At Kuala Lumpur (Civil Division)

(No. K/P: 700430-10-5118) (PENTADBIR BERSAMA ESTATE DAN TANGGUNGAN

(No. K/P: 930504-01-6198) (PENTADBIR BERSAMA ESTATE DAN TANGGUNGAN CHANDRAN A/L PERUMAL, SI MATI …. PLAINTIFFS 3

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….. DEFENDANTS] CORAM: ROHANA BINTI YUSUF, PCA ABANG ISKANDAR BIN ABANG HASHIM, CJSS NALLINI PATHMANATHAN, FCJ ABDUL RAHMAN BIN SEBLI, FCJ ZABARIAH BINTI MOHD. YUSOF, FCJ HASNAH BINTI DATO’ MOHAMMED HASHIM, FCJ RHODZARIAH BINTI BUJANG, FCJ GROUNDS OF JUDGEMENT Introduction [1] Custodial deaths are one of the most reprehensible of wrongs in a civilized society governed by the rule of law. All the more so, when those conferred with the responsibility of 4 protection and care on behalf of the State, like the Appellants here, are themselves the perpetrators of inhumane acts and omissions of neglect or violence, resulting in the detainee’s death. [2] The sanctity of human life is the most cherished value of an evolved society. Accordingly, most legal systems identify, acknowledge and protect the right to life as the most basic of human rights. Malaysia is no exception. Such protection takes its form in Art 5(1) of Part II of the Federal Constitution (‘FC’). It provides that no one shall be deprived of his life or personal liberty save in accordance with law. [3] This precious right of life is available to all and cannot be denied to persons in custody, prisoners or persons awaiting trial. On the contrary, there is a great responsibility on the police and prison authorities to ensure that citizens held in custody are not deprived of this fundamental right, save for such restrictions as are permitted by law. Unfortunately, Chandran a/l Perumal was deprived of his fundamental right to life while being held in custody. 5 The Custodial Death of Chandran a/l Perumal [4] In the appeal before us, one Chandran a/l Perumal (‘Chandran’) died while in police custody at the detention facilities of the Dang Wangi police station. An inquest was conducted to ascertain Chandran’s cause of death. The coroner, in his verdict found that the police had acted inhumanely towards Chandran. He had deliberately been deprived of essential medication to treat his medical condition. The cause of death was hypertensive heart disease. [5] Chandran was taken into custody on 6 September 2012, on suspicion of having being involved in the kidnapping of a baby together with two others. The High Court found subsequently that there was no basis for the complaint. [6] Soon after his arrest, his family informed the police of his medical condition, and tried to hand over his medication at the station, to no avail. Chandran began behaving bizarrely, shouting and ranting while in detention, probably as a consequence of not having his medication. He was accorded no medical treatment despite an express order made by the 6 Magistrate during the remand hearing that he should be given adequate medical treatment. [7] Chandran was then isolated in a cell with no toilet and a bare floor on which to sleep. It appears that he did not eat or drink during his detention. There were also some injuries on his person which were assessed to have most likely occurred during the period of detention. [8] In summary, during his detention, he was deprived of medication, medical care, food, drink and sleep. He was also physically injured. [9] Chandran died on the morning of 10 September 2012 at around 7.48 am while in isolation in his cell, according to the pathologist. However, the police recorded his death as having occurred some 12 hours later at around 7 pm. Claim by Chandran’s Estate [10] Chandran’s administrators brought a claim against the Appellants premised on both the Civil Law Act 1956 (‘CLA’), 7 more particularly sections 7 and 8, as well as for the breach of Chandran’s constitutional right to life. [11] The learned Judge of the High Court, after a lengthy trial handed down a meticulously reasoned judgement, concluding that Chandran’s death was caused by the failure to accord Chandran the basic requirements of proper medication, medical attention and assistance. His death could have been avoided. The Appellants were found liable for Chandran’s death in, inter alia, negligence and public misfeasance. The High Court Judgement [12] In His Lordship’s comprehensive judgement, the High Court Judge found liability against the Appellants in the tort of negligence, entitling the estate to damages for the wrongful death. He also found that Chandran’s constitutional right to life under Art 5(1) FC had been infringed. Damages were awarded, including exemplary damages of RM200,000-00 for the breach of Chandran’s constitutional right to life. 8 The Appeal to the Court of Appeal [13] The Appellants appealed to the Court of Appeal solely against the grant of exemplary damages as well as the quantum so awarded. The Court of Appeal upheld the decision of the High Court, and dismissed the appeal. The Question of Law before this Court [14] Leave was granted to the Appellants to have the following question of law determined: “Whether section 8(2) of the Civil Law Act 1956 [Act 67] is an absolute bar to the award of exemplary damages in an estate claim?” The focus of the question is on exemplary damages. This is because section 8(2) CLA prohibits the grant of exemplary damages in an estate claim for wrongful conduct. Etymologically ‘exemplary’ is derived from the Latin word ‘exemplum’ which means ‘example’. So when we speak of exemplary damages, it is to make an example of the persons or body that behaved abhorrently, resulting in the damage or loss, here the loss of life. So the awarding of exemplary damages against the Appellants, the police here, is to make an example of this case by awarding damages as a punishment and deterrence. 9 [15] This question of law relating to the grant of exemplary damages is framed solely within the context of the Civil Law Act 1956 (‘CLA’). It makes no reference to the finding of an infringement of Chandran’s constitutional right to life under Art 5(1) FC. The Decision of this Court in Nurasmira’s case [16] This Court had occasion to consider a similar question in Ketua Polis Negara & Ors v Nurasmira Maulat bt Jaafar & Ors and other appeals (Kugan and Gaur Chandram) [2018] 3 MLJ 184 (‘Nurasmira’), which comprised three independent appeals. [17] Three appeals were dealt with in Nurasmira’s case. The details are set out there and I do not propose to reproduce them here. All three appeals were premised on claims based on sections 7 and 8 of the CLA 1956. None of them expressly pleaded an infringement of Art 5(1) FC. In the instant case such a plea has been made. 10 [18] One of the questions of law in Nurasmira, more particularly in the appeal relating to Kugan a/l Ananthan (‘Kugan’), who had sought exemplary damages, is similar to the question of law in this appeal. [19] In Kugan’s appeal the question of law was whether section 8(2) of the CLA, which bars the awarding of exemplary damages in an estate claim is applicable where the death of the deceased is as a result of a breach of his constitutional right to life. [20] This Court held by a majority that exemplary damages were not available for custodial deaths under sections 7 and 8 of the CLA, even where the death of the deceased was as a result of a breach of the constitutional right to life. The Majority Judgement in Nurasmira [21] In the majority judgement, this Court speaking through Zaharah Ibrahim FCJ (later CJM) held, inter alia, that:

