KOTA KINABALU: Three former students won an unprecedented suit against their English language teacher for failing to show up for class for seven months in 2017.
High Court judge Leonard David Shim made the decision in favour of the three former students of SMK Taun Gusi, Kota Belud — Rusiah Sabdarin, Nur Natasha Allisya Hamali and Calvina Angayung, all 22.
The three students brought their former teacher and four others to court for violating their constitutional rights to access education when they were in Form Four Sports Science (4SS) at the school six years ago.
They filed the suit on Dec 7, 2020 and named their English teacher, Mohd Jainal Jamran, as the first defendant.
They also named the then school principal Suid Hanapi as the second defendant, the Education Ministry director-general as the third defendant, the education minister as the fourth defendant and the government as the fifth defendant.
In his 74 pages of broad grounds of decision, the judge, among others, held that, from the totality of the evidence before the court and after considering the submissions by both parties, the court found that the plaintiffs have proven their case on a balance of probabilities.
The judge also ruled that the plaintiffs' claims were allowed, and there shall be judgment for the plaintiffs against the defendants as follows:
(i) A declaration that the first, second, third, fourth and fifth defendants were in breach of their statutory duty under the Education Act 1996 by failing to prepare the three plaintiffs for examinations as prescribed under the Education Act 1996;
(ii) A declaration that the second defendant was in breach of his duties under Regulation 3C, 25, 26 Public Officers (Conduct and Discipline) Regulations 1993;
(iii) A declaration that the five defendants had violated the three plaintiffs' constitutional right to access to education guaranteed to the plaintiffs under Article 5 read together with Article 12 of the Federal Constitution;
(iv) Nominal damages in the sum of RM30,000 to be paid to each of the plaintiffs by the first to fifth defendants jointly and severally;
(v) Aggravated damages in the sum of RM20,000 to be paid to each of the plaintiffs by the first to fifth defendants jointly and severally; and,
(vi) Interest on (iv) and (v) at the rate of five per cent per annum from the date of judgment until the date of full and final settlement.
The court added that as this case involved the question of the fundamental constitutional right to education and matters of public interest, the court made no order as to legal costs.
In the landmark decision, the court, among others, ruled that all the defendants had violated the plaintiff's constitutional rights under Article 5 read together with Article 12 of the Federal Constitution.
"Based on the principles enunciated by the Federal Court in the aforesaid authorities and construing Article 5(1) read together with Article 12, both articles of the Federal Constitution, as broadly as possible, the court finds that the right to be provided with a teacher who attends classes to teach and to prepare the plaintiffs for the English language examination is an integral part of the plaintiffs' constitutional right to education, and the said constitutional rights have been breached by the defendants," said the judge, adding that all five defendants did not take any reasonable steps to safeguard the rights of the plaintiffs.
The court further ruled that it was the plaintiffs' case that the first defendant was frequently absent between March and July 2017 and wholly absent for the months of August and October 2017. The evidence shows that the dates of the first defendant's absences match the state Education Department (JPNS) record.
"There is no evidence to show that the first defendant was on leave or involved in other school activities during the long period of his absence. In his evidence in chief, the first defendant testified that he was present during the school schedule for 2017 unless he was involved in other school activities.
"However, under cross-examination, the first defendant agreed that he was absent during the days and months recorded in JPNS record. The court has observed the first defendant's demeanour when giving evidence during the trial and does not find him to be a credible witness," said the judge.
The court also ruled that despite knowing about the first defendant's absenteeism since May 2017, the second defendant failed to take any reasonable steps to exercise disciplinary control and supervision over the first defendant.
"The evidence of the second defendant that he was only informed about the first defendant's absenteeism in November 2017 is not credible, and the court finds the second defendant to be an unreliable witness."
Furthermore, the court said it was undisputed that the first and second defendants fall under the purview of the third and fourth defendants, and the first and fourth defendants are employees, servants, or agents of the fifth defendant.
"As the court has found that the first and second defendants are liable for negligence and breach of statutory duty, the third to fifth defendants are vicariously liable for the acts and omissions of the first and second defendants," the judge ruled.
However, the plaintiffs' claim for misfeasance in public office has not been established on a balance of probabilities.
"From the evidence adduced by the parties, the court does not find any evidence of targeted malice with the requisite intention by the defendants to injure the plaintiffs. There is evidence of negligence and a breach of statutory duty by the defendants.
"However, the evidence does not suggest an intention of harming the plaintiffs or reckless indifference to the probability of harming the plaintiffs or the students of Class 4SS. In the premises, the court finds that the claim for misfeasance in public office has not been established on a balance of probabilities.
"In the suit, they, among others, sought a declaration that the defendants were in breach of their statutory duty under the Education Act by failing to ensure that the plaintiffs were taught the English language during the material time for the year 2017 and by failing to prepare the plaintiffs for examinations as prescribed under the Act.
They also sought a declaration that the acts of the defendants amounted to misfeasance in public office.
They also sought a declaration that the defendants violated the plaintiffs' constitutional rights to access education guaranteed to them under Article 5 read together with Article 12 of the Federal Constitution.
The plaintiffs had called 10 witnesses, but only three testified for the defendants during the hearing, which commenced on Sept 5, 2022 and was completed in January this year.
The trio was represented by counsel Sherzali Herza Asli.
Senior federal counsel Mohd Hafizi Abd Halim and federal counsel Fazrul Fardiansyah Abdul Kadir acted for the defendants.