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Rakyat bangkit untuk pendidikan bersih.
Malaysians have stood up for clean education.
Tiada.Guru MOE teachers have blown the whistle for combined decades to enforcement agencies, MOE Integrity Unit officers, JPNs, PPDs, principals, and parents.
We are the minority. Most cases are never reported by anyone.
Email: contact@tiada.guru | Website: tiada.guru
December 2020
SMK Taun Gusi, Jalan Kudat, 89150 Kota Belud, Sabah, Malaysia
SMK Taun Gusi "Semtasi"
Few in our history have been raised with so little, yet fought so compassionately as these three High Court Plaintiffs:
July & August 2023
“flagrant disregard” |
“unprofessional conduct” |
“abhorrent attitude” | “psychological trauma” |
“humiliating” | “breach of statutory duty” |
“unfair” | “no credible evidence” |
“high-handed” | “breach of the Education Act” |
“leaked questions” | “knew about DW1’s absences” |
“indiscretions” | “violated…the Constitution” |
“despite knowing” | “lack of supervision” |
“emotional injury” | “failed to…refute recording” |
“hardship, loss” | “never refuted by DW2” |
“negligence” | “strict liability on the offender” |
“breach of confidential information” |
“shift all blame from the absent teacher to the students” |
“DW1…did not produce…any…documentary evidence” |
“Instead of taking action…ignore…transgressions” |
“failure…to produce…not been satisfactorily explained” |
“does not find him [DW1] to be a credible witness” |
“failed to adduce credible evidence to prove otherwise” |
“clear and unequivocal admission of his absences” |
“no evidence…Defendants…made genuine attempts” |
“was notified of the first defendant’s absenteeism” |
“JPNS... D3, D4 ... were aware or ought to have known” |
The formal term for a lawyer or legal counsel. Importantly, they do not merely represent their clients: first and foremost, they are Officers of the Court.
The most basic and overarching role for all advocates and solicitors in both private and public service. As Officers of the Court, their sworn responsibilities are to 1) assist the Court (e.g., the Judge) in its fact-finding mission and 2) represent their clients to ensure they are not unjustly treated during the litigation process.
The formal term for a Plaintiffs' pleadings. In this document, the Plaintiffs state their legal claims, laws violated, and remedies requested from Court. Here, the Plaintiffs are Rusiah, Nur Natasha, and Calvina, which are represented by Sherzali Asli of Asli & Cham Chambers. The Judgment rules on only these formal claims in this document.
The formal term for the Defendants’ pleadings. In this document, the Defendants admit to any part of Plaintiffs’ Statement of Claim and defend the rest. The Defendants must make specific responses to each claim. Here, the Defendants are the teacher, principal, and MOE, all represented by the Attorney General’s Chambers (AGC). The AGC is assisted by the MOE’s Legal Unit to conduct a legal investigation, e.g., gather evidence.
Before trial begins, each party must share with the other party & the court their exhaustive evidence to prove their pleadings. The bundle may include documents, transcripts, audio, images, videos, etc.
An exception are subpoena witnesses who may tender fresh evidence when during trial.
A person that knows first-hand information or has evidence about events in the Statement of Claim or Statement of Defence.
The witness' basic and overarching role is to assist the Court in its fact-finding mission: they are not called to "help only one party" or "protect someone".
Each party must call enough and all relevant witnesses to prove their pleadings. Parties may a) call witnesses that choose to testify voluntarily or b) file a Court-ordered subpoena to testify under the penalty of law.
Witnesses testifying voluntarily will submit their evidence early so that their evidence is included in the party's evidence bundle of the party that called them.
Subpoena witnesses appear only later in litigation and thus may submit new evidence during their trial testimony.
All testimony is protected from defamation claims, e.g., you cannot be sued only for what you stated in Court.
The trial's full transcript, i.e., all witness testimony; all advocate & solicitor's questions, comments, and objections; and all of the Court’s verbal orders.
Each party's closing arguments, prepared by their advocate & solicitor. It summarizes for the Court all witnesses, adduced evidence, and case law (e.g., case precedent) as a final stand essay on why their side must win.
The Court’s finding of fact and final conclusion after consideration of both parties’ witnesses, evidence, and submissions. After appeals, it stands as the conclusion on the matter. This Judgment must accept or deny each of the Plaintiffs' claims, in part or in whole. In a civil case like this, a claim is accepted if the claim's evidence & testimony is stronger than the evidence & testimony against it.
