High Court Summons

7 December 2020

High Court Summons

7 December 2020

Plaintiffs (Ps) were SMK Taun Gusi Form 4 students in class Sains Sukan (4 SS) in 2017. 1st Defendant English teacher Jainal Jamran (D1) was assigned to teach 4SS English that year. D1 was under the supervision of 2nd Defendant school principal Suid Hanapi (D2).

Both D1 and D2 are supervised by the Director General of the Education Ministry (D3), the Minister of Education (D4) and Federal Government (D5). Because these superior Defendants were aware of D1's and D2's breaches, D3, D4, and D5 are vicariously liable, as well.

Who?

The Ps stated that at SMK Taun Gusi in 2017:

1. D1 did not enter the 4 SS class for English:
   1. Frequently absent March to July 2017 and was
   2. Wholly absent August to October 2017.
2. D1 did not make up his absences.
3. D2 did not give any guru ganti.
4. The 4SS class, including the Ps, never received the Form 4 English curriculum.
5. Even though they were aware, D2 did not act against D1; further D3, D4, D5 did not act against D1 nor D2.

What?

1. Public Officers (Conduct and Discipline) Regulations (POCDR) 1993
2. Education Act 1996
3. Federal Constitution
4. JPA / MOE Panduan Mengurus Pegawai Tidak Hadir Bertugas

Which laws were claimed to be broken?

The Plaintiffs (Ps) asked the High Court for five remedies: first, four declarations:

1. That D1, D2, D3, D4, and D5 violated the Education Act because 1) they failed to ensure the Ps were taught English and 2) they failed to prepare the Ps for exams.
2. That D2 violated the Public Officers (Conduct and Discipline) Regulations for failing to act against D1.
3. That D1 & D2 committed misfeasance in public office.
4. That That D1, D2, D3, D4, and D5 violated the Ps' Federal Constitutional rights under Art. 5 & Art. 12.

The Ps also asked for a 5th non-declarative remedy: exemplary, general, and aggravated damages (money).

Remedies

Declarations are Court remedies that recognize rights, e.g., "This party had right A under law B and the other party violated that right with their actions XYZ."

Declarations cannot force any party to act, so they are often preventive: "If the Government's acts XYZ violate someone's legal rights, then the Government will break the law if they continue XYZ in the future."

Here, the Court was asked: is unmitigated extreme teacher absenteeism simply internal MOE misconduct, or is it also a violation of legal & Constitutional rights of students?

More, more, and more reading.

What are declarations?

The Plaintiffs' Remedies

7 December 2020

High Court Summons

7 December 2020

D1

D2

D3

D4

D5

P1

P2

P3

Honourable High Court Judge

Justice Leonard David Shim

• Bachelor of Laws (LL.B) (Hons) - University of London (1986 - 1989)
• Called to the Bar of England and Wales at Middle Temple (1991)
• Admitted as an advocate and solicitor - High Court of Borneo (1992)
• President - Advocates Association of Sarawak (2014 - 2016)
• Chief Judge - High Court of Kota Kinabalu (2019 - 2022)
• Judge - High Court of Kota Kinabalu (2022 - 2023)
• Judge - High Court of Kuching, Sarawak (2023 - present)

The Plaintiffs' Announcement

22 December 2020

"This culture continues headstrong, with little consequences from the nation’s principals and the Ministry of Education. ... Why would a principal protect a teacher who refused to teach?"

— NUR NATASHA, 2nd Plaintiff

"What my class experienced is gut-wrenchingly heartbreaking for both of my parents: their sacrifices of energy, money, and time were wasted by the teacher who left us for months without a teacher in the classroom."

— CALVINA, 3rd Plaintiff

"We hope that for other students who are experiencing similar cases: stand up. Dare yourself to fight for our educational rights. Do not let their terrorizing tactics overwhelm you. Together, we will uphold education for future generations."

— RUSIAH, 1st Plaintiff

CALVINA was the Head School Prefect at SMK Taun Gusi.

RUSIAH was the 4 SS Class Monitor at SMK Taun Gusi.

NUR NATASHA was a School Prefect at SMK Taun Gusi.

