Anti-Sexual Harassment Act 2021 : First comments
Berthold Wollte, Der lästige Kavalier (“The Annoying Gentleman”) (1874)
The Anti-Sexual Harassment Act (at the time of this writing it is still called the Anti-Sexual Harassment Bill 2021, but I will refer to it as the “ASHA 2021”) is noteworthy for being the first stand-alone Malaysian legislation that specifically addresses sexual harassment.
This follows some 10 years of legislative drafting and consultation among the relevant stakeholders, and around 30 years of activism by civil society lead by women’s groups.
These are my preliminary observations about the Bill from a legal standpoint.
What is Sexual Harassment?
ASHA 2021 defines sexual harassment as :
“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,” or
“apa-apa kelakuan tidak diingini yang bersifat seksual, dalam apa-apa bentuk, sama ada secara lisan, bukan lisan, visual, isyarat atau fizikal, yang ditujukan kepada seseorang yang secara munasabahnya menyinