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“The Child Who is Not Embraced by the Village Will Burn it Down to Feel its Warmth” -African Proverb

The importance of careful development in a child’s formative years cannot be denied. It is highly unfortunate, then, that the very learning institutions we send our children to can be hotbeds for bullying, which indubitably arrest a child’s development. The Federal Court’s decision in Ahmad Ikhwan emphasises the importance and extent of a school’s role in preventing bullying, and effectively epitomises the Malaysian legal zeitgeist insofar as bullying is concerned. This article explores the cases leading up to Ahmad Ikhwan, the decision in Ahmad Ikhwan and its ramifications for learning institutions and the future of anti-bullying law in Malaysia.

The lead-up to Ahmad Ikhwan

Three cases, Jumat bin Mahmud, Mohd Raihan Ibrahim and Nurul Atikah Mustafa (all of which were cited in Ahmad Ikhwan), set out the duty of care teachers held in relation their pupils, though none of these cases related to school bullying.

Both Jumat bin Mahmud and Mohd Raihan espouse the same general principle in respect of this duty. This was succinctly stated in Mohd Raihan, as follows:

“A school teacher is …under a duty to exercise supervision over his pupils when they are in the school premises, either in the classroom or the playground. The degree of supervision depends on the circumstances of each case, such as the age of the pupils and what they are doing at the material time. If the teacher knows that the pupils are engaged in doing acts which are likely to cause injuries to one another, the teacher is under a duty to take steps to ensure the safety of the acts. Let us now examine the evidence”.

This principle was applied in Nurul Atikah Mustafa. Furthermore, Nurul Atikah Mustafah firmly established that where a teacher is negligent, their employer can also be liable for their negligence provided that the teacher’s action (or inaction) was within the course of their employment, among others. This is commonly known as “vicarious liability”.

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Ahmad Ikhwan – Duty of Care expanded

The decision of the Federal Court in Ahmad Ikhwan clearly sets out the responsibilities and duties expected of teachers and schools in the context of bullying, applying the principles of Jumat bin Mahmud, Mohd Raihan Ibrahim and Nurul Atikah Mustafa.

The case involved a residential school student who was severely injured after being assaulted by five senior students over several hours. The victim, who experienced significant hearing loss and trauma, sued the perpetrators and school authorities—including the Senior Assistant for Student Affairs, the former principal, the Director General of the Education Ministry, and the Government of Malaysia—for assault and battery.

In the High Court, primarily premised on the decisions in Mohd Raihan and Nurul Atikah, the persons in charge of the school, the Ministry of Education, and the Government of Malaysia (the “school and authorities”) were found liable. The perpetrators of the bullying were also found liable, based on the evidence of the injuries sustained by the plaintiff, as well as their pleas of guilt in the Magistrate’s Court.

This was overturned by the Court of Appeal, which held that which held that the High Court over-relied on the perpetrators’ admissions of guilt without examining if the tort of assault was made out. Furthermore, in respect of the school and authorities, the Court of Appeal found that the bullying was not reasonably foreseeable as it happened in the Bilik Ketua Pengawas (the Superintendent’s Room) – hence, these parties’ appeal against their liability was allowed.

On further appeal to the Federal Court, the Federal Court strongly disagreed with the Court of Appeal, holding that it had fallen into error. The Federal Court held all defendants liable – in respect of the perpetrators, the Federal Court found that the High Court had sufficiently considered factors beyond their admissions of guilt.

In respect of the school and authorities, the Federal Court strongly admonished bullying occurring on school grounds and delineated the wideness of the scope of a school’s duty in respect of bullying awareness and prevention is in this context is. Mary Lim FCJ stated as follows:

“ "Bullying" by whatever name or label and however carried out and by whosoever, unfortunately continues to occur in what is supposed to be our safe havens of education. There is no distinction between residential or any type of school. … 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 revealed in these appeals to remind us of these values.

Since it was reasonably foreseeable that bullying would occur within the premises of the residential school, and the appellant was indeed bullied in that he was assaulted by his fellow students, it is no longer an issue of non-foreseeability. The sixth to the ninth defendants remain accountable for the acts of bullying and physical assault occasioned by the first five defendants as it would appear, not enough was done to prevent the abusive acts from happening.”