After officially accepting a Summons, Defendants have 14 days to file a Defence under the Rules of Court 2012 (O. 18 r. 2). But in this case, the AGC-MOE failed to file a Defence for 170+ days, requesting extension after extension until 22 June 2021.

What happened

Disturbing AGC-MOE Delays

22 June 2021

This AGC-MOE Defence delay alone consumed 18% of the total litigation time.

The then-Minister of Education Radzi Jidin claimed to media re: the period spot check scandal: "If you can tell me sekolah mana, then I'll go drill down and tengok apa berlaku." The Plaintiffs' school was mentioned ten (10x) times in the first two pages of their High Court summons.

Why it matters

"

"

It is a mind-boggling and historical embarrassment when the Government and its public service still has not filed a Defence against sworn claims made by High Court Plaintiffs Rusiah binti Sabdarin, Nur Natasha Allisya binti Hamali, and Calvina binti Angayung (all 19 years old): a months-absent teacher & misfeasance in public office by Ministry of Education (MOE) officers.

Ignorance of the law is no defence. This egregious period without a Defence has invited significant mistrust, suspicion, and disrepute. To these brave Sabahan whistleblowers, and the thousands of others who spoke up against the Ministry of Education’s claimed abuses of power: consider the Defendants’ 155-day inability to file a Defence in Court over an 11-page Statement of Claim as your first win.

No more silence. No more fear. It is time for the corrupt and powerful to take their knees off the necks of Malaysia’s children.

Campaign Statement

22 June 2021

Who would be afraid of young women students blowing the whistle?

Afraid of the High Court of Sabah & Sarawak?

Of a public High Court trial?

Of subpoenas?

Of evidence discovery?

Of transparency?

Of reality?

Demands: The Ministry of Education must promptly delegate an external, independent investigation—sine qua non for the truth—against all recently claimed abuse, negligence, and corruption against it. Likewise, the Minister of Education must submit any Defence to Court.

• Rusiah Sabdarin, 21, a former secondary student of SMK Taun Gusi, Kota Belud, said a day after she filed the suit, her father was called by the new principal Nuzie Balus. She was at her uncle’s place in Kinarut then.
• She said in the witness statement that she did not know about the matter until her father came to Kinarut and asked her to withdraw the suit. She told her father she would not, which later caused her brother to almost hit her with a wood. According to Rusiah, after returning to Kota Belud, the relationship between her, her brother and father became a bit cold, but has improved.
• She further said Nuzie also called her to his office and threatened that he has power to take disciplinary action against her and to bring up her school absences that happened years ago.
• Rusiah also testified that Nuzie inquired whether her house had CCTV which she felt was a threat. She also felt that all the questions by Nuzie at the meeting threatened her and her family’s safety. During the meeting, Rusiah said Nuzie asked if her father knew the real intention she filed the case and suspected that the principal was trying to put pressure on her father.
• She said Nuzie warned her to think carefully about her future and for her family. After the meeting, Rusiah was very worried about the unusual actions of the officers of the defendants and caused her to ask her lawyers at the time to apply from the court to stop such behaviour. Her lawyers duly filed for an injunction against the defendants and their officers not to harass Rusiah, her family and other plaintiffs.

Plaintiff Rusiah exposed it all

Historic Injunction vs MOE

22 January 2021 → 30 August 2021

Mohd. Jainal Jamran

SMK Taun Gusi teacher

Hj. Suid Hanapi

SMK Taun Gusi principal

Minister of Education

YBM Radzi Jidin

YBM Fadhlina Sidek

Director General of Education

Nor Zamani Abdol Hamid

Pkharuddin Ghazali

1.  Plaintiffs' Claims

2. Plaintiffs' Trial Evidence Summary

3. Plaintiffs Call 10 Witnesses

4. Plaintiff Witness Testimony

5. Plaintiffs' Secret Recordings

6. Dr Noor Aishah Rosli: expert

7. Cikgu Nurhaizah ➡️

Table of Contents

Plaintiffs' Trial Evidence Summary

1. A pen drive, containing an audio recording of the Hj. Nuzie Balus, the principal of SMK Taun Gusi, when he met Plaintiff Rusiah.
2. WhatsApp screenshots from SMK Taun Gusi teachers to the Plaintiffs & other students.

