1). How is Sexual Harassment viewed in Malaysia?
In Malaysia, the Federal Constitution recognizes ‘life’ as a value which should be treated with utmost respect. The word ‘life’ in Article 5(1) is not only confined to physical existence. It includes the quality of life, such as one’s dignity and honor as provided in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan. In the context of this provision, sexual harassment violates a person’s honor and dignity by objectifying and degrading them, hence infringing their constitutional and private individual rights.
2. How prevalent is Sexual Harassment in Malaysia?
Under Hofstede’s Power Distance Index — an index developed to measure the distribution of power between individuals in a business, culture, or nation — Malaysia scored highest, topping countries all over the world. This means that Malaysia has the biggest power distance between employees and employers, causing a high level of workplace subservience.
According to a ‘Sexual Harassment in The Workplace’ survey conducted by Speak Up in 2017, most survivors of unwanted sexual conduct do not report their cases due to the ambiguous, or worse, lack of policies to deal with sexual harassment cases in their companies. As a result, survivors become confused as to the procedures of reporting such cases. The problem worsens because the HR Department is not trained to deal with incidences of sexual harassment, consequently feeling justified in ignoring the complaints altogether.
All Women’s Action Society (Awam) said it received 162 complaints of sexual harassment in 2020, which was a 218% increase from 51 cases it had from 2017 to 2019.
3. Is there a law in place to deal with Sexual Harassment in Malaysia?
a). Employment Act, 1955 defines sexual harassment at workplace as “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, arising out of and in the course of his employment.”
In comparison, the Indian Law, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”), provides an exhaustive definition of sexual Harassment. As per the POSH Act, ‘Sexual harassment’ includes unwelcome sexually tinted behavior, whether directly or by implication, such as:
- physical contact and advances,
- demand or request for sexual favors,
- making sexually colored remarks,
- showing pornography, or
- any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature
The POSH Act also considers the following circumstances as amounting to sexual harassment:
- Implied or explicit promise of preferential treatment in employment.
- Implied or explicit threat of detrimental treatment in employment.
- Implied or explicit threat about present or future employment status.
- Interference with work or creating an intimidating or offensive or hostile work environment; or
- Humiliating treatment likely to affect the lady employee’s health or safety.
b). 81A of The Employment (Amendment) Act, 2012 in Malaysia states that complaint of sexual harassment is defined broadly to encompass complaints by:
- an employee against another employee;
- by an employee against any employer; or
- by an employer against an employee
As the mechanism is confined to the employer-employee relationship, sexual harassment complaints by or against an independent contractor is likely to be excluded.
Comparatively, Under the Indian POSH Act, a complaint of sexual harassment can be filed against a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice. Complaints can also be filed against an Employer.
c). 81C provides that after conducting an inquiry, if the employer is satisfied that sexual harassment is proven, disciplinary action may be taken against the wrongdoer, including dismissal or downgrading.
Under the Indian POSH Act, Internal Committee (“IC”) is constituted by every organization (having more than 10 employees) to investigate Sexual Harassment Complaints. After the conclusion of an inquiry, the committee gives its recommendation (which can be range from a written apology, reprimand to suspension or termination). The employer has to implement the recommendations within 60 days.
d). 81F of the Employment Act makes it an offence with a liability of fine not exceeding ten thousand ringgits if any employer fails to inquire into complaints of sexual harassment.
Under the Indian POSH Act, if an employer fails to constitute an IC or take recommended action by IC or fails to prepare and submit an annual report; then the employer shall be punishable with fine which may extend to fifty thousand rupees.
4. How do courts in Malaysia deal with Sexual Harassment cases?
- In the case of Ahmad Ibrahim Dato Seri MohdGhazau v. August land Hotel SdnBhd Award No.: 1460 of 2010; the plaintiff (alleged harasser) was terminated from employment because of his sexual harassment acts towards a female clerk by groping her lips and smacking her backside without consent. The Industrial Court while granting the plaintiff (alleged harasser) compensation in lieu of reinstatement and back-dated wages held that a charge of sexual harassment brings undeserved humiliation and significant harm to the plaintiff’s professional standing as well as to his social and individual reputations if the claim is grounded upon duplicitous allegations.
