KUALA LUMPUR, May 3 — A private religious school in Johor may be held liable for the actions of an assistant warden under investigation for the death of a schoolboy from alleged abuse, legal experts said.
Lawyer Andrew Khoo said the school could be found responsible for its employee’s actions, adding that the child’s parents could sue both the school and the assistant warden accused of beating the boy, and possibly even the Johor Islamic Religious Department (JAIJ) under which the school was registered.
“As the assistant warden was employed by the Madrasah Tahfiz Al-Jauhar, then they would be vicariously liable for all acts and omissions of the assistant warden,” he told Malay Mail Online, adding the religious department could be sued if it had responsibilities to supervise the school but its failure to supervise or inadequate supervision led to the child’s death.
Depending on the outcome of the police investigation, he said the school’s liability could also rise, such as if the assistant warden is charged under Section 31 of Child Act 2001 that makes it a crime for any person to abuse, neglect, abandon or expose the child under his care to harm.
“If any other member of staff or management of the school knew what was happening and did not do anything, they could be charged as an accessory,” he added. Section 31 is punishable by a maximum RM50,000 fine or maximum 20-year jail term or both.
While hiring a former convict is not against the law, he said it added more burden for the school to demonstrate it did not act inappropriately and outside the best interests of its wards.
“So far, there has been no allegation that he was unfit person to work with children other than the fact that he had a criminal record. His offence so far as it is known is not connected to children,” he added.
Police revealed the assistant warden was previously convicted for theft. The school later said it knew this when clarifying that he had completed his parole when he was hired and insisting that he performed his duties well.
Tham Hui Ying, who took over as Association of Women’s Lawyer (AWL) president last week, said the parents could sue the school for negligence subject to the “facts, reports and observations of other witness and evidence”.
She further said the school could face civil or criminal action under the Sections 29 and 31 of the Child Act 2001, a law under which the school has certain “duties and responsibilities” to fulfill as a child care provider.
“Failure to meet these obligations may attract criminal liability,” she told Malay Mail Online.
Under Section 29, any child care provider who does not report their knowledge or suspicion of abuse or neglect in a timely manner may be jailed up to two years or fined no more than RM5,000.
Tham similarly said the school may be liable for the assistant warden’s actions, citing the principle of vicarious liability where the school would be responsible for the conduct of its employee during the course of their employment.
She also stressed that the best interests of the child should always be the “paramount consideration”, especially for child care providers such as a school, adding that the school has a duty to put in place a “child protection policy” to ensure the wellbeing and safety of children under their care.
“As part of this, the school should carry out proper screening and training of their staff on child protection. Also, since the school has prolonged care of children who board there, there should be regular monitoring throughout to ensure the children’s protection at all time,” she said.
Tham said schools must exercise a “higher standard of duty of care” as children are entrusted to them, adding that they should exercise more prudence when hiring staff tasked with looking after children and specifically check if rehabilitated offenders have records of being violent.
Datin PH Wong, project director of Childline Malaysia, said all organisations dealing with children — including schools — must have a “child protection policy” covering matters such as staff recruitment, child interaction and protection measures.
“They need to check the background of people they hire, not just anybody, especially ex-convicts, unless he has been rehabilitated and he’s got a good character reference after rehabilitation,” she told Malay Mail Online.
“If everyone follows the child protection policy, you won’t get this kind of cases,” she said, referring to the fatal abuse case in Johor.
“I’m very angry and just frustrated and tired, every time a child dies, people just make a hoo-ha and it ends,” she added as she noted the lack of effective changes for decades, urging a stop to corporal punishment.
Mohamad Thaqif Amin Mohd Gaddafi, 11, died last Wednesday at a Johor hospital where he had both legs amputated after they became infected, allegedly from beating with a rubber hose on March 24.
The 29-year-old assistant warden was arrested on April 22, with his remand set to end today. He was initially investigated under the Child Act, but the case has since reclassified to murder.