Injunction Evidence

1. Analysis of the 2017 1st semester 4SS buku kawalan, by the Plaintiffs. 
2. A pen drive, containing 11x 2017-era audio-video recordings of D2 Principal Suid Hanapi, PK1 Johari Hajat, Ketua Bidang Bahasa Norhana Idek, Ketua Panitia Bahasa Inggeris Awang Erawan, and students captured by the Plaintiffs.
3. SMK Taun Gusi's disciplinary records of the Plaintiffs.
4. The buku latihan of multiple 4 SS students.

School Evidence

1. Expert child psychologist report, with attachments, on the three Plaintiffs by PW9 Dr Noor Aishah Rosli.
2. 80x time-stamped video recordings of the 4 SS classroom during D1's English period; by PW10 Cikgu Nurhaizah Ejab.
3. An audio recording of SMK Taun Gusi Teacher Eddy discussing D1 and D2; by PW10 Cikgu Nurhaizah.

Subpoena Witness Evidence

Plaintiffs Call 10 Witnesses

PW = Plaintiff Witness; ex-4 SS student

1. PW1 Nurul Afirah Zainal Abidin;
2. PW2 Suriana Md Salleh;
3. PW3 Rusiah Sabdarin (P1);
4. PW4 Mohd Fadzley Izzani Lamsin;
5. PW5 Calvina Angayung (P3);
6. PW6 Nur Natasha Allisya Hamali (P2);
7. PW7 Abdul Shahril Abdul Sahar;
8. PW8 Mohd Hafiezzamani;
9. PW9 Dr Noor Aishah Rosli (expert witness & child psychologist); &
10. PW10 Nurhaizah Ejab (5 SS English teacher).

Sans the Plaintiffs (PW3, PW5, PW6) and Dr Noor Aishah (PW10), all Plaintiffs' witnesses testified under Court Subpoena.  While many ex-4SS students were called by the Plaintiffs, one named Norhayati was not as she is a stateless person. The High Court accepted this rationale.

Where was D1? Why didn't he enter?

Plaintiffs' Witness Testimony

Where was D1? Why didn't he enter?

Which teachers did Ps tell about D1’s absences? What was their teachers' response?

Which teachers did Ps tell about D1’s absences? What was their response?

What was D1's attitude to his classes?

What was the impact of D1’s absences?

What was the impact of D1’s absences?

What was the impact of D1’s absences?

What motivated the Plaintiffs to sue?

What are the Plaintiffs' hopes after litigation?

11x School Recordings

Plaintiffs' Secret Recordings

The transcripts of ‘recording 1’ to ‘recording 11’ at pp. 131 to 200 of B1 and 201 to 224 of B2 were introduced through the witness statements and testimonies of the plaintiffs’ witnesses. The content of the transcripts and the testimonies introducing the said recordings were not challenged during cross-examination. Put simply, this would mean that the recorded conversations and discussions that had transpired therein are deemed accepted by the defendants.

Recording #2 - Ketua Panitia B. Inggeris Awang Erawan

Recording #5 - KB Bahasa Norhana Idek

Recording #4 - PK1 Johari Hajat

Recording #3 - Pengetua D2 Suid Hanapi

Expert child clinical psychologist report

Dr Noor Aishah Rosli: expert

Whistleblower teacher exposes coverup

Cikgu Nurhaizah: MOE Whistleblower of the Decade

PW10 Cikgu Nurhaizah Ejab  is an active MOE teacher, subpoenaed by the Plaintiffs in 2022. In 2015, she was the Ketua Panitia Bahasa Inggeris at SMK Taun Gusi and a normal English teacher in 2017.

In 2019, one year after the summons, Cikgu Nurhaizah was transferred to SMK Usukan in Kota Belud.

Cikgu Nurhaizah is a former SMK Taun Gusi student and is a native of Kota Belud, Sabah. 