An order by the Court, often pre-trial, for one party to stop doing something. In some cases, it can be a restraining order, e.g., stop party A from contacting or meeting party B before trial.
The legal standard is quite high to obtain a Court injunction, especially against the Government. Significant evidence must be produced to prove that such a protective order is fair, necessary, and refusing this order would allow the offending party to permanently disrupt litigation.
A legal principle that a superior is also responsible for their subordinates' conduct. It arises from a superior's responsibility to monitor / prevent / halt / limit their subordinates and any injury they may cause. Malicious intent is not required for vicarious liability to be activated.
The second and final half of a witness' testimony in trial. Now, the opposing party's counsel will question this witness on their evidence & their EIC. Cross allows the opposing party to find holes or critical mistakes from the witness' EIC earlier, either in testimony or evidence. Here, the Defendants' AGC Senior Federal Counsel cross-examines the Plaintiffs & Plaintiff witnesses.
The first half of a witness' testimony in trial. During EICs, witnesses answer questions from the party that called them to 1) explain what they saw; 2) what they did; and 3) any relevant background information the Court may not be aware of. For example: if the Plaintiffs call themselves as witnesses → their counsel will ask the EIC questions. If the Plaintiffs subpoena an MOE officer, the Plaintiffs' counsel will ask the EIC questions to that officer. The EIC can be a pre-written Witness Statement with optionally new questions at trial, or for subpoena witnesses, only new questions at trial.
The Government's tasks as required by law. It is the list of actions that a public servant / public body must do or must follow in order to obey the law.
Public servants serve the public by implementing specific laws, regulations, and legal precedents (Judgments made in finished cases). All statutory duties are required by law. "Statutory" means related to a "statute", another word for a "law", e.g., legal duties.
Violation of a public servant's statutory duties is equivalent to a public servant breaking the law.
Schools = lowest level
PPD = Pejabat Pendidikan Daerah or District Education Office
JPN = Jabatan Pendidikan Negeri or State Education Department
KPM = Kementerian Pendidikan Malaysia or Ministry of Education
If Party A had relevant evidence, but 1) withholds or fails to produce that evidence and then 2) cannot satisfactorily explain why / how their evidence cannot be produced, the Court will presume that evidence was not favorable to Party A. Thus, it is "adverse" (negative) + "inference" (logical, evidenced conclusion). For example, if a principal cannot explain why crucial school documents were mysteriously lost.
First, both parties simplify by carefully writing a list of agreed facts that they agree on. By admitting these uncontested facts, it allows the trial—and the judge—to primarily focus and decide on the core disputes, thus...
Second, both parties simplify by carefully writing a list of core disputes where both parties disagree. These core disputes summarize the claims & defences into short, factual questions. The Judgement answers each core dispute, e.g., who is right and why.
Before a trial begins, both parties sit down to simplify the case that the Court will hear. They perform this simplification in two ways: 1) agreed facts and 2) agreed issues to be tried.
Material means "relevant". For example in this litigation, the "material time" of the 1st Defendant's attendance only includes the English periods in the Plaintiffs' classes.
Similarly, immaterial means irrelevant. Thus the 1st Defendant's English period attendance in other classes would be immaterial / irrelevant / not important.
What is the threshold for a Judge to agree with a party's claim in a civil proceeding? Simply, the Judge compares 1) the explanation & evidence for the claim vs 2) the explanation & evidence against the claim. The party whose claims' strength is larger than 50% has the Judgment made in their favour. The threshold for a criminal proceeding is far higher.
"Credible" means believable or trustworthy; "not credible" is not believable or untrustworthy. Judges often remark on witness' credibility in their Judgment. A witness' credibility can be discerned by a witness' demeanour in testimony, the witness' supporting evidence or lack thereof, and / or the witness' willingness to fully explain key events (e.g., a not credible witness may reply "I do not remember" to far too many questions on events they ought to remember).
A successful negligence claim requires the proof that the offending party did not make even reasonable steps to prevent or mitigate the resulting damage.
"Reasonable steps" can be understood as prudent or ordinary acts of an average person. "Reasonable steps" do not require perfection; the standard is simply normal intelligence.
The highest and most sacred rights that no Government, not even a Prime Minister, can deny to any citizen. Constitutional violations carry severe legal penalties.
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.
The Ps stated that at SMK Taun Gusi in 2017:
.
Kerajaan amat serius dalam menangani kes pegawai tidak hadir bertugas dan satu panduan khusus disediakan bagi memastikan Ketua Jabatan mengambil tindakan kawalan dan pengawasan tatatertib terhadap pegawai bawahannya supaya kes tidak berulang. ... Tindakan awal perlu diambil oleh Ketua Jabatan atau penyelia dengan memantau pegawai bawahan masing-masing dan menegur atau memberi nasihat supaya pegawai sentiasa mematuhi waktu bekerja.
.
The Plaintiffs (Ps) asked the High Court for five remedies: first, four declarations:
The Ps also asked for a 5th non-declarative remedy: exemplary, general, and aggravated damages (money).
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?
Honourable High Court Judge
Justice Leonard David Shim
"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?"
"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."
"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."
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.
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.
"
"
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.
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.
From Jan. to Mar. 2021—just weeks after the lawsuit—the MOE's officers in Kota Belud harassed and threatened the Plaintiffs and their families. This MOE interference was at the same time as the AGC-MOE delayed their Defence by months. The Plaintiffs filed for a High Court injunction to restrain the Defendants on 22 June 2021.
One example: on 22 January 2021, SMK Taun Gusi principal Nuzie Balus called Plaintiff Rusiah to a closed-door meeting, where he and three male teachers threatened her. Critically, Rusiah planted an undercover audio recording device and captured it all. On 30 August 2021, the High Court ordered an historic restraining injunction against the D4 Education Minister, D3 Director General of Education, D2 Suid Hanapi, and D1 Jainal Jamran.
This historic High Court injunction lasted nearly two years, from
30 August 2021 (this Order) → 18 July 2023 (Judgement).
First, the Judgment revealed the MOE broke the law in 2017 when it failed to teach English to the 4 SS class. Second, this Injunction revealed the MOE broke the law again in 2020 when those same students spoke up.
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
The High Court ordered D1, D2, D3, and D4 to halt their Court interference against the Plaintiffs. This is one of the first-ever injunctions against a sitting Minister due to their Court interference.
5 September 2022 | 20 October 2022 | 21 October 2022 |
14 November 2022 | 15 November 2022 | 16 November 2022 |
23 November 2022 | 10 January 2023 | 11 January 2023 |
🧕 Plaintiffs' Claims 🧕 | 🏢 Defendants' Defence 🏢 |
---|---|
D1 was absent in the 4 SS class 1) frequently between March to July 2017 and 2) wholly absent from August to October 2017. | D1 was "present at all material times during the English classes for 4SS". D1 was not "frequently late or not fully present". |
D2 did not provide a relief teacher for D1 nor additional classes. The 4 SS class, including the Plaintiffs, never received the Form 4 English Curriculum. | D2 "had taken all appropriate and necessary actions on the problems faced at the material time". Further, "there were no infringement of the Plaintiffs" rights. |
Even though D2 was aware, D2 did not act against D1. Further, D3, D4, and D5 did not act against D1 nor D2. | All "Defendants had taken all appropriate and necessary actions on the problems faced at the material time." |
AF 1 & 2 | The Ps were registered students of SMK Taun Gusi and entered it F1 (Jan. 2014) to F5 (Dec. 2018).
AF 3 | The Ps were in Form 4 Sains Sukan (4SS) in 2017.
AF 4 | D1, D2, D3, and D4 are employees and/or servants and/or agents of D5.
AF 5 | D1 was assigned to the Ps' Form 4 Sains Sukan (4SS) in 2017 to teach English.
AF 6 | Sometime in May 2017, D2 was notified of D1's absenteeism.
Q1 | Did D1 fail to consistently teach 4 SS English in 2017 (Ps' class), thus failing to prepare the Ps for English exams?
Q2 | If Q1 is true, did D2 have notice of D1's failures?
Q3 | If Q2 is true, did D2 take reasonable disciplinary & supervisory actions against D1?
Q4 | Are D3, D4, and D5 vicariously liable for D1's & D2's failures?
Q5 | Did D3, D4, and D5 take reasonable steps to safeguard the rights of the Plaintiffs?