The right of the dependents of a deceased person and the estate of a deceased person to claim damages 11 relating to wrongful deaths was conferred by statute and as such that claim had to be determined strictly within the confines of the statute (see Sambu Pernas Construction & Anor v Pitchakkaran Krishnan [1982] 1 MLRA 143 (‘Sambu Pernas’) and sections 7 and 8 CLA);

(ii) The Court of Appeal in allowing exemplary damages by relying on Ashley v Chief Constable of Sussex Police [2008] 2 WLR 975 HL (‘Ashley’) had misapprehended the judgement of Lord Scott of Foscote in the case. This, it was stated, was because he did not state that exemplary damages are maintainable in a claim for damages for assault and battery. Instead this Court pointed to the fact that he had said that vindicatory damages could be awarded for the breach of a fundamental right. Such vindicatory damages were to vindicate the transgressed rights of the claimant. No exemplary damages were therefore available to the estates of the deceased victims in the three appeals before the apex Court, premised on a reading of Ashley. This 12 was fortified by the decision of the English Supreme Court in Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12 where Lord Dyson was of the opinion that vindicatory damages ought not be introduced into the law of tort as it would amount to letting “an unruly horse loose on our law”. As the present appeal did not deal with vindicatory damages but instead exemplary damages the reliance on Ashley was misplaced;