What is of fundamental importance here is that despite the fact that the incident of bullying occurred after school hours, the Federal Court still found that the school and authorities ought to have foreseen bullying occurring and taken further steps to present it. Furthermore, there is “no distinction” between residential/boarding schools and normal schools means that all schools must constantly ensure (or at least take steps to ensure) that bullying does not occur on their premises.

The steps schools must take

Schools must adopt a proactive and comprehensive approach to combat bullying. Ahmad Ikhwan underscores that simply reacting to incidents of bullying after they occur is insufficient. Schools need to foster a safe environment for all students, emphasising both prevention and intervention – this can only be achieved through proactive and comprehensive steps. Here are some key steps that schools should take to meet their legal and moral obligations:

Implement Clear Anti-Bullying Policies

Every school should have a well-defined anti-bullying policy, crafted with input from educators, psychologists, and legal professionals. This policy must set out a clear definition of bullying, outline the consequences for perpetrators, and offer a roadmap for responding to incidents. Importantly, the policy must be communicated clearly to students, parents, and staff, ensuring all parties understand their roles and responsibilities in preventing and addressing bullying. This is often best done in consultation with your legal team or external lawyers.

Enhance Teacher Training and Awareness

Teachers and school staff are on the front lines of bullying prevention. Therefore, schools must invest in regular training programs to equip teachers with the tools they need to identify early signs of bullying and intervene effectively. This training should not only cover physical bullying but also address psychological, cyber, and social forms of bullying. Teachers should also be made aware of their legal obligations, as the ruling in Ahmad Ikhwan highlights that their failure to act can result in personal and institutional liability.

Create Safe Reporting Mechanisms

One of the challenges in addressing bullying is the fear of retaliation that often prevents victims or bystanders from reporting incidents. Schools should establish anonymous reporting systems, such as suggestion boxes or online platforms, allowing students to report bullying without fear. Furthermore, schools must ensure that any reports of bullying are taken seriously and investigated promptly, with appropriate actions taken to protect the victim and hold the perpetrator accountable.

Increase Supervision in Vulnerable Areas

The Ahmad Ikhwan case highlights that bullying can occur in secluded areas or outside regular school hours. Schools must identify areas within their premises, such as bathrooms, hallways, or dormitories, where bullying is more likely to occur. Increased supervision, whether through the presence of teachers, prefects, or security personnel, can act as a deterrent to potential bullies. Installing surveillance cameras in key locations may also aid in monitoring these areas.

Incorporate Bullying Prevention into the Curriculum

Schools should consider integrating bullying prevention programs into their curriculum. These programs could take the form of workshops, assemblies, or even regular classroom discussions about empathy, respect, and the impact of bullying. By creating a culture of inclusion and kindness, schools can reduce the likelihood of bullying while promoting positive social behavior among students.

Engage Parents and the Community

Bullying is not just a school issue—it is a societal one. Schools must involve parents and the wider community in their anti-bullying efforts. Regular meetings, seminars, or workshops can educate parents on how to spot signs of bullying at home and how to support their children in such situations. Collaboration with local authorities, mental health professionals, and NGOs can further strengthen the school’s ability to prevent and respond to bullying.

Monitor and Review Anti-Bullying Measures

Finally, it is crucial for schools to periodically review the effectiveness of their anti-bullying policies and procedures. Conducting surveys or focus groups with students and parents can help identify any gaps in the school’s approach. Adjustments should be made as necessary to ensure that the anti-bullying framework remains relevant and effective in creating a safe environment for all students.

By taking these proactive steps, schools not only comply with the legal standards set forth in Ahmad Ikhwan, but they also create a more nurturing and inclusive environment where every child has the opportunity to learn and grow without the fear of bullying. The Federal Court’s decision should serve as a clarion call for schools to intensify their efforts in preventing bullying, thereby safeguarding the welfare of their students.

‍This article was written by Vishnu Vijandran (Partner) and Lam Zi Wei (intern). It only contains general information. It does not constitute legal advice nor an expression of legal opinion and should not be relied upon as such.

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To arrange an appointment with one of our lawyers for a consultation, contact us at info@aqranvijandran.com.