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After more than a decade since it was first mooted in 2011, the Anti-Sexual Harassment Bill (“the Bill”) was finally passed in the Dewan Rakyat on 20 July 2022, but not without any controversy. Unfortunately, even during the passing of the Bill, the Dewan Rakyat saw an outburst of profanity by a Member of Parliament (“MP”) against other female MPs. Thus, the passing of the Bill is not only timely but it marks an important recognition that Malaysia is progressing to end the normalisation of sexual harassment. It is also believed that just like the increase in police reports by 200% after the Domestic Violence Act 1994 came into force on 1 June 1996, more victims will be forthcoming now that there is a specific legislation in place to protect both women and men from sexual harassment1 .
The Bill defines sexual harassment as:
“any unwanted conduct of a sexual nature, in any form, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is reasonably offensive or humiliating or is a threat to his well-being.”
It must be noted that this definition is similar to the definition of sexual harassment in the Employment Act 1995, save for the addition of the phrase “reasonably” and removal of the phrase “arising out of and in the course of his employment”. On the other hand, sexual harassment under the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace (“Code of Practice”) means:
“Any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment:
Or
Interestingly, whilst the Code of Practice emphasises that what amounts to sexual harassment is based on the perception of the victim, the Bill appears to leave what amounts to “reasonably offensive or humiliating or is a threat to his well-being” to be determined by a tribunal.
It is important to note that the Bill seeks to provide a right of redress for any person who has been sexually harassed, regardless of their gender, the establishment of the Tribunal for Anti-Sexual Harassment (“Tribunal”) and the promotion of awareness of sexual harassment.
The Tribunal established by the Bill shall consist of not less than 12 members who will be appointed by the Minister of Women, Family and Community Development and comprise of2 :
It is suggested by the Ministry’s Deputy Secretary General, Chua Choon Hwa, that the tribunal system is meant to be victim-centric as it provides an easier and safer avenue for victims to hear cases of sexual harassment compared to the more complex and costly court system3 .
The Tribunal shall have jurisdiction to hear and determine any complaint of sexual harassment made by any person4 . However, where a complaint of sexual harassment is lodged by any person to the Tribunal, the issues in such a complaint shall not be the subject of proceedings between the same parties in any court except where5 :
Does this mean that an employee who has lodged a sexual harassment complaint to the Tribunal may not claim for constructive dismissal in the Industrial Court on the grounds, for example, that his / her employer had failed to provide a safe working environment by failing to inquire into the same sexual harassment complaint?
Arguably, the employee may still proceed with his / her case in the Industrial Court despite the same sexual harassment complaint being lodged to the Tribunal. This is because the Industrial Court case would be between the employee and employer, whereas, proceedings before the Tribunal will be between the employee and the perpetrator.
A complaint lodged to the Tribunal is subject to a prescribed fee6 . Upon a complaint being lodged, the Secretary to the Tribunal shall give a written notice to the complainant and alleged perpetrator of the details of the day, time and place of the hearing7 . The hearing shall be before a panel of 3 members8 and will be closed to the public9 . The Bill further provides that no party shall have any legal representation at the hearing10 . Although this saves costs and
may simplify the proceedings, it may be a cause for concern, especially noting that upon conviction, the perpetrator may be liable to a fine or imprisonment.
The Tribunal may also mediate every complaint of sexual harassment within its jurisdiction and with agreement of the parties11 . Where an agreed settlement is achieved between parties, the said settlement shall be recorded and take effect as if it is an award of the Tribunal12 . Before an Award is made by the Tribunal, it has a discretion to refer to a Judge of the High Court a question of law13 :
The Bill provides that the Tribunal shall make its award without delay and where practicable, within 60 days from the first day of the hearing14 . This is to encourage victims to come forward with their complaints as they are assured that they will not be forced to go through a lengthy process. In fact, a survey conducted by the Ministry of Women, Family and Community Development (“the Ministry”) showed that over 80% of the respondents felt confident about reporting cases15 .
An award of the Tribunal is final and binding on parties and deemed to be a court order16, wherein its non-compliance results in a criminal penalty. Similar to an Industrial Court award, the award of the Tribunal shall contain the reasoning for its decision and the finding of facts17 . In making the award, the Tribunal may also make any one or more of the following orders18 :
Any person who fails to comply with an award of the Tribunal within 30 days from the date the award was made commits an offence and shall on conviction, be liable to either19 :
The Bill provides that any party to the proceedings of the Tribunal may, upon notice to the other party, apply to the High Court to challenge an award of the Tribunal on the ground of serious irregularity of the following kinds20 :
This suggests that the mode of challenging an award of the Tribunal is by way of an application for judicial review to the High Court.
Importantly, a complaint of sexual harassment made under this act does not preclude the complainant or any other person from lodging a police report for any offence relating to sexual harassment under any written laws.
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