(iii) Section 8(2) CLA expressly disallowed exemplary damages and this had to be given effect;

(iv) The Court of Appeal erred in awarding exemplary damages as a consequence of a breach of a constitutional right in Kugan’s case. This was because, it was held, the reliance placed on Ashley which in turn referred to the Privy Council decisions in Attorney General of Trinidad and Tobago v Ramanoop [2006] 1 AC 328 (‘Ramanoop’) and Merson v Cartwright and Another [2006] 3 LRC 264 (‘Merson’) had been misunderstood. 13

Ramanoop and Merson were cases occurring in Trinidad and Tobago and the Bahamas respectively, where applications for redress could be made directly to the apex court under their constitutional provisions. It was held that the Federal Constitution does not confer upon the courts such a jurisdiction nor such powers (see paragraph 116).

(vi) In Ramanoop the application for relief was made to the High Court, pursuant to specific provisions in the Constitution of Trinidad and Tobago. These constitutional provisions allowed for such an application “without prejudice to any other action with respect to the same matter which is lawfully available”. In other words, tortious claims could also be brought under their relevant legislation. And in Merson, similarly, the Constitution of the Bahamas contains provisions similar to that of Trinidad and Tobago. However, the apex court would not exercise its power under the paragraph if satisfied that 14 adequate means of redress were available to the persons aggrieved under any other law.

(vii) This Court concluded that as the FC does not have provisions similar to those utilized in Ramanoop and Merson, any afflicted claimant, like Chandran in the instant appeal, would “have to look elsewhere for redress”. The only available law was, it was held, the CLA with its limitations which contained a bar against the grant of exemplary damages in section 8(2).

(viii) In short, it was held that notwithstanding the infliction of grievous wrong transgressing a person’s life, in contravention of the express provisions of the FC, this Court could afford no relief whatsoever, save for that enunciated in section 8 CLA. And this in turn was due to the absence of an express provision in the FC allowing the bringing of an action to redress such a wrong. 15

(ix) The net effect of the majority decision is that there is no redress to a person whose constitutional rights have been transgressed, despite a constitutional guarantee to that effect in Art 5(1) FC. The Minority or Dissenting Judgement of Zainun Ali FCJ in Nurasmira [22] Zainun Ali FCJ delivered the sole dissenting judgement in relation to Kugan’s appeal, allowing exemplary damages for the breach of a constitutional right. In an illuminating judgement, Her Ladyship held, inter alia, as follows:

Kugan’s death amounted to a contravention of his right to life as guaranteed in Art 5(1) FC;

The doctrine of ubi just, ibi remedium (there is no wrong without a remedy) holds. Therefore, such a breach of a constitutional right should result in an appropriate constitutional remedy which would be separate and distinct from remedies under statute, common law and equity; 16

Section 8(2) CLA has no application at all to cases involving custodial deaths as the CLA deals primarily with private tort actions and deaths which are “accidents”, not custodial deaths which encompass a public law element;

The CLA was in force prior to the FC and cannot be utilized to construe or limit fundamental rights in the FC. It is not applicable to constitutional torts - which is what custodial death cases amount to;

It might be argued that the provisions of para 1 of the Schedule of the Courts of Judicature Act 1964 can be utilized (see R Rama Chandran v industrial Court of Malaysia & Anor [1996] 1 MELR 71; [1996] 1 MLRA 725 per Edgar Joseph Sr FCJ; and Nilabati Behera v State of Orissa [1993] SCC (2) 746)

Where a wrong is committed by the State or an instrument of the State which has the effect of depriving the victim of his life in a manner not in 17 accordance with law, the victim is entitled to an award of exemplary or aggravated damages. Section 8(2) CLA which contains a bar is inapplicable in Kugan’s case which relates to a custodial death arising by reason of the breach of a constitutional right. [23] The dissenting judgment therefore afforded the claimants redress for the considerable loss suffered by the victims as a result of the State failing to protect the most fundamental of rights guaranteed to a citizen of this country, literally the right to live, as a consequence of wrongs perpetrated by the police, for whose actions the State is liable. The Submissions by the Parties before this Court Appellant’s Submissions [24] The Appellants’ submissions may be summarized as follows:

