SEPTEMBER 30 — Compulsory primary education in Malaysia is provided by Section 29A of the Education Act 1996 (Act 550). The provision states as follows:

1. The Minister may, by order published in the Gazette, prescribe primary education to be compulsory education.
2. Every parent who is a Malaysian citizen residing in Malaysia shall ensure that if his child has attained the age of six years on the first day of January of the current school year that child is enrolled as a pupil in a primary school in that year and remains a pupil in a primary school for the duration of the compulsory education.
3. The Minister may, if he considers it desirable and in the interest of the pupils or the public to do so, by order published in the Gazette, exempt any pupil or any class of pupils from the requirement to attend compulsory education, either absolutely or subject to such conditions as he may think fit to impose, and may at any time in his discretion revoke the exemption or revoke or alter or add to such conditions.
4. A parent who contravenes subsection (2) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding six months or to both.
5. The Minister may make regulations for the carrying into effect of the provisions of this section.

In exercise of the powers conferred by Section 29A(1) above, the Minister has so prescribed primary education to be compulsory education effective January 1, 2003 vide the Education (Compulsory Education) Order 2002 [PU(A) 459/2002].

By comparison, compulsory primary education in Singapore is provided by a specific legislation, namely the Compulsory Education Act 2000. It is an Act to provide for compulsory primary education in Singapore and for matters connected therewith.

Section 3 of the Act — on compulsory primary education — states as follows:

(1) A child of compulsory school age who is —

• (a) born after 1 January 1996;
• (b) a citizen of Singapore; and
• (c) residing in Singapore,

must attend regularly as a pupil at a national primary school.

(2) If a child of compulsory school age fails to attend regularly as a pupil at a national primary school as required under subsection (1), each parent of the child shall be guilty of an offence.

(3) This section does not apply —

• (a) to a child of compulsory school age for whom a parent presents within a reasonable time a prescribed reason to the Director‑General’s satisfaction for the child’s absence at a national primary school; or
• (b) to a child of compulsory school age who is exempted under section 4.ion 2 of the Act defines primary education as "a course of study at primary level which is designed for a duration of six years but which may be completed within five to seven years”.

Now, let’s take a closer look at Section 29A(2) of the Education Act. It says that every parent —

• who is a Malaysian citizen
• residing in Malaysia

shall ensure that his child —

• is enrolled as a pupil in a primary school; and
• remains a pupil in a primary school for the duration of the compulsory education.

The word "residing” is the present participle of "reside”, which is not defined for the purpose of the Education Act.

Almost a century ago, Lord Chancellor Viscount Cave in Levene v Inland Revenue Comrs [1928] All ER 746 at 749, explained as follows:

"[T]he word "reside” is a familiar English word and is defined in the Oxford English Dictionary as meaning ‘to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place’.

In an even earlier case, Justice Bayley said:

"The word ‘reside’, where there is nothing to show that it is used in a more extensive sense, denotes the place where an individual eats, drinks and sleeps or where his family or his servants eat, drink and sleep.” (JR v North Curry, 4 B & C 959)

So, a natural parent to a child who is left in Malaysia — the parent being a Malaysian citizen residing outside Malaysia — arguably does not commit an offence under Section 29A(4) if his child is not enrolled as a pupil in a primary school in that year and remains a pupil in a primary school for the duration of the compulsory education.

Such a parent to such a child could be one of those parents who has not met the child for a long period of time having left the child at one of the welfare homes allegedly linked to GISB Holdings Sdn Bhd (GISBH) following revelation to the media by Inspector-General of Police Razarudin Husain.

"From our screening, we found that some [children] have been left at these centres while their parents are in Saudi Arabia or Turkey,” Razarudin said, adding that some children have been separated from their parents since the age of two.

It would be interesting who Education Minister Fadhlina Sidek and her ministry’s legal team would find to have contravened Section 29A(2) of the Education Act for charges under Section 29A(4) as Putrajaya mulled action against parents who left their children with GISBH welfare homes.

Section 29A may need to be amended so that it states positively a child’s right to education as recognised by Article 28 of the Convention on the Rights of the Child, of which Malaysia is a party.

Or enact a new legislation on compulsory education.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.