1.  Whistleblower teacher exposes coverup

2. D1, and others, were absent for years

3. D2 rejected her report on D1's absences​

4. Fellow teachers threatened her to stop reporting D1

5. She suffered death threats, humiliation

6. For years, D2 hid D1's misconduct

7. D2 fabricated records to protect school's reputation

8. Cikgu Nurhaizah alone saved critical evidence

9. She gave exam lessons to 4 SS class

10. She knew 2nd whistleblower Mr Ibrahim

11. She confirmed D1's leaked Qs as real

Table of Contents

Cikgu Nurhaizah: Part One

D1, and others, were absent for years

• “I knew the principal [D2] or teachers would do nothing about it. I was the Head of English panel when the issue of the teacher’s absenteeism in 2015 was discovered for a number of classes in SMK Taun Gusi. “In this regard, Siti Nafirah (another student) from class 4PD had commenced action against the same teacher which was JJ.
• The witness testified that the copies of the attendance were from official documents kept by the school in record books used to monitor absent cases of students. “To my knowledge, these books were rarely being checked from my observation up to 2015."
• “I made copies of all the classes’ record books and that was how I found out there are similar cases. Every teacher was supposed to sign their attendance and for the said class’ record book, it was unsigned and no record made by the teacher,” she said.

D2 rejected her report on D1's absences

• “I made efforts to solve the problem. I talked to the principal and made copies of record book. I showed it to the principal but was rejected and he asked to write a full report. When I made the full report, he rejected it again saying it was a bad quality report if used as evidence. 

Teachers threatened Cikgu Nurhaizah to not report D1's absences to the district

• “I was also intimidated by my Ketua Bidang Bahasa, one Cikgu Norhana, and another male English teacher named Cikgu Awang, saying that if I alerted the District Education Office, I would lose the entire school support,” she said.

Teachers threatened Cikgu Nurhaizah to not report D1's absences to the district

Cikgu Nurhaizah: Part One

• Nurhaizah Ejab, 37, who was a teacher at SMK Taun Gusi at the time, testified that her colleagues cautioned her against "smearing the school's reputation" by complaining over the absenteeism of English teacher Mohd Jainal Jamran to the Kota Belud district education officer.

She suffered death threats, humiliation; many victims of the MOE's culture of fear

• "I was humiliated, scolded, blamed, scapegoated and threatened two times to death, and my car tyres were slashed a few days right after the death threat," she told judge Leonard David Shim at the Kota Kinabalu High Court on Nov 25. She said her complaints and report also fell on deaf ears in 2015…
• “However, I believe many students were afraid of the potential negative reactions by the school against them. “Indeed, I understand the school administration has the tendency to harass and make threats against students who voice out issues concerning teacher’s absenteeism. “I say so because the plaintiffs obtained an injunction against the defendants to restrain them from harassing and threatening, especially the first plaintiff,” the teacher said.

For years, D2 hid D1's misconduct

• Asked the teacher whether she has any other evidence to prove the JJ’s absenteeism in class, the teacher said she recorded her conversation with one Cikgu Eddy.

For years, D2 hid D1's misconduct

Cikgu Nurhaizah: Part One

• “He [Cikgu Eddy] also confirmed that [D2] Suid was aware of teachers’ absenteeism, particularly JJ but blamed other teachers for not fixing the problem. However, in public, the principal would claim he was not aware of the absenteeism.
• “Eddy explained his unit Sejarah was also suffering from absent teachers.  Once [D2] principal Suid learnt that history teacher was absent, [D2] Suid backed (protected) that teacher instead of acting against that absent teacher.
• [D2] Principal Suid instead put the blame on Cikgu Eddy even humiliating Eddy in the teachers’ WhatsApp group.
• “Eddy also in the recording described that this stressful culture of fear created by [D2] principal Suid has made him lose his interest in the teaching profession & step down from the Ketua Panitia position."

D2 rampantly faked documents to protect his school's reputation

•  “Eddy stated that [D2] Suid fabricated documents on school programmes and Suid had forced teachers to key in fake student’s marks (markah terbang) to make it appear as if teachers had quickly finished their marking.
•  “Eddy claimed these fabrications were rampant but his [D2] goal is to make his school look ‘cantik’ even if there were underlying failures,” she said, when she explained about the audio recording.