They relied primarily on the binding authority of the majority decision in Nurasmira to maintain that the 18 Court of Appeal had erred in awarding exemplary damages to Chandran’s estate;

The clear statutory construction to be awarded to section 8(2) CLA was that exemplary damages could not be awarded as that category of damages was expressly excluded. The legal reasoning by the majority in Nurasmira (as set out above) were repeated and relied upon;

Reference was made to the appropriate mode of statutory construction to be adopted, relying inter alia on Tan Kim Chuan & Anor v Chandu Nair Krishna Nair [1991] 1 CLJ (rep) 441; Chin Choy v Collector of Stamp Duties [1979] 1 MLJ 69 and Vengadasalam v Khor Soon Weng & Ors [1985] 2 MLJ 449. The thrust of the submission was that where the words in a statute are plain and unambiguous it is not the function of the court to add words or depart from the clear meaning accorded by the Legislature; 19

The judicial powers of the High Court are provided in Art 121 FC and PP v Kok Wah Kuan was relied on to comprehend the specific jurisdiction and powers of the High Court; Pursuant to sections 23 and 25 CJA the only jurisdiction and powers that could be exercised by the Court is under sections 7 and 8 CLA. Therefore, damages could only be awarded within the four corners of the CJA;

Exemplary damages ought not to have been awarded because the factual matrix of Chandran’s case did not warrant or justify the grant of punitive damages, unlike Kugan’s case, where there was actual violence inflicted on the deceased. Here, it was contended, the facts disclosed only negligence. That was not sufficiently outrageous to warrant the grant of exemplary damages;

The High Court had granted exemplary damages following Kugan’s case in the Court of Appeal, where it was held that exemplary damages could be granted for the breach of a constitutional right. The decision 20 of this Court in Nurasmira (which encompassed Kugan’s appeal as well) had not been handed down, and accordingly the High Court decision was wrong. The Respondent’s Submissions [25] The Respondents submitted that:

The jurisprudence for the award of exemplary damages was examined in the decisions of the Court of Appeal in Kugan’s case, Nurasmira Maula bt Abdul Jaffar & Ors v Ketua Polis Negara & ors [2015] 3 MLJ 105, Ketua Setiausaha Kementerian Dalam Negeri & Yang Lain v Ghaur Chandran Murugesu & Satu Lagi [2016] 3 CLJ 210 and Zulkiply Taib & Anor v Prabakar Bala Krishna & Ors and Other Appeals [2015] CLJ 176. It was submitted in essence that Chandran’s estate was entitled to claim exemplary damages as a consequence of the acts of the Appellants who had deprived him of medical treatment deliberately and as such were guilty of “oppressive, arbitrary and unconstitutional conduct”; 21

The High Court had not committed any appealable error in that the learned Judge had examined the totality of the applicable case law then available and had proffered his reasons for preferring the jurisprudence laid down in Kugan’s case. At the time in the Court of Appeal, in both Kugan’s case and Nurasmira’s case had determined that exemplary damages could be awarded with respect a breach of constitutional rights and public misfeasance;

The Court of Appeal case of Ghaur Chandran which was decided in 2016 was per incuriam because both Kugan’s case and Nurasmira Maulat’s case (at the Court of Appeal level) had not been considered. A breach of the deceased’s constitutional rights did not appear to have been taken up;

If section 8(2) CLA is read to prohibit exemplary damages for breaches of constitutional rights and public misfeasance causing death, then one is faced with a bizarre situation. This is because when death 22 ensues the wrongdoer “escapes” liability for exemplary damages while an injury would allow for such liability to be imposed. The message the law would appear to be sending out is that it is better to kill than to just injure. That in itself goes directly against the rationale for the grant of exemplary damages;