Q6 | Did the Ps suffer any damages due to the actions of D1, D2, D4, and D5?
PW = Plaintiff Witness; ex-4 SS student
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.
The High Court accepted all 11x audio / video recordings created by the Plaintiffs, which recorded the Defendants and themselves. The AGC-MOE could not and did not dispute the 90+ pages of transcripts:
# | Date | Parties inside the audio-video recordings |
---|---|---|
1 | 31 Oct 2017 | Norhayati, another classmate with: Penolong Kanan HEM Masturah Nanti |
2 | 31 Oct 2017 | PW5 Calvina, PW2 Suriana with: Ketua Panitia Bahasa Inggeris Awang Erawan |
3 | 1 Nov 2017 | PW5 Calvina, PW4 Mohd Fadzley, PW3 Rusiah, & "Aishah" with: Pengetua Cemerlang Suid Hanapi (D2) |
4 | 2 Nov 2017 | PW1 Nurul Afirah, PW2 Suriana, "Norhayati" with: Penolong Kanan Satu (PK1) Johari Hajat |
5 | 3 Nov 2017 | PW3 Rusiah, "two other classmates" with: Ketua Bidang Bahasa Norhana Idek (DW3) |
6 | 3 Nov 2017 | PW6 Nur Natasha, PW2 Suriana: Placed the 4 SS buku kawalan & leaked questions on DW3's desk |
7 | 3 Jan 2018 | PW5 Calvina (recording herself in 2018): D2 still had not acted vs D1 |
8 | 3 Jan 2018 | PW2 Suriana (recording herself in 2018): D2 still had not acted vs D1 nor provided kelas tambahan |
9 | 3 Jan 2018 | PW1 Nurul Afirah (recording herself in 2018): D2 still had not acted vs D1 nor provided kelas tambahan |
10 | 5 Jan 2018 | PW1 Nurul Afirah & "Norhayati" (recording themselves in 2018): D2 still had not acted vs D1, no kelas tambahan, and parents not told |
11 | 5 Jan 2018 | PW1 Nurul Afirah (recording herself in 2018): Similar to #9, and her difficulties in learning English now in Form 5 |
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.
Thus, the High Court ruled all recorded conversations as real and true.
[PW2] Suriana said on Oct 31, 2017, she and the third plaintiff Calvina met with Cikgu Awang Erawan to raise the matter and Calvina recorded their conversations with GoPro. “During the conversations, Cikgu Awang told us that although JJ did not enter the class, he did not want JJ to be subjected to disciplinary action.
[PW2] Suriana said that she and her classmate, identified only as Nur Natasha [PW6], had told their English teacher, known as “Norhana”, about Jainal’s absence and the examination leak. However no action was taken, [PW2] Suriana said. “We did met Cikgu Norhana who then told us that nothing could be done even though JJ did not enter the class." She said as example Cikgu Awang who did not enter the class for one year but the action to be taken was only to cut his salary. “Cikgu Norhana advised us to study by ourselves and did not depend on teachers,” Suriana said in her witness statement.
According to both witnesses [PW1 Nurul Afirah and PW2 Suriana], who are now aged 21, they also took their grouses to the school’s senior assistant administrator named Johari on November 2, 2017. The students also recorded the conversation and in it Nurul Afirah
recollected their first meeting with the senior assistant administrator, who promised them replacement classes which never eventually took place. She [Nurul Afirah] also alleged that on 2 November 2017, they also raised the matter with the school’s Administration Senior Assistant, Cikgu Johari, and claimed that they had informed him that the first defendant had not taught their class for seven months. She [Nurul Afirah] claimed that Cikgu Johari informed them that they were complaining at the wrong place and to the wrong person and they should complain to the first defendant or to the school principal.
[PW5] Calvina went to meet the principal [D2] on November 1, 2017 with her three classmates and she was an wearing audio recording watch at that time. She also claimed that the principal had said that no action would be taken against her English language teacher as the complaint was made at nearly end of the year.
Calvina further said that the principal asked them to change their attitude to be more forgiving and not having a grudge on anyone.
In her witness statement, Calvina stated that the principal claimed that he used to study for 18 hours a day and asked why they (Calvina and her former classmates) did not do the same.
Calvina Angayung, 21, who is a local university student majoring in government and politics research, testified before Justice Leonard David Shim that the principal of the school in Kota Belud had called them dumb twice and compared them with himself.
