An unwanted gaze, an unpalatable whistle, an unsolicited remark. These seemingly ‘minor’ annoyances are familiar to a large population of Malaysians and can be much more severe than appearances may imply. Though often going unreported and unnoticed, sexual harassment — the act of conducting oneself in an unwelcome and sexual nature towards another to demean their dignity — is much more prominent than expected.
The prevalence of sexual harassment cases is becoming even more publicly apparent, with 57% of women regularly experiencing verbal harassment simply when walking in the streets of 2021. In the same year, a staggering 71% of women have reportedly had to change their travel routes and routines to avoid sexual harassment, and 57% have experienced unwanted touching.
The workplace seems to be one of the places most affected, with 62% of Malaysian women having experienced sexual harassment whilst working in 2020. Of this 62%, the forms of harassment mainly experienced were insulting jokes of a sexual nature and unwanted touching or grabbing by a coworker, both of which reportedly occurred at a rate of 39% and 24% respectively.
Malaysia’s existing Employment Act 1995 seeks to hinder sexual harassment by defining it as such: “any unwanted conduct of a sexual nature, whether verbal, nonverbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment”. Although the Employment Act’s defintion of sexual harassment comprises the experiences reported by the victims, there is a discrepancy in people’s perceptions of sexual harassment as both sexual innuendos and unwanted touching were not perceived as harassment but rather as unprofessional behaviour by 33% and 15% of women respectively.
Why the bill was proposed
An anti-sexual harassment bill in Malaysia has been fought for by women’s rights activists since the 1990s to tackle the entirety of the experiences of sexual harassment survivors and to ensure that they are legally protected from such perverseness.
With the shocking statistics shown above, the need for a dedicated bill to govern such matters is more pertinent than ever. As of now, sexual harassment laws are set out in other statutes such as the Penal Code and Sexual Offences Against Children Act. However, this is far from enough. Suing their perpetrators is one form of recourse that victims have, although this is a costly and lengthy process that is mentally and financially draining. Online sexual harassment, which is becoming increasingly rife, is also barely addressed in the statutes. Although the Employment Act somewhat criminalises sexual harassment in the workplace, sexual harassment can occur in any public place, such as in schools or on public transport, but there are no laws that explicitly protect people against sexual harassment in these circumstances.
After three decades, the Anti-Sexual Harassment Bill 2021 has finally come into fruition, with the first reading held on December 15, 2021. Second and third readings are scheduled later this year.
Contents of the bill
Firstly, the bill sets out the definition of ‘sexual harassment’, interpreting it to include ‘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’. Essentially, this means that any any kind of unwarranted sexual behaviour that offends, humiliates or threatens a person can be counted as sexual harassment.
The bill mainly establishes new positions and panels, creating an office of the Administrator of Sexual Harassment and implementing an Anti-Sexual Harassment Tribunal.
The Administrator will play an important role in policymaking and handling matters relating to the prevention and awareness of sexual harassment.
As for the Tribunal, it is to contain no less than 12 members, all of whom will be appointed by the Minister of Women, Family and Community Development. Of the Tribunal, five members are required to be well-versed in handling sexual harassment matters, while seven members need to hold or have held office in the Judicial and Legal Service.
This Tribunal will have the power to hear and determine any case of sexual harassment complaint made by any person. In addition to lodging a complaint with the Tribunal, the victim can make a police report, although they will not be allowed to initiate a lawsuit regarding the same matter in court. Each sitting of the Tribunal will be attended by three members, at least one of whom must be female.
The bill grants the Tribunal the powers to make provisional orders, establish its own procedures and summon people to attend before the Tribunal. All of the Tribunal’s hearings will be held in-camera, meaning that the general public will not be allowed to attend. Both the complainant and respondent will not be allowed to get legal representation for the Tribunal hearings, while minors or disabled persons may have their guardian or next friend accompanying them.
It will have to adhere to strict deadlines when hearing cases, having 60 days to either dismiss the complaint or make its award. Awards that the Tribunal can order include making the respondent compensate the complainant financially (the Tribunal can order a payment of up to RM250,000) or issue a statement of apology to the complainant. These orders are enforceable the same way court orders are. After 30 days, should the respondent fail to comply with the order, it constitutes an offence and makes them liable to either a fine of double the financial compensation awarded by the Tribunal, jail of up to two years or both.
The Tribunal’s award may be challenged, but only on the grounds of a ‘serious irregularity’, meaning that the Tribunal did not deal with all the relevant matters, or the award was uncertain or ambiguous. In the event that someone applies to challenge the award, the case will be brought to the High Court.
Addressing the gaps in the bill
Despite the efforts of establishing a bill that would potentially mark a change for sexual harassment victims in Malaysia, several key stakeholders have pointed out the significant legislative gaps that exist in the drafted bill and critical points that fall short in addressing the needs of victims’ rights and wellbeing and creating a comprehensive, victim-centric bill. In light of these gaps, the organizations, comprising of The Joint Action Group for Gender Equality, ENGENDER Consultancy and Young Women Making Change, have called for an urgent review of the anti-sexual harassment bill to take into consideration several amendments as stated below:
- Widening the scope of definition of sexual harassment
The current definition of sexual harassment focuses on individual-specific harassments and fails to take into account other parties. As such, it was recommended that the definition be expanded to ensure that all parties’ wellbeing are protected when a hostile, offensive and intimidating environment is created due to harassment, thereby resulting in both the victim and others present to be legally protected.
- Mandated organizational duty of care
Although the Tribunal was well-received, the primary issue that was pointed out was that sexual harassment does not only occur on an individual basis, so the bill would fail to provide for victims of sexual harassment within organizations. As such, victims within organizations would have to await for sexual harassment to occur before being able to bring their case forward to the Tribunal. With the absence of existing laws and weak provisions to address this issue, it was suggested that the bill be amended to clearly elucidate the organizational duties so that victims would have the option to report harassment at an organizational level rather than to an external tribunal. Moreover, the bill should specify the preventive measures and actions taken by organisations to address sexual harassment within their capabilities, including basic training and a responsive complaint mechanism.
- Provisions to protect against victimization
To ensure that the bill is centered around the wellbeing and rights of victims, it is important to note that many fear reporting sexual harassment due to potential negative consequences as well as retaliation through victimisation, thereby causing underreporting of sexual harassment and re-traumatization. Therefore, it is highly recommended that the bill contain an additional clause that directly prohibits victimization by protecting complainants and creating a safe environment for them to lodge their complaints.
The urgency of reviewing the bill brought about an online campaign, #reviewthebill, to urge that the recommendations proposed in the Joint Action Group for Gender Equality (JAG), ENGENDER Consultancy and Young Women Making Change (YWMC)’s memorandum would be taken into consideration by the parliament prior to future readings. To garner support from citizens, a petition to review the bill was initiated and has since garnered over 3,300 signatures.
Further efforts were made to ensure that this objective would be achieved, as JAG, ENGENDER Consultancy and YWMC met with the Minister of Women, Family & Community Development, YB Datuk Seri Rina Harun on March 14 to discuss the necessity of the bill’s review. It was highlighted how existing parliamentary processes could be leveraged to tackle these concerns, namely the Parliamentary Special Select Committee on Women and Children Affairs and Social Development, that can provide an extensive review, reconsideration and recommendations for the Anti-Sexual Harassment bill before the second reading is conducted.
On March 25, the organizations met with drafters from the Attorney-General’s Chambers for further discussions regarding the bill’s legislative gaps and to provide legal justifications for the amendments put forth in their memorandum. Although there is yet to be a conclusive decision regarding the reviewing of the bill, JAG, ENGENDER Consultancy and YWMC remain hopeful that a consensus can be achieved to realize the implementation of an effective victim-centric anti-sexual harassment legislation in Malaysia.
From now till June 2022, the Ministry of Women, Family and Community Development is collecting the public’s feedback on the Anti-Sexual Harassment Bill. You can contribute your opinions and feedback here.
Written by: Julia Rosalyn and Natalie
Edited by: Jamie