Cikgu Nurhaizah: Part Two

• She testified that the [D2] principal would allegedly do nothing in regards to the said problem of teacher for not entering a number of classes in the said school.
• Under examination-in-chief by counsel Sherzali Herza Asli, who represented the three former students namely Rusiah Sabdarin, Nur Natasha Allisya Hamali and Calvina Angayung, the 10th witness explained that she took the initiative to hide a GoPro camera inside a recycled box and placed it inside the form four Sports Science class so that the students would not notice it.
• This included making 80 time-stamped video recordings of the class, at times when [D1] Jainal was supposed to be teaching but was absent, she said. She testified that the first video was recorded on September 25, 2017 on Monday at about 9.45am, five minutes early before an English language class was about to start. The witness explained that the English language class should start at 9.45am but it was seen in the recording that a teacher, whom she referred to as [D1] Mr JJ was not seen entering the class.
• “The second video was taken on the same day but different time which was at 10.45am and still [D1] Mr JJ was not seen in the class.
  “The third video was taken the next day at 7.01am, and still no footage of [D1] Mr JJ entering the class seen,” the witness testified.
• She further explained the fourth video was also taken on the same day as the third video but at different time which was at 8.01am when [D1] Mr JJ’s class had ended and the teacher was still not around.
• To a question, she said she recorded many videos which she has 80 recording files taken inside the said classroom throughout Sept. 2017 and within that period, [D1] Mr JJ never entered the class.

Cikgu Nurhaizah alone saved Kota Belud's children, critical evidence

Cikgu Nurhaizah: Part Two

• To a question, the witness said that she had provided extra classes for the three plaintiffs and their classmates at that time. “I was first approached by Nur Natasya (second plaintiff) as they were feeling the stress of up-and-coming exam as they had no classes anymore. “They could not learn English language and as a result they had chosen to attend my extra classes,” the witness said.

She gave exam lessons to 4 SS class

• When asked about one Mr Ibrahim, the witness explained that Mr Ibrahim is from America and he was the first and only support system for students who experienced the situation of teacher not entering classes. She further said that when there were allegedly no school admins or teachers who stood up for the students, Ibrahim did. “He talked to many teachers at the school, officers at the district education office, education department and ministry to make sure the students received justice. The following year, Mr Ibrahim had sponsored the students a private tuition to make up whatever was missing in 2013, especially when the students were going to sit for the SPM exam,” the witness added.

She knew 2nd whistleblower Mr Ibrahim

• To another question, the witness testified that the third plaintiff, who got the leaked exam questions allegedly from [D1] Mr JJ, came to her immediately and showed the questions to her.
• “I was quite surprised that he allegedly leaked the questions to the students a few days before the English paper exam. I actually made a copy of the leaked questions written by one of the students,” said the witness.

She confirmed D1's leaked Qs as real

1. Defendants' Defence

2. Ds' Trial Evidence Summary

3. Defendants call 3 witnesses

4. D1 Jainal Jamran Testimony Quotes

5. DW3 Norhana Idek Testimony Quotes

6. D2 Suid Hanapi Testimony Quotes

Table of Contents

D1 Jainal Jamran 
Testimony Quotes

D1 forgot if he taught for three full months

July, August, September

Sherzali: The defendants did not tender the Buku Kawalan for the months of July, August and September 2017, correct?
D1 Mohd Jainal: According to the documents, yes.
Sherzali: That would mean that you do not have any evidence to show that you were indeed present during the months of July, August and September 2017 for form four Sports Science’s English language classes, correct?
D1 Mohd Jainal: Correct.
Sherzali: I put it to you, you were therefore, wholly absent during the months July, August and September 2017 for form four Sports Science’s English language classes.
D1 Mohd Jainal: I disagree.
Sherzali: Why did you disagree? You mentioned earlier that you do not have any evidence to prove that you were present during the months July, August and September 2017?
D1 Mohd Jainal: Because I could not remember.
Sherzali: Why do you not remember?
D1 Mohd Jainal: Because it was long time ago.

…

Sherzali: So, you were absent 11 times then for the month of August 2017?
D1 Mohd Jainal: According to the documents, yes.
Sherzali: The State Education Department had also officially confirmed that you were absent 11 times for the month of September 2017 in respect of form four Sports Science’s English language classes, correct?
D1 Mohd Jainal: Yes and there was one time I did not attend school.
Sherzali: So, you were absent 11 times then for the month of September 2017?
D1 Mohd Jainal: According to the documents, yes.