Calvina also stated that the principal even accused them of being irresponsible as they did not complain about the matter earlier.
“When we met the principal we have asked him if he knew about the problem of a teacher [D1] who did not enter our class in which he replied he did not know about it and said he only knew about the issue when one ‘Cikgu Awang’ made a report to him.
According to Calvina, no action was taken by the school pertaining to the problem even after they met several teachers as well as the principal.
Dr Noor Aishah Rosli is a child clinical psychologist, Registered Counselor, Court Advocate, and a part-time lecturer at Universiti Malaya. She was called by the Plaintiffs as an expert witness.
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.
All Defendant witnesses (DW) testified with Witness Statements. The AGC-MOE did not call any witnesses from the Sabah State Education Department, (D4) Ministry of Education , nor (D5) Federal Government.
The Defendants completed their entire Defence testimony in two days of trial. Only three witnesses were called: D1, D2, and Norhana Idek. Norhana Idek was then the Ketua Bidang Bahasa in 2015 and 2017, had allegedly threatened Cikgu Nurhaizah in 2015 over D1’s absences, and was recorded secretly by the plaintiffs in 2017. Norhana has since been promoted to the Kota Belud PPD.
[D1] Mohd Jainal Jamran, 50, testified before Justice Leonard David Shim that he was never informed by the school’s principal nor any teacher at the school about the alleged matter. In his witness statement, Mohd Jainal further testified that he had also never seen any written complaint against him.
This amounts to all English lessons for the plaintiff's class in those months, while he testified he was in school at all for two of those days.
April 2017
Sherzali (Plaintiffs' advocate & solicitor): In fact, the State Education Department had also officially confirmed that you were not entering the said class nine times in the month of April 2017, correct?
D1 Mohd Jainal: Correct.
Sherzali: That would mean that you were absent nine times for the month of April 2017 in respect of 4SS’s English language classes, correct?
D1 Mohd Jainal: Correct.
May 2017
Sherzali: Please refer to the Buku Kawalan for the month of May 2017, you did not sign your attendance on May 4, 2017, correct?
D1 Mohd Jainal: Correct.
Sherzali: The State Education Department had also officially confirmed that you were absent on May 4, 2017 in respect of English language subject for the said class, correct?
D1 Mohd Jainal: Correct.
Sherzali: That would mean that you were not present at the said class for English language lesson on May 4, 2017, correct?
D1 Mohd Jainal: Correct.
June 2017
Sherzali: The State Education Department had also officially confirmed that you were absent six times in the month of June 2017 in respect of the said English language classes for form four Sports Science class, correct?
D1 Mohd Jainal: Five times.
July 2017
Sherzali: Please refer to the Buku Kawalan for the month of July 2017, you did not sign your attendance in these documents, correct?
D1 Mohd Jainal: Correct.
Sherzali: That would mean that you were absent on July 6 and 17, 2017 in respect of form four Sports Science’s English language classes, correct?
D1 Mohd Jainal: Correct.
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.
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] 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] 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."
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.
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.
Honourable High Court Judge Justice Leonard David Shim
Rusiah Sabdarin & Ors v. Mohd Jainal Jamran & Ors [2023] 8 CLJ 603 [HC]
AF 1 & 2 | The Ps were registered students of SMK Taun Gusi and entered it F1 (Jan. 2014) to F5 (Dec. 2018).
AF 3 | The Ps were in Form 4 Sains Sukan (4SS) in 2017.
AF 4 | D1, D2, D3, and D4 are employees and/or servants and/or agents of D5.
AF 5 | D1 was assigned to the Ps' Form 4 Sains Sukan (4SS) in 2017 to teach English.
AF 6 | Sometime in May 2017, D2 was notified of D1's absenteeism.
Q1 | Did D1 fail to consistently teach 4 SS English in 2017 (Ps' class), thus failing to prepare the Ps for English exams?
Q2 | If Q1 is true, did D2 have notice of D1's failures?
Q3 | If Q2 is true, did D2 take reasonable disciplinary & supervisory actions against D1?
Q4 | Are D3, D4, and D5 vicariously liable for D1's & D2's failures?
Q5 | Did D3, D4, and D5 take reasonable steps to safeguard the rights of the Plaintiffs?
