It is misguided for the government to shift blame to plaintiffs or their counsel in the absent teacher case regarding the RM150,000 court-ordered damages, as the onus of payment fell on the former to ensure the damages are paid, said lawyer Sherzali Herza Asli.
Sherzali, who appeared for the plaintiffs Rusiah Sabdarin, Nur Natasha Allisya Hamali, and Calvina Angayung, who sued their teacher for absenteeism in 2020, said the government made a conscious decision not to appeal the Kota Kinabalu High Court’s order, which, therefore, they accepted the decision in full.
Once the judgment stands unchallenged, he added, the burden in law shifts squarely onto the government and the Attorney-General’s Chamber (AGC) to take all necessary steps to effect payment without delay.
“It is illogical to place this burden onto the plaintiffs or their counsel when the judgment is already known to the defendants whom the AGC represents. The AGC lost the case, chose not to appeal, and then allowed more than two years to pass without initiating payment.
“In these circumstances, it is wholly inaccurate and unfair to suggest that the plaintiffs or their lawyer are at fault (as) the delay is entirely attributable to the inaction of the government and AGC,” Sherzali (above) told Malaysiakini.
This was in response to Attorney-General Dusuki Mokhtar’s statement on Friday, where he said the plaintiff’s counsel should have inquired about the payment status of the court-ordered damages.
This came after the plaintiffs and Sherzali claimed that the government had not paid the RM150,000 damages, as ordered by the Kota Kinabalu High Court in 2023, and that there was no application to stay the payment nor an appeal against the decision.
Calvina claimed that the five percent interest on the damages has accumulated to RM17,541.67 to date.
Sherzali further added that the court had ordered a five percent interest on the judgment sum to ensure compliance and to prevent injustice to successful litigants.
“This (the interest) is not a trivial matter (as) it follows that the obligation lies on the AGC to ensure prompt payment so that interest does not accrue unnecessarily.
“The AGC cannot ignore the judgment for more than two years, allow interest to accumulate and then fault the plaintiffs for not following internal procedures that were never communicated.
‘Court order speaks for itself’
Sherzali further added that it is nonsensical to blame the plaintiffs or their counsels for not submitting a specific form or letter inquiring the status of the payment, when a valid court order already exists and goes unchallenged since 2023.
“The onus is on the losing party to make payment pursuant to the order. Suggesting that the plaintiffs must first ‘claim’ or ‘apply’ for damages that have already been ordered by a court of law is contrary to basic principles of justice.
“The AGC, as the government’s legal representative, is fully aware of the judgment and should have acted immediately after choosing not to appeal.
“There is nothing to ask (as) the court order speaks for itself. The defendants know precisely what must be paid and to whom,” he said.
He added that the expectation that citizens must chase the government, submit forms, or follow opaque internal standard operating procedures before a court order is honoured is one of the reasons public confidence in institutional efficiency remains low.
He further said that allowing avoidable interest to accrue due to bureaucratic inertia is a misuse of public resources and demonstrates a troubling lack of urgency in fulfilling legal obligations.
“The attempt to shift responsibility to the plaintiffs or their counsel is misguided.
“The facts are simple: the High Court issued a judgment; the government did not appeal; payment must follow. The AGC should now move without further delay to honour the court order and bring closure to this long-standing matter,” said Sherzali.
Victory for ex-students
The three former students had sued the government, the Education Ministry’s director-general and minister, as well as SMK Taun Gusi’s principal, Suid Hanapi, and teacher Jainal Jamran over the teacher’s absenteeism.
The trio won the case after the court found they had proven the teacher was frequently absent in the months leading up to their November 2017 examination, with no evidence that he was on leave or engaged in other school activities.
The Kota Kinabalu High Court judge Leonard David Shim had awarded RM50,000 nominal and aggravated damages to each plaintiff and a separate five percent interest per annum from the July 18, 2023, verdict date until the full settlement.
The judge ruled that the defendants breached their statutory duty under the Education Act 1966 and Regulations 3C, 25 and 26 of the Public Officers (Conduct and Discipline) Regulations 1993. - Mkini
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