The Anti-Sexual Harassment Tribunal: A more conducive avenue for victims?

Background

Based on latest news reports involving sexual harassment, it is perceived that victims of sexual harassment are now more likely to speak out against or reveal such acts, instead of cowering with fear from being shunned or undergoing self-blame. The advent of social media has emboldened victims who are outraged by unwanted acts of harassment to speak out or post publicly condemning the unwanted acts.

Calls for a standalone sexual harassment law in Malaysia are not something new, with calls made by non-governmental organizations such as the Women’s Aid Organization (WAO) and the All Women’s Action Society (AWAM) since 2019. The need for legislation to combat sexual harassment in Malaysia has been reinforced by the ripples from the #metoo movement arising from the Harvey Weinstein scandal, and by sexual harassment scandals which have appalled the Malaysian public in recent years. These cases include acts of harassment committed against students, celebrities, public figures, and sportspersons.

The Anti-Sexual Harassment Bill 2021 was tabled for first reading in Parliament on 15th December 2021 followed by second reading on 19th July 2022. The Bill was passed on 20th July 2022 and has received royal assent from the Yang di-Pertuan Agong, Sultan Abdullah Sultan Ahmad Shah. The Bill is expected to be gazetted imminently.

Prosecution towards the acts of sexual harassment

Until the Anti-Sexual Harassment Bill 2021, sexual harassment offences by themselves were not recognized as a crime. Nonetheless, there existed other laws that deal with acts of sexual harassment or similar acts. For example, Sections 354, 355, 377D, and 509 of the Penal Code outline the punishment for assault or the use of criminal force with intent to outrage modesty, assault or criminal force with intent to dishonour a person, outrages to modesty, and word or gesture intended to insult the modesty of another person, respectively. But in Malaysia, the burden of proof for criminal cases is the test of beyond a reasonable doubt, which is a very high burden of proof, so it is certainly difficult to prove that the offending act occurred because there are usually no witnesses available or willing to testify in sexual harassment cases. Moreover, most victims do not wish to undergo the complex court process, which may be tedious and time-consuming, not to mention the legal fees which may be incurred.

On the employment sphere, under the Employment Act 1955, Section 2 of the Employment Act 1955, read together with part XVA, defines sexual harassment as any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being. However, the application is limited to acts arising out of and in the course of employment, i.e. harassment conduct which occurs only in the workplace. In most cases, an inquiry would have to be conducted by the employer, and the most likely outcome, if the perpetrator is found guilty, would only be the dismissal of the perpetrator.

The anti-sexual harassment bill

The Bill has defined the offending act as an unwanted conduct of 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 wellbeing. The Bill replicates the definition of sexual harassment as the Employment Act (save for the addition of the words "reasonably offensive"). However, the major differences between the two are (a) its application which is not limited to "the course of employment" (b) the remedies it offers and (c ) the mode of the proceedings

Establishment of the Anti-Sexual Harassment Tribunal

As of the writing of this article, the Anti-Sexual Harassment Bill 2021 (the "Bill") has received the Royal Assent but has yet to be gazetted pursuant to Article 66(5) of the Federal Constitution.

The Bill establishes a quasi-judicial body known as the Anti-Sexual Harassment Tribunal, which offers victims a speedier avenue to adjudicate claims of sexual harassment. Under Section 14 of the Bill, the tribunal will conduct sexual harassment hearings behind closed doors. This should ensure that the identities of both the victim or alleged perpetrator are kept confidential, and it is hoped that this method of hearing would relieve some trauma and fear onto the victim.

Section 19(1) of the Bill states that the tribunal shall make its award without delay and within 60 days from the first day of hearing before the tribunal commences. Section 19(2) of the Bill requires the Tribunal to provide written reasons for its award or dismissal of the complaint, as well as its findings of facts. Under Section 12 of the Bill, the tribunal shall consist of a three-member panel, at least one of whom shall be a woman, and panel members shall have knowledge or practical experience in matters relating to sexual harassment.

Most importantly, Section 9(5) of the Bill seeks to provide that the Tribunal shall determine the complaint of sexual harassment based on the civil standard of proof, i.e. a balance of probabilities. This would put the complainant in a more favourable position to prove that an offence is committed. Although legal representation is by default not allowed for the parties, legal representation can be allowed if it involves complex matters of law.

Section 20 of the Bill states that, when making an award, which is deemed to be an order of a Court, the Tribunal may give one or more of the following orders:

1. an order for the respondent to issue a statement of apology to the complainant as specified in the order;

2. If the complaint relates to any act of sexual harassment which was carried out in public, an order for the respondent to publish a statement of apology to the complainant in any manner as specified in the order;

3. an order for the respondent to pay any compensation or damages not exceeding two hundred and fifty thousand ringgit for any loss or damage suffered by the complainant in respect of the act of sexual harassment; or

4. an order for the parties to attend any programme as the Tribunal thinks necessary.

Section 21 of the Bill states that any person who fails to comply with an award within 30 days from the date of award will be punished with a fine equal to twice the total amount of damages, or imprisonment for a term not exceeding 2 years, or both.

Observation

The passing of the Bill has been lauded, but the NGOs are calling for it to be effectively implemented. Measures must be taken to ensure that the victims are fully protected. Although the tribunal appears to provide a faster way of dealing with sexual harassment complaints, the alleged victim may still find themselves facing the perpetrator in a tribunal hearing, which could represent a daunting situation for the victim, especially in serious cases. However, the saving grace would be that the hearing would be conducted in private instead of being heard in public, therefore it is hoped that this would reduce the impact of fear and trauma on the victim instead of having to run the risk of the victim being judged by the court of public opinion.

Nonetheless, the passing of the Bill may not be a sufficient deterrent to offenders because it is arguable that the Bill does not initially appear to be penal in nature. The jail term which may be imposed would only be applicable if the offender fails to comply with the orders of the Tribunal for an apology, compensation or attending to rehabilitation programs. It is observed that the punishment of apology or compensation may not be a just outcome in serious cases, such as where the perpetrator has stalked and terrorized the victim. However, in criminalizing sexual harassment offence, the bill would need to set out clear boundaries as to what the specific acts would amount to sexual harassment.

In 2016, the Federal Court case of Mohd Ridzwan Bin Abdul Razak v. Asmah bt Hj Mohd Nor [2016] 4 MLJ 282 ruled that the victim of sexual harassment may commence a tortious claim in the Civil Court. With the passing of the anti-sexual harassment Bill, the victim may now instead of commencing a tortious claim in Court proceed with lodgment of a complaint in the tribunal. The tribunal offers the victim an accessible means of bringing up their complaints without having to incur excessive legal fees, since the parties are not allowed to be legally represented unless it involves complex issues of law.