In the 21st century, women's entry into the workforce has been prompted by necessity with many families struggling to make ends meet. In a similar vein, a study by Ipsos in 2018 across 27 countries in collaboration with International Women's Day illustrates that sexual harassment is one of the top three issues faced by women globally. Sexual harassment is defined by the All Women's Action Society (Awam), as “any unwanted or unwelcome conduct that s sexual in nature and may be committed physically, verbally, non-verbally, psychologically and visually”[1].
Recently, an old Health Ministry article titled "The emotional impact on sexual harassment victims" containing misguided advice has been heavily criticised by Hannah Yeoh the Former Deputy Women, Family and Community Development Minister on Twitter. The aforementioned article contains outdated notions regarding the causes of sexual harassment ie “physical attractiveness, unsuitable clothing style, unrestricted social interactions”[2]. Such a victim-blaming article that further suggests women avoid working overtime alone to prevent unwanted attention is clearly nonsensical and unacceptable. The notion of “victim-blaming” can be traced back to the “just-world hypothesis” research conducted by two behavioural scientists Melvin J Lerner and Carolyn H. Simmons. Essentially, it is the belief that the social environment is fair, such that people get what they deserve. Thus, the victim somehow deserves their circumstances.[3] This article aims to address the myth, current law and possible reforms regarding sexual harassment.
Whether the factors mentioned above are the “real causes” of sexual harassment is another topic of discussion. However, many Scholars such as Sufiya Ahmed a writer for the Independent pointed out that there are many instances where Muslim women who cover themselves from head to toe are groped and harassed in public. Similarly, a survey conducted by All Women’s Action Society illustrates that 60% of women who were wearing the hijab or modest wear claimed that they were sexually harassed through verbal channels. Thus, blaming sexual harassment on women’s clothing is only an argument that transfers the responsibility from the perpetrator to the victim. Further, one needs to understand that sexual harassment is a complex and sensitive issue that cannot simply be remedied by the victims themselves or by covering up [4]. It is not the appearance or dressing which causes sexual harassment but the perpetrator’s power.
“A power that stems from male entitlement.”- Sufiya Ahmed
The Current Law
Currently, Sexual Harassment is covered under Part XVA of the Employment Act 1955 which came into force by virtue of the amendment in Employment (Amendment) Act 2012. However, as suggested by the title of this legislation, it is only limited to workplace sexual harassment [5]. Section 81A to 81G emphasises the way to report sexual harassment at the workplace and the mandatory duty imposed on the employer to investigate and conduct an inquiry on sexual harassment complaints. In addition, it also emphasises the appropriate actions to be taken by the employer if sexual harassment is proven [6]. This newly created portion in the Employment Act 1955 is a significant step taken since it imposes procedure and creates avenues to address sexual harassment. However, there still remains a lacuna in this law [7]. The legal rights and remedies of the victims and the liabilities of the perpetrators are not fully addressed in this Act. Such unsatisfactory reliefs might potentially discourage the victims from reporting or lodging complaints since no remedies are provided [8]. Further, it is also difficult to ensure the investigations are conducted by independent and unbiased individuals.
The Malaysian Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace (1999) on the other hand serves as practical guidance on the establishment and implementation of in-house preventative and redress mechanisms at the enterprise level. However, the code remains grossly inadequate due to the fact that it is merely a guideline to Malaysian employers and has no legal force [9]. Thus, employers are not obliged to enforce the Code. However, the lack of comprehensive internal policies in place educating employees might lead to a culture of accepting inappropriate behaviour. Further, oftentimes, not understanding what constitutes “harassment” and making crude jokes without realising it is offensive are the main causes of sexual harassment.
Thus, it is evidence that protections afforded by the Employment Act 1955 and Code of Practice on the Prevention and Eradication of Sexual Harassment are limited. However, recent developments in case law do afford further protection. Before the Federal Court decision of Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282, there has been no reported case in respect of victims claiming civil remedies from an alleged perpetrator for sexual harassment [10]. Suriyadi FCJ who delivered the judgment of the court in the aforementioned case concluded that it is time to exercise some judicial activism and accepted that the tort of sexual harassment is a valid cause of action [11]. In addition, the Federal Court also confirmed that although women are the primary victims and men are often the perpetrators, men can be sexually harassed as well.
Despite such development, we need to understand that sexual harassment could occur anywhere such as school, public place or even “home”. From a criminal law perspective, several forms of sexual harassment are criminalized under the Penal Code despite its limitation. Provisions that are relevant include Molestation (s354PC), Assault or use of criminal force with intent to dishonour a person, Outrages on decency (s377PC) and Word or gesture intended to insult the modesty of any person (s509PC). However, as pointed out by lawyers, seeking justice through criminal law has an immediate obstacle, which is meeting the standard of proof. As sexual harassment often occurs in private space, it would end up being a matter of “he-say, she-say with no corroboration by any witness.”[12]
Taking Action: A Way Forward
Thus, it is clear that our laws are scattered and there is a lack of specific provisions which outlaw sexual harassment. To effectively stamp out sexual harassment, reforms and measures should be taken by Legislature and Employers. According to the Women, Family and Community Development Ministry (KPWKM), the Sexual Harassment Bill proposed by the previous Pakatan Harapan Government, will provide a comprehensive definition of sexual harassment, introduce an effective complaint and redress mechanism as well as reforming punishment and penalties for sexual assaulters and predators.[13] Although Datuk Seri Rina Harun announced that the Sexual Harassment Bill will be tabled in Parliament in 2020. It is clear that it would not be able to pass into law currently due to the Declaration of Emergency and COVID-19 pandemic [14]. Of course, whether the declaration of emergency was warranted is a discussion for another day. However, what is clear is that the Sexual Harassment Act is urgently needed to address inequalities experienced by the survivor of sexual harassment.
For specific measure in regards to sexual harassment in the legal profession, a survey conducted by the International Bar Association (IBA) in 2019 reveals that only 17% of respondents indicate that their workplace has existing policies addressing sexual harassment matters. Although the Bar Council had issued a Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace in 2007, the adoption of an anti-harassment policy is optional and has no force of law [15]. Thus, a statutory, mandatory and well-structured in-house mechanism should be imposed as suggested by AWL vice president Meera Samanther [16]. This will also go in line with the protection afforded by the Sexual Harassment Bill.
Our Role
The learned author Ashgar Ali in his book "Dismissal from Employment and the Remedies" highlighted that many sexual harassment cases go unreported with the victim suffering in silence.[17] This is because of the fear of repercussions, the fear of being ostracised, mocked or of being judged.[18] However, we need to remember remaining silent in the face of injustice will only perpetuate more injustice. So, don’t stay silent and speak up!
If you are a victim of sexual harassment, these are the few steps you may take:
You may complain about such an issue to your employer.
If your employer refuses to inquire further into your complaint or you are dissatisfied with the result, you may refer the matter to the Director-General of Labour(‘DGL’) who may then direct the employer to conduct an inquiry if he thinks that the matter should be pursued.
Alternatively, a complainant of sexual harassment may lodge a complaint directly to the DGL. [19]
Conclusion
Thus, reforms need to be taken and there is an urgent need to eradicate the victim-blaming culture that is prevalent in the current society. All parties, especially governmental bodies need to understand the dangers of spreading misleading information and narratives and play their part in making Malaysia a safer place for all of us. As pointed out by the Federal Court Judge Suriyadi: “Sexual harassment is very serious misconduct and in whatever form it takes, cannot be tolerated by anyone. In whatever form it comes, it lowers the dignity and respect of the person who is harassed, let alone affecting his or her mental and emotional wellbeing. Perpetrators who go unpunished, will continue intimidating, humiliating and traumatising the victims.” [20]
Disclaimer: The views expressed in this article belong solely to the author and do not reflect the views of Taylor's Education Group. Additionally, this article is for informational purposes only. Please exercise your discretion before making any judgements.
