Bullying is not a new problem in our schools. As of October last year, the Ministry of Education recorded 4,994 cases, a significant rise from the already high 3,887 cases reported in 2022.
Recognizing the problem, the Ministry of Education, schools, teachers, NGOs, and even the public have implemented strategies aimed at addressing bullying. These initiatives primarily focus on educating both perpetrators and victims about how to prevent or withstand bullying.
However, little attention has been given to the responsibility of schools and the education system to actively prevent bullying, establish a clear duty of care, and set standards of safety to counter this growing issue.
Against this backdrop, the Federal Court’s decision in Ahmad Ikhwan Ahmad Fauzi v. Mohd Fahimi Endut & Others and Another [2024] MLRH, handed down on 29 March 2024, has considerable significance for how schools and the government address bullying.
The Federal Court’s decision involved an extreme case of bullying at a residential school, where a student was assaulted by five peers, leaving him deaf in one ear. The assault occurred in the Head Prefect’s room and lasted for nearly five hours in the middle of the night, involving repeated physical abuse. The student victim did not report the incident due to fear of reprisal, only revealing his injuries days later during follow-up medical treatment. His father then lodged a police report.
The five assailants were subsequently charged in the Magistrates' Court and, after pleading guilty, were given good behaviour bonds without a recorded conviction.
The Federal Court’s decision culminated from a civil suit the victim filed in the High Court against his assailants and the school’s Head, Senior Assistant for student affairs, the Ministry of Education, and the Government of Malaysia. The High Court found all nine defendants liable, but the Court of Appeal later reversed this decision, citing insufficient evidence to establish assault and a lack of foreseeability by the school. However, the Federal Court reversed this on appeal, reinstating the High Court’s findings.
This note focuses on the Federal Court’s ruling on the school’s liability for bullying occurring on its premises. It does not address the Court of Appeal’s technical issues concerning whether the guilty pleas in the Magistrate’s Court were adequate to establish a civil claim for assault.
In its ruling, the Federal Court began by emphasizing the importance of safety in schools:
"It goes without saying that schools, residential or otherwise, must be safe and conducive for the purpose(s) intended. Otherwise, the providers and consumers of such institutions would face considerable difficulties in enrolment, whether of student or teaching faculty."
This statement should now be seen as affirming a duty of care for schools and the Ministry of Education to ensure a safe environment for students. The Court emphasized the “special relationship between teachers and similar personnel and the student,” aligning this with the in loco parentis doctrine, which holds that teachers have similar responsibilities to those of parents in caring for students’ safety and welfare.
The Court outlined essential steps schools must take to fulfil their duty to prevent bullying, whether residential or otherwise.
First, it highlighted the importance of raising awareness of bullying, noting that this could have a preventative effect.
Second, the Court stressed the need for schools to include discipline as a vital part of the curriculum, stating:
"Basic values of mutual respect for one another must be inculcated in all our young, and it should not be left to expensive and unfortunate incidents such as were revealed in the appeal to remind us of these values."
Finally, the Court affirmed that teachers and other school staff have a duty to supervise students on school grounds, ensuring discipline, safety, and well-being. The extent of required supervision depends on specific circumstances; in this case, evidence showed that regular spot checks in the room where the assault occurred were not conducted on the night in question.
The Federal Court’s decision in Ahmad Ikhwan Ahmad Fauzi v. Mohd Fahimi Endut & Others serves as a landmark ruling, affirming the duty of care schools must uphold to prevent bullying and outlining the concrete actions they must take to meet this duty.
The responsibility is now with the Ministry of Education to initiate a training programme for all personnel working in schools and to add a compulsory course on bullying for pupils at all levels of education.