In Nurasmira Maulat the Court of Appeal referred to the position in India in for example DK Basu v State of West Bengal (1997) 1 SCC 416 and a series of other cases, including Nilabati Behera v State of Orissa and Ors AIR 1993 SC 1960 where it was held that when the right to life under art 21 of the Indian Constitution (which is equivalent of our Art 5(1) FC) was infringed, the courts had the jurisdiction, and were bound to, offer redress in the form of declarations as well as monetary compensation. As such the jurisprudence relating to the grant of exemplary damages for the breach of the constitutional right to life had been laid down; 23

Reference was made to the decision of this Court in Hassan Marsom & Ors v Mohd Hady Ya’akop (2018) MLRAU 213 where exemplary damages were awarded to register the court’s disdain of law enforcement officers disregarding the rules and procedures that determine the parameters of their duties and responsibilities which and resulted in a serious violation of an individual’s dignity and deprivation of his constitutionally guaranteed freedom. This Court approved the guidelines for the grant of exemplary damages as stipulated by James Foong J (as he then was) in Roshairee Abd Wahab v Mejar Mustafa Omar & Ors [1996] 1 MLRH 548: “While considering the request for exemplary damages, this Court must bear in mind that the objective for an award under this category is to punish the defendants and to display the Court’s indignant attitude towards the acts committed by the defendants…..” . Relying on Rookes v Barnard [1946] AC 1129 it was held that damages were restricted to situations where there are “…oppressive, 24 arbitrary or unconstitutional acts by the servants of the Government” ….” My Analysis of The Appeal before this Court Section 8(2) CLA [26] The Appellants before us seek an answer in the affirmative to the question of law posed, particularly on the basis of the majority judgment in Nurasmira. In other words, the Appellants maintain that section 8(2) CLA amounts to an absolute bar against the grant of exemplary damages in a case such as the present, which deals with a custodial death. [27] It is true to state in relation to section 8(2) CLA that the provisions are clear that exemplary damages are barred and cannot be granted under the CLA. In this context it is important to appreciate that a claim made under section 7 and 8 CLA is a private law action in tort brought against persons who have caused the death of the deceased due to a wrongful act or by neglect or by accident. [28] It is not tenable to construe section 8(2) CLA otherwise than as it expressly stipulates, as the language is clear and 25 incapable of a construction other than that which it states. And that is that exemplary damages are not available to the inheritors of the estate of the deceased, notwithstanding that the acts or omissions giving rise to the death of the person were deliberate, vicious and irreversible. However, the answer does not end there. [29] The conclusion that exemplary damages are not available under section 8(2) CLA is not a complete answer because it relates to a question of law framed solely under the CLA. Such an answer would be inchoate without an examination of whether Chandran’s executors are entitled to bring an action in public law for the contravention of his right to life under Art 5(1) FC. [30] This is so because of the express finding of the High Court that this constitutional right had been infringed. And that finding was both valid and sound in view of the fact that there is an express pleading in the alternative to the effect that Chandran’s constitutional right to life was infringed. Accordingly, a remedy was sought. 26 Does the Construction Afforded to section 8(2) CLA preclude a claim for redress for, inter alia exemplary damages for the Infringement of Art 5(1) FC? [31] In Nurasmira the majority of this Court held that there was no other redress for a citizen, such as Kugan, whose constitutional rights had been infringed. The reasoning has been set out above. [32] I am, with the greatest of respect, unable to concur with the legal reasoning adopted there. It is with considerable regret that I register my dissent as a departure from the majority decision of this Court is not lightly nor easily made. I only do so after deep deliberation because the subject matter of consideration is of the utmost gravity, relating to the constitutionally guaranteed fundamental right to life. To a considerable extent I do concur with the coherently reasoned dissent in Nurasmira. However, I depart from the dissent in one area, which to my mind is material. The Issue for Consideration: Can the Administrators bring an action for a breach of Chandran’s constitutional right to life under Art 5(1) FC? 27 [33] I am of the view that the contravention of a constitutional right as embodied in Art 5 FC, resulting in the loss of life, confers a public law right or cause of action available to the executors of the deceased or the inheritors of the deceased’s estate, against the perpetrators of the wrongful acts or omission. Put another way, the fact that Chandran a/l Perumal’s life was taken otherwise than in accordance with law as prescribed in Art 5 FC, affords his estate a public law cause of action for the breach of his constitutional right to life. [34] This was not fully articulated in the dissenting judgement in Nurasmira. The entitlement to exemplary damages for the contravention of a constitutional right was sought to be brought under section 8 of the Civil Law Act. To my mind, such a claim cannot be brought under the Civil Law Act, but redress can be obtained in public law for the contravention of Art 5(1) FC. To that extent only, I take a different stance from the dissenting judgement in Nurasmira. [35] In the instant case, the learned Judge in the High Court found that the Appellants had perpetrated a wrong which amounted to a contravention of Art 5(1), in that the deceased’s 28 right to life was taken away otherwise than in accordance with the law. In these circumstances, it appears to me that the pivotal issue in the instant case is to ascertain whether the only right or remedy available to the executors of Chandran’s estate and his inheritors is the private law remedy in tort, or whether the inheritors are also entitled to a right of action for the infringement of a fundamental right, namely Art 5(1) FC, as well as the commensurate remedy for such infringement. [36] It is also important to determine whether the right to pursue a remedy for the constitutional infringement of a fundamental right is without prejudice to any other action available in respect of the same matter, which may be lawfully available. [37] In other words, can the inheritors bring an action both in private law under sections 7 and 8 CLA as well as for a breach of a constitutional right under the FC? In the latter case, where does the remedy lie? [38] It is necessary in this context to draw a distinction between: 29