D1 blamed his students for their poor prep

To a question, [D1] Mohd Jainal further claimed that some of the students did not focus, did not pay attention and did not do any preparation in his class. However, Mohd Jainal testified that he still continued to enter the said class to teach the students.

D1 claimed his "leaks" were only spot Qs

[D1] Jainal, however, denied the plaintiff's claim that he had provided them with "leaked exam questions" for the 2017 English final examination. Instead, he said, they were "spot questions".

DW3: "no action can be taken" vs D1

[DW3] Norhana [Idek], who is currently attached to the District Education Department said if the students (plaintiffs) are really serious about their complaint, it should be made earlier. “When complaints are made at the end of the year, no action can be taken."

DW3 knew D1 had been absent for years

During cross-examination, Norhana who is currently District Education Assistant Officer in Kota Belud, admitted she was aware of [D1] Mohd Jainal’s absenteeism not just in 2017 but years before that. She also agreed that any teacher’s absenteeism from teaching is a serious offence.

D2 Suid: "complaining is pointless”

• D2 Suid Hanapi shared that “I feel that their action of complaining is pointless because it is already the end of the year.
• “If they complain about this since the beginning of the year, then I can take appropriate action. “If they are sincerely want to learn, this matter would have been communicated from the beginning,” Suid said, under cross examination by counsel Sherzali Herza Asli who represented the three plaintiffs.
• Suid also agreed that as a principal it is his job to be fully aware of all rules & regulations and ensure that it is followed, and must take action against any serious violations committed by the teachers.
• To a question by Sherzali, Suid said he did not know [D1] Mohd Jainal admitted under cross-examination that he (Mohd Jainal) was absent on numerous occasions in his scheduled English classes for 4SS in 2017.

D2 Suid Hanapi
Testimony Quotes

NOTE: D2 retired in 2020 as a 36-year veteran principal; D2 had remained principal at SMK Taun Gusi between 2012 to 2020. D2 has previously been recognized as a Pengetua Cemerlang.

The Court on D2's notice & testimony

• D2 is Suid Hanapi, the "Pengetua Cemerlang" of SMK Taun Gusi in 2017. All school teachers and administrators are under his direct supervision.

 1️⃣ D2 flip-flopped on when he learned of D1's absences. Ds' Defence and Agreed Facts claimed D2 was notified of D1's absences in May 2017. But during trial, D2 claimed he only learned of it in November 2017. The Court concluded "Ds are bound by their own pleadings" and the "unexplained departure…appears to be an afterthought." 🔥

• Ps and Ps' witnesses notified D2 officers Cikgu Kamisah (class teacher 4SS) and Cikgu Shamsul (assistant class teacher 4SS) of D1's absences, but "instead of taking action", they responded that "they do not want to get involved" & "ignore[d] D1's transgressions." 🔥
• PW1, PW2, and others had informed D2 officer PK1 Johari Hajat of D1's absences. On 2 Nov. 2017, D2 officer PK1 Johari had admitted even more. The Court quoted him: "Johari: 'JJ itu sebenarnya lama sudah perangai dia memang begitu' ." 🔥
• ​​PW1 successfully explained under cross why different students calculated D1's absences differently in this recording. ✅
• ​PW2 and PW5 had informed D2 officer Ketua Panitia Bahasa Inggeris (KP BI) Awang Erawan of D1's absences. On 31 Oct. 2017, D2 officer KP BI Awang had admitted even more. The Court quoted him: "Awang Erawan: 'Bukan pertama kali tapi lebih baik kita tidak, sebab saya tidak mahu kamu membuat sesuatu tanggapan. Buat masa ini kalau boleh saya pun tak nak dia dikenakan tindakan disiplin dan sebagainya tetapi dia harus sedar bahawa apa yang dia buat sekarang dia adalah tak sepatutnya.' " 🔥
• DW3 Norhana "failed to address or refute" this recording in any testimony, whereby "this further confirms the school administration ...failed to act against D1." ✅
• PW6, PW1, PW2, and PW10 all stated D1 had leaked the exam questions to the 4 SS class. Further, PW6 and PW2 placed the 4 SS buku kawalan and leaked exam questions on DW3's desk. Neither D1, D2, nor DW3 refuted this in any testimony. ✅