- In Mohd Nasir Deraman v SistemTelevisyen Malaysia Berhad Award No.: 480 of 2010; the plaintiff (alleged harasser) was an executive broadcast journalist for TV3. He was blamed for sexually harassing a practical trainee of the organization. The survivor asserted that the plaintiff had laid his head on her lap while traveling to Port Dickson to conduct a program. Additionally, he made sucking sounds while looking at her breasts and asked her as to whether he could nibble them. The plaintiff/ alleged harasser contended that he laid his head on the lap of the survivor with the survivor’s consent. He further stated that the sucking sound was from the little gap in the middle of his front teeth and that he did not make such sounds with any sinister motive towards the survivor. As to the expression of the words “biting of breasts,” he said that it was merely a common joke. The Court held that the survivor’s story was more dependable and corroborated by independent evidence and that the plaintiff’s defense is an explicit lie and not satisfactory by any means.
In 2016, in the case of Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor; Asmah alleged that Mohd Ridzwan had sexually harassed her through the use of vulgar and inappropriate speech. She filed a complaint with their employer and a committee was set up to investigate the matter. The committee found that the evidence was not enough to take a disciplinary proceeding, but a solid, authoritative remand was given to Ridzwan, which resulted in non-renewal of his employment. Mohd Ridzwan sued Asmah in court for defamation to which Asmah countersued.
The Federal Court defined sexual harassment as: ‘…unwelcome, taking the form of verbal and even physical, which include sexual innuendos, comments and remarks, suggestive, obscene or insulting sounds, implied sexual threats, leering, ogling, displaying offensive pictures, making obscene gestures etc. These overtures all share similar traits, in that they all have the air of seediness and cause disturbance or annoyance to the survivor (short of a recognized psychiatric illness or physical harm)’. Asmah was awarded with RM100,000 in general damages and RM20,000 in aggravated and exemplary damages.
Comparatively, in India, On Feb 1, 2021; the Delhi Court decided on the defamation case by MJ Akbar against journalist Priya Ramani This case was filed by politician and former Chief Editor MJ Akbar against the #MeToo allegations made against him by Priya Ramani. Priya Ramani in October 2018 had alleged via twitter that the person referred to as a sexual harasser in an article written by her earlier in ‘The Vogue’ was none other than MJ Akbar. In her article, Priya had accused MJ of making her uncomfortable by calling her to interview at 7 pm in his bedroom of a hotel to raise the concern and question of sexual harassment of women in general at workplace. She also accused him of making derogatory comments, obscene phone calls and assault on fresher girls who came to work under him.
The Additional Chief Metropolitan Magistrate, Ravindra Kumar Pandey in an open court delivered the judgment in favor of Priya Ramani stating that the offence has not been proven. He acquitted her and accepted the claim of the journalist that MJ’s “stellar reputation” had already been destroyed by the testimony of Ms. Ghazala Wahab who had also accused MJ of sexual abuse. The Court held that MJ cannot be said to have a stellar reputation as many women even before Priya’s tweet had claimed him as sexual predator. The Court observed that woman has the right to put up her grievance in any platform she wishes to even after decades have passed. A survivor may not speak up for several years due to mental trauma. She cannot be punished for raising her voice against sexual abuse. The Court held that “Right to reputation cannot be protected at the cost of right to dignity “.
Please read the summary of the judgment here.
5. Sexual Harassment Bill
A bill to protect women from sexual harassment was brought up in Malaysia but could not be passed into law since parliament was suspended in January 2021, due to the coronavirus pandemic.
– Vaishali Jain, Advocate & Associate