A claim in private law and the attendant remedies available, under sections 7 and 8 of Part III of the

(ii) A claim in public law for a remedy for the contravention of a fundamental liberty namely Art 5(1) which is guaranteed under the FC. [39] It is certainly clear that there is a distinction between the liability of the State which arises in respect of the breach of a fundamental right under the FC, occasioned by its agents or servants on the one hand, and the liability in private law in tort which provides for the payment of compensation as statutorily provided for in sections 7 and 8 CLA. [40] Therefore, when reliance is placed on Sambu Pernas, as was done by the majority decision of this Court in Nurasmira, it is indeed good authority for the proposition that no claims can be brought by a deceased person save as provided for in Part III of the CLA in sections 7 and 8. However the claims there refer to civil claims brought within the private law sphere of tort 30 law. Sambu Pernas does not touch on a cause of action premised on the infringement of a fundamental right under the Federal Constitution. [41] The further point that warrants consideration is that sections 7 and 8 CLA, are statutory provisions mirroring the developments under the common law, much like the position in the United Kingdom. As outlined in detail in Nurasmira, it was only with the introduction of statutory law, that the common law position that all causes of action cease or die with the deceased, could be alleviated. This has considerable benefit for the purposes of enabling the estate or inheritors of the deceased person to bring an action in tort, in private law. [42] However, these statutory provisions do not deal with claims for constitutional infringements. The CLA is primarily for the purposes of procuring a private law remedy in tort. The reliefs afforded are primarily compensatory in nature. The award of exemplary or punitive damages is not envisaged. The fact that servants of the State and thereby the State, are held liable, and are required to pay compensation in accordance with 31 the CLA, in no way detracts from the fact that such claims are brought in tort and NOT for constitutional infringements. The Differences between the United Kingdom and Malaysia in the context of the issues raised by this Appeal [43] In the United Kingdom, there is no written constitution, and they are governed by the doctrine of Parliamentary sovereignty, unlike us. We have a written constitution and are governed by the doctrine of Constitutional supremacy. Part II of the FC sets out the fundamental rights available to every citizen in the land. When such rights are breached, it follows that the citizen is entitled to redress for such infringement. [44] This is not to say that there is no such redress for persons in the United Kingdom. As is clear from Ashley, Lord Scott of Foscote made the clear distinction between compensatory damages for death as a consequence of accident, wrongful act or neglect, on the one hand, and vindicatory damages where there has been aggravated misconduct and misbehaviour by the State through its servants or agents, for example the police. [45] Relying on the Privy Council decisions in Ramanoop and Merson, he explained the fundamental distinction between 32 compensatory damages which serve purely to compensate for the loss suffered, and other types of damages such as exemplary damages, which serve to punish for arbitrary, oppressive or unconstitutional conduct (see Rookes v Barnard [1946] AC1129) and vindicatory damages, which enable the person wronged to be vindicated and allowed to continue with his life without fear or pressure. The Decision of the Court of Appeal in Kugan’s Case [46] It was, to my mind, in this context, that the Court of Appeal, speaking through David Wong FCJ (later CJSS) in Kugan’s case, relied on Ashley to contend that there was a distinction between the damages available in tort on the one hand, and exemplary damages available for the infringement of a constitutional right, on the other. [47] But, this Court took the view that the Court of Appeal had misconstrued Ashley because Lord Scott of Foscote spoke of vindicatory and not exemplary damages. [48] However, the underlying principle in Ashley is that there is a distinction between damages which are purely 33 compensatory and awarded for the loss suffered by reason of tortious conduct, as compared to exemplary or vindicatory damages which serve a purpose other than pure compensation for loss suffered by reason of the tortious conduct. This latter category of damages either punishes or vindicates the victim or his inheritors by reason of the misbehaviour or aggression, violence or gross