The Court on D2's notice & testimony

• PW5 had informed D2 of D1's absences in May 2017. 🔥
• • D2 "never addressed [n]or refuted" this mid-year notice by PW5 in any testimony. ✅
• PW3, PW4, PW5, and others had  informed D2 again of D1's absences on 1 Nov. 2017. 🔥

The Court on D2's notice & testimony

• The Court concluded from the Ps' & Ds' Agreed Facts, Ds' evidence, Ds' testimony, Ps' testimony, and Ps' evidence that "D2 had notice of D1's absences since May 2017". 🔥
• Further, the Ps had also notified D2's officers, yet were rebuffed with orders to "self-study". 🔥 Despite knowing since May 2017, "D2 failed to take any reasonable steps to exercise disciplinary control & supervision over D1." ✅
• D2's testimony where he claimed he was first informed of D1's absences in Nov. 2017 is "not credible and the Court finds DW2 to be an unreliable witness." 🔥

The Court on D3 and D4 re: D1 and D2

• D3 is the Director-General of the Ministry of Education and D4 is the Minister of Ministry of Education. Under s. 19 of the Education Act, D2, D3, & D4 had a statutory duty to prepare the Ps for English exams. Thus, D2, D3, & D4 "must ensure" the teacher provided to Ps are "reasonably competent" and "present in class". 🔥
• Jabatan Pendidikan Negeri Sabah (JPNS) is under the "purview and jurisdiction" of D3 and D4.  The Ds "tendered the JPNS record" and "these records prove D1's absences at the material time." 🔥
• "This means that JPNS, and by extension D3 and D4, were aware or ought to have known about D1's transgressions." ✅
• As D1 was absent, D2, D3, and D4 had "a statutory duty to take appropriate disciplinary action" against D1. ✅
• Again, as Ds themselves tendered the damning JPNS record, D3 & D4 "were aware or ought to have known" of D1's absences. ✅
• As D2 refused to act vs. D1, D3 and D4 also had a "a statutory duty to take appropriate disciplinary action" against D2. ✅

The Court on D3 and D4 re: D1 and D2

• D2 could've taken appropriate disciplinary action vs D1. D2 did not.
• D2 could've provided another English teacher for Ps. D2 did not.
• D2 could've provided additional English classes for Ps. D2 did not.
• The Ps' hardship, losses, and / or emotional injury—caused by 1) D1's absences and 2) D2's, D3's, and D4's lack of supervision and disciplinary action—was "reasonably foreseeable" by the Ds.
  • Thus, the Ds also had a "common law duty of care". Ds are then "liable for breach of statutory duty and negligence". ✅
• However, the Court does not find Ds acted with "targeted malice" nor an intended "reckless indifference" towards the Ps, thus Ds' misfeasance in public office cannot be established.

The Court on D5 re: vicarious liability

• D5 is the Federal Government of Malaysia. ​It is "undisputed" D1, D2, D3, and D4 are "employees or servants or agents" of D5. 🔥
• D3 and D4 "were aware or ought to have known" because they tendered the damning JPNS record. Thus, D3, D4, and D5 are held "vicariously liable" for the acts and omissions of D1 and D2. 🔥
  • The Court rejected the AGC-MOE's claim that D3, D4, and D5 are not liable by ss. 5 and 6 of the Government Proceedings Act (GPA) 1996. These state tort claims against the Government require the Government officer responsible to also be made a Defendant. In this case, Government officers D1 and D2 were Defendants as well as the D3, D4, and D5 (Government). Thus, the GPA ss. 5 and 6. are "no longer a relevant consideration...."

The Court if Ds took reasonable steps

• "In light of the...above...the Court does not find that D1 to D5 took any reasonable steps to safeguard the rights of the Plaintiffs." 🔥

The Court if Ds violated the Constitution

• Guided by multiple authorities, the Court "adopt[s] a prismatic approach" so articles 5 and 12 of the Federal Constitution are "read together" "as broadly as possible" with "a generous and liberal interpretation". 🔥
• Thus, the constitutional right to education under article 5 & 12 is clarified as including the right to be provided a teacher:
  • who enters class; and
  • who teaches class; and
  • who prepares their pupils for examinations.
• The Ds have thus breached the Constitution. 🔥