Q6 | Did the Ps suffer any damages due to the actions of D1, D2, D4, and D5?
1️⃣ Ds' own evidence of 4 SS' 1st sem. buku kawalan: D1's missing signatures exactly tally with Ps' claimed D1 absences. ✅
2️⃣ Ds' own evidence of the JPNS (Jabatan Pendidikan Negeri Sabah) official Integrity Unit record of D1's 4 SS absences exactly tallies with Ps' claimed D1 absences. ✅
3️⃣ Under cross, D1 finally admitted months of absences in 4 SS, exactly tallying with Ps' claims. Thus, D1 contradicted his sworn EIC. ✅
4️⃣PW10 Cikgu Nurhaizah's secret 4 SS recordings during D1's English periods exactly tallied with Ps' claims of D1 absences ✅.
5️⃣ D1 leaked the English exam questions to Ps class; this conclusion is supported by D1's admission, D1's inability to rebut video & documentary evidence showing the leaked English exam questions, and the AGC-MOE's failure to object to that evidence. 🔥
6️⃣ In conclusion,
D1 | MOHD JAINAL BIN JAMRAN (TEACHER) |
D2 | HJ. SUID BIN HJ. HANAPI (PRINCIPAL) |
D3 | DIRECTOR-GENERAL OF EDUCATION |
D4 | MINISTER OF EDUCATION MALAYSIA |
D5 | GOVERNMENT OF MALAYSIA |
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." 🔥
The Judgment repeatedly cited one piece of the Ds' own evidence against them: the "JPNS official record" actually proved the Ps' claims.
Para. 15-16: It compared D1's absences in the 1st semester buku kawalan vs the JPNS official record: the JPNS record's absences tallied virtually perfectly.
Para. 22: It noted the Ds never disputed the JPNS official record; D1 admitted under cross that he was absent precisely when the JPNS official record stated he was absent; PW10 Cikgu Nurhaizah's video evidence of the 4SS classroom also precisely aligned with the JPNS official record.
Para. 62-63: It confirmed the MOE & Fed. Gov't are vicariously liable because the 1) JPNS official record clearly showed D1 was absent & 2) it was tendered by the Ds.
Para. 92-93: For years, the AGC-MOE disputed the truth that D1 was absent. Even after the AGC-MOE produced unequivocal evidence that D1 was absent, the AGC-MOE swore that D1 was "always present" in the Plaintiffs' class. This type of trial conduct must have consequences.
After ex-students of 4 SS—from SMK Taun Gusi in one of Malaysia's ten poorest districts—testified against D1 and D2, the AGC's Senior Federal Counsel (SFC) / Federal Counsel (FC) began a line of questions.
Even as the AGC-MOE long held evidence proving Ps' claim of D1's
absences, their Officers of the Court prepared & asked trial questions that humiliated & victim-blamed these student whistleblowers in Court.
The Court stated this "appears to be an attempt to shift all blame from the absentee teacher to the students" (full quote below).
Court proceedings are public and all trial testimony is protected from legal claims of defamation. Thus, the Ps and Ps' witnesses would have no recourse against the AGC for any humiliation claims based on trial.
A public rebuke of the AGC by the Court is quite rare; this line in the final Judgment illustrates how severe the AGC's trial questioning truly was.
We surmise some conclusions not explicitly stated in the Judgement:
The conclusion is clear: the AGC-MOE shifted the blame from itself & officers to the child victims & the Court did not take that lightly.
Throughout the Judgment, the High Court noted instances of the AGC-MOE first claiming an event and then providing zero evidence for that or changing their story at trial. Critically, the Judgment noted that throughout litigation, AGC-MOE's legal filings were never amended.
Because of the AGC-MOE's "non-production and/or withholding", the Court was "constrained to invoke s. 114(g) of the Evidence Act 1950 and draw an adverse inference against the Defendants."
The Court cited a case authority that aggravated damages can stem from a counsel's "conduct" trial and litigation. Aggravated damages are unique and are not guaranteed simply by winning a case; they require injury that was "exacerbated by the exceptional conduct". Thus, the offending party's injury must be "justifiability heightened by the manner in which or motive for which" the offending party did it. Aggravated damages are usually granted in cases of physical assault, defamation, malicious prosecution, or false imprisonment.
In this case, not only were aggravated damages based on the Defendants' acts, but also on their AGC-MOE counsel's acts during litigation and trial. We remind that legal counsel are Officers of the Court: it is their duty to assist the Court to discover the facts and ensure their client is fairly treated.
Obviously, it is never a counsel's right to mislead the Court nor protect any individual from due legal consequences, even if it is their client. Here, the Court was so disturbed by "the way litigation or trial was conducted" by the AGC-MOE's counsel that they were also held responsible next to D1, D2, D3, D4, and D5 in the RM20,000 in aggravated damages granted to the Plaintiffs.
The Plaintiffs were granted three declarations against the Defendants' acts & omissions. These declarations confirm the MOE and its officers broke the law by refusing to teach the Plaintiffs, refusing to take disciplinary action, and further doing nothing to assist the Plaintiffs after they broke the law.
Mohd. Jainal Jamran
SMK Taun Gusi teacher
Hj. Suid Hanapi
SMK Taun Gusi principal
Federal Government of
Malaysia
Minister of Education
YBM Radzi Jidin
YBM Fadhlina Sidek
Director General of Education
Nor Zamani Abdol Hamid
Pkharuddin Ghazali
Hj. Suid Hanapi
SMK Taun Gusi principal
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
Federal Government of
Malaysia
The Plaintiffs were not granted the declaration that D1 and D2 had committed misfeasance in public office.
All cases of extreme teacher absenteeism in any school with:
That absent teacher has breached the Education Act.
That school principal has breached the Education Act.
That Edu. DG & Edu. Minister have breached the Education Act.
That Federal Government has breached the Education Act.
and
That absent teacher has breached the Federal Constitution.
That school principal has breached the Federal Constitution.
That Edu. DG & Edu. Minister have breached the Federal Constitution.
That Federal Government has breached the Federal Constitution.
and
That school principal has breached the POCDR.
The Plaintiffs requested three types of damages: General, Aggravated, and Exemplary Damages. Damages are first designed as compensation and based on the principle of restitutio in integrum, i.e., to make the Plaintiff whole or to put them back into their original position if they Defendants had never acted wrongly.
The Court found the nature of the Plaintiffs' injury was initially "difficult" to assess appropriate damages. Still, the Court concluded that damages must be awarded, citing case authority that novel cases will require estimates and are still fair.
General Damages represent losses that "cannot be precisely quantified" including pain, suffering, loss of future earnings, and other not-directly-financial losses.
The Plaintiffs tendered specific evidence & case authorities for General Damages including violations of the Federal Constitution (which do not require specific amounts to be quantified), D2's flagrant disregard and abhorrent attitude, and PW10's recorded conversations with Cikgu Eddy regarding D2's knowledge of D1's failures, but explicit and intentional refusal to act.
The Court awarded RM30,000 to each Plaintiff (thus 3x Plaintiffs = RM90,000 total) in General Damages. It decided via five factors:
Aggravated Damages are reserved for cases when the Defendants' "reprehensible conduct" has injured the Plaintiffs' dignity or pride. It is often included in cases of physical assault, defamation, malicious prosecution, or false imprisonment. Aggravated Damages are still to compensate the Plaintiff, not to punish the Defendant.
The Plaintiffs tendered specific evidence for Aggravated Damages including Dr Noor Aishah's report discussing the "structural violence" of the Defendants that was "producing and perpetuating" inequality at SMK Taun Gusi and the Malaysian education system.
The Defendants retorted that "there was never any type of injury", there was "no official complaint", and the recording of the Defendants was made with an unclear motive and only at the end of the year.
The Court awarded RM20,000 to each Plaintiff (thus 3x Plaintiffs = RM60,000 total) in Aggravated Damages. It decided via six factors:
Exemplary Damages are to punish the Defendants and to set an example for others; it is the most extreme and most difficult to justify type damage. It requires the Defendants to have acted in an "outrageous or insulting manner".
Exemplary damages, in this case, would have relied on "oppressive, arbitrary, or unconstitutional action" by government servants. It includes "ultraviolent acts" and it also punishes unjust enrichment. In short, it is a deterrent and more as punishment against Defendants versus as a type of compensation for Plaintiffs directly.
The Judgment did not highlight any specific reason to allow nor disallow Exemplary Damages in this case.
The Court awarded no Exemplary Damages to any Plaintiff.