neglect of the aggressor. [49] Vindicatory damages were indeed contemplated in Ashley as an appropriate form of damages to be awarded where there is a violation of the aggrieved person’s fundamental or constitutional rights. [50] It was in this context that the Court of Appeal sought to draw a parallel between Kugan’s case, where exemplary damages were sought for a breach of his constitutional right of life, and Ashley where Lord Scott recognized that damages were available for conduct that was wrongful, either oppressive or unconstitutional warranting exemplary damages or conduct that amounted to misbehaviour or gross neglect which warranted the grant of vindicatory damages. It was this recognition of a right to punitive or vindicatory damages as opposed to purely compensatory damages that is the true 34 principle to be drawn from Lord Scott’s speech, in my respectful view. [51] I am of the further view therefore that the Court of Appeal in Kugan’s case, did not utilize Ashley as authority for the proposition that exemplary damages are available for the breach of a constitutional right per se. Instead it was used to differentiate between the basis for the claims of damages, whereby sections 7 and 8 CLA provided the basis for a claim for damages which are purely compensatory in nature, while the infringement of Kugan’s right to life under Art 5(1) FC gave rise to the basis for a claim for a different form of damages, namely punitive damages in the form of exemplary damages. [52] To my mind therefore, the Court of Appeal ought not to be faulted for relying on Ashley to draw that distinction. The fact that the type of damages awarded were vindicatory damages, rather than exemplary damages, does not detract from the principle. The Distinct Causes of Action in Chandran’s Claim requiring Different Redress 35 [53] Returning to the appeal at hand, it is evident from a perusal of the Statement of Claim that it is premised on sections 7 and 8 CLA followed by a claim in the alternative or cumulatively for redress for the infringement of a constitutional right. It is true that it only comprises one paragraph, but the legal basis for such claim is premised on the factual matrix as pleaded in full in the preceding paragraphs of the claim. [54] In other words, there is a claim under both the CLA as well as a plea of a breach of a constitutional right. These are two separate and distinct claims. [55] I am of the view that in as much as there is a distinction between the basis for the claims made by Chandran’s executors, one being in public law for the breach of a fundamental right under the FC, and the other in private law in tort under sections 7 and 8 of the CLA, the redress or remedies too are distinct and separate, and are awarded on different bases to serve different purposes. [56] We are well acquainted with the private law remedy under the CLA, which is entirely compensatory in nature, and accordingly bars all forms of damages which are punitive or 36 vindicatory. The latter two categories of damages, namely exemplary and vindicatory damages are non-compensatory. Therefore, the basis for a claim under the relevant sections of the CLA are purely as specified there and are compensatory in nature. There is no provision for punitive, aggravated or vindicatory damages. [57] The claim for the breach of a fundamental right under the FC seeks a remedy which is different from that under the strictly circumscribed, private law remedies in tort as established in sections 7 and 8 CLA. [58] The right to life in Article 5(1) FC is a fundamental right. When such a legal right is created and guaranteed by the Federal Constitution, it is a right which is secured by the supreme law of the land, the Federal Constitution. Accordingly breaching that fundamental right gives rise to a cause of action against the party occasioning such loss or injury. [59] The fact that there subsists a basis or cause of action for the breach of a constitutional right appears to be implicitly accepted by the majority decision in Nurasmira. The thrust of the decision in that case was that while there had been an 37 infringement of the constitutional right to life under Art 5(1) FC, there was no remedy available for such infringement. [60] It is important to bear in mind that in the instant case there comprised both a plea of an infringement of a constitutional right, and an express finding by the trial judge that an infringement of Chandran’s constitutional right to life under Art 5(1) had been infringed. As such, the existence of such a basis for a claim for redress was not doubted. [61] For clarity, the elements of a claim for a breach of a constitutional right require the following elements:

The assertion or plea that the plaintiff suffered an infringement of a constitutional right; preferably, the specific constitutional right should be identified;

The person or persons who deprived the plaintiff of such right were acting under or for the State; 38

As a consequence of such acts or omissions the plaintiff suffered or lost the right constitutionally guaranteed. Is there Redress for the Infringement of a Constitutional right under Art 5(1) FC? [62] The next question or issue that arises for consideration is whether there is in fact provision for such redress, given that there is no express provision for remedies or redress in the Federal Constitution itself, unlike the Constitutions of India, Trinidad & Tobago and the Bahamas. The majority in Nurasmira held that there was simply no other recourse for the infringement of a fundamental right, save for the private law remedy circumscribed in sections 7 and 8 CLA. [63] Are the courts in Malaysia helpless to grant relief in a case of an infringement of the right to life, resulting in the death of a person? That too, when there is at all times an obligation on the part of the State to ensure that there is no infringement of the inalienable right of a person to life in accordance with law, particularly when he is in the custody of the State. The Appellants as policemen, were under a duty to safeguard the 39 life of the deceased, at the very least, whilst under their protection and care. [64] It appears to me to be untenable to tell the inheritors of a victim of custodial death that their sole recourse in respect of the victim’s death, is that of the ordinary remedy of a civil suit under sections 7 and 8 CLA, with no recourse whatsoever to any other relief in respect of the violation of the victim’s constitutionally guaranteed right to life under Art 5(1) FC. [65] With respect, the decision in Nurasmira, which precludes redress for the infringement of a fundamental right, effectively reduces the right to life enshrined in Art 5(1) FC, to a mere illusion. [66] It amounts to stating that the inheritors of Chandran’s estate cannot get any relief against the State under public law in respect of the violation of the right to life. When extrapolated, it means that the courts have no jurisdiction to provide redress and are powerless to do anything but wring their hands in despair when there is deliberate, wrongful and repetitive infringement of the most fundamental right of the citizenry, 40 namely the right to life, by instruments or representatives of the State, for whom the State is vicariously liable. [67] The need for the guarantee of a right of redress for the violation of a substantive fundamental right like the right to life cannot be denied. Even in the United Kingdom where there is no written Constitution, Dicey demonstrated that abstract declarations of the rights of man are of little value unless there are definite means for the enforcement of such rights when they are violated by the State or its officials. In Dicey’s celebrated words: “..The Habeas Corpus Acts declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty”(see Dicey: 10th Edition., p. 197ff – see Constitutional Remedies And Writs Volume 1, Fourth Edition by Durga Das Basu).