By Richard Wee, Fatin Ismail, Faith Chow & Yashila Kesavan
Introduction
The much-awaited Anti-Sexual Harassment Bill 2021 (“the Bill”) was passed on 20 July 2022 by the Dewan Rakyat with three main goals in mind; to provide a a right of redress to a person sexually harassed (“complainant”), to establish a Tribunal and to promote public awareness on the issue.
Scope of Sexual Harassment
The scope of sexual harassment is wide 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.’
The Bill protects both men and women from various forms of harassment. Nevertheless, the Bill is prospective and only covers ‘acts’ committed after the date of coming into force of the Bill.
Establishment of a Tribunal
A new ‘Tribunal for Anti-Sexual Harassment’ is established consisting of members of the Judicial and Legal Services, solicitors and advocates, as well as persons with knowledge or practical experience in matters relating to sexual harassment.
Members of the Tribunal sit for a term of three years and are appointed by the Minister of Women, Family and Community Development (“Minister”).
Thus, a typical case will be heard by three members, one of whom must be a woman. To protect individuals’ identities, all proceedings are closed to the public.
Lodging a Complaint
Any person can lodge a complaint to the Tribunal in the prescribed form with a payment of fees.
Thereafter, notice will be given to the alleged harasser to attend proceedings at a specified date, time and place. If the harasser chooses to be absent, the proceedings may continue without them. Meanwhile, minors can be represented by their legal guardian or next friend (a competent adult).
When a complaint is filed to the Tribunal, the matter cannot be brought to the Court unless the court proceedings had commenced earlier, or if it involves a criminal offence or if the complaint had been withdrawn from the Tribunal or struck out.
Nonetheless, a complainant can still make a police report if it involves criminal offences under other laws.
Right to Lawyer
A complainant may be represented by an advocate or solicitor if the Tribunal believes there are complex issues of law involved. The Tribunal would then have to allow the other party to be equally represented.
Awards by the Tribunal
Awards are granted faster than a court whereby it shall be made without delay and where practicable within 60 days. The standard of decision-making is on a balance of probabilities.
Orders given by the Tribunal are final and binding, taking effect as if it is an order from the Court. Only on exceptional grounds of irregularity, can a person challenge the decision to the High Court.
Penalties
Tribunal may order the following:
- a statement of apology from the harasser to be served to the complainant personally or to the public; and/or
- order for compensation and damages of up to RM250,000 on account of a complainant’s suffering; and/or
- order attendance to any programme.
Should the harasser fail to comply with the order within 30 days, a further punishment of a fine double the amount of compensation or a fine of up to RM10,000 (depending on the original order) and up to two years imprisonment may be imposed
If a harasser continues to commit the offence, a fine of RM1,000 is imposed each day of the continuing offence.
Negotiations for Settlement
Should parties choose to negotiate a settlement, the Tribunal may also approve such settlements provided it is appropriate and taking into account the abilities of parties to negotiate in a fair position.
Rules and Regulations
The Minister shall publish in writing rules and regulations relating to procedure, forms, fees, interlocutory orders, evidence, summons, etc.
Promotion of Awareness
An Administrator shall formulate policies and guidelines and promote activities including requesting any person to put up notices raising awareness of sexual harassment to be displayed at any place.
Conclusion
Despite its shortcomings, the Anti-Sexual Harassment Bill, in hindsight, it is a welcome legislative step in creating a safer community for all in spite of several legal gaps whom activist hope could be improved upon over time.
Published on 19 August 2022
PHOTO BY Dane Deaner ON UNSPLASH