References:
[1]Anastasha Abraham & Natasha Franklin, ‘Sexual Harrasment’ (Awam) < https://www.awam .org. my/sexual-harassment/> accessed 2 June 2021
[2]Jo Timbuong,’ Misguided Health Ministry article on sexual harassment comes under fire’ (The Star, 12 April 2021) <https://www.thestar.com.my/news/nation/2021/04/12/misguided-health- ministry-article-on-sexual-harassment-comes-under-fire > accessed 2 June 2021
[3]Melvin J Lerner and Carolyn H. Simmons, ‘Observer’s Reaction To The “Innocent Victim”: Compassion or Rejection’ (1966) 4 Journal of Personality and Social Psychology 203
[4] Awam, ‘Dress code or sexual harassment code? Open letter to MPPUUM’ ( Malaysia Kini, 20 June 2019) <https://www.malaysiakini.com/letters/480412> accessed 2 June 2021.
[5] Anastasha Abraham & Natasha Franklin, ‘Sexual Harassment (Awam) < https://www.aw am.org.my/sexual-harassment/> accessed 2 June 2021
[6] ‘Laws Related to Sexual Harassment’ (WCC) < https://www.wccpenang.org/sexu al-harassment-laws-in-malaysia/> accessed 2 June 2021
[7]Allison Ong, ‘Sexual Harassment' (Azman Davidson & Co) <https://azmandavidson.co m.my/sexual-harassment/> accessed 2 June 2021
[8] Ooi Bee Hong, Louis Liaw and Shera Chuah, ‘Sexual Harassment in the Workplace: The Past, Present and Future’ (Rosli Dahlan Saravana Partnership, 6 October 2020) < https://rdslawpartners.com/wp-content /uploads/2021/01/6.10.2020-Legal-Focus-Corp orate.pdf> accessed 2 June 2021
[9] Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282 at [18]
[10] Ibid at [47].
[11] Ibid at [39].
[12] Ooi Bee Hong, Louis Liaw and Shera Chuah, ‘Sexual Harassment in the Workplace: The Past, Present and Future’ (Rosli Dahlan Saravana Partnership, 6 October 2020) < https://rdslawpartners.com/wp-content /uploads/2021/01/6.10.2020-Legal-Focus-Corporate.p df> accessed 2 June 2021.
[13]Kirat Kaur, ‘ These Proposed Laws & Policies Are In Jeopardy Now That Cabinet Has Been Dissolved’ ( The Rakyat Post, 25 February 2020) <https://www.therakyatpost.com/2020/02/25/these-proposed-laws-policie s-are-in-jeopardy-now-that-cabinet-has-been-dissolved/ > accessed 2 June 2021
[14] ‘Hoping for a comprehensive Sexual Harassment Bill’ (New Straits Times, 3 July 2020) < https://www.nst.com.my/opinion/letters/2020/07/605737/hoping-%20comprehensive-sexual-harassment-bill > accessed 2 June 2021
[15] Dina Murad, ‘Monsters in Law’ ( The Star, 19 January 2020) < https://www.thestar.com.my/new s/focus/2020/01/19/feature-monsters-in-law> accessed 2 June 2021
[16]Ming Teoh, ‘ Women lawyers stand against sexual harassment in the legal profession ‘ (The Star, 17 June 2020) < https://www.thestar.com.my/lifestyle/family/2020/06/17/women-lawye rs- stand-against-sexual-harassment-in-the-legal-profession > accessed 2 June 2021
[17] Harry Wong Wei Chen v Petroliam Nasional Bhd (Petronas) [2021] ILJU 2 at [118]
[18] Dina Murad, ‘Monsters in Law’ (The Star, 19 January 2020) < https://www.thestar.com.my/new s/focus/2020/01/19/feature-monsters-in-law> accessed 2 June 2021
[19] Chia Swee Yik, ‘Harassment Law at Private Employment in Malaysia’ (Chia, Lee & Associates) <https://chialee.com.my/sexual-harassment-law-at-private-employment-in-malaysia/> accessed 2 June 2021
[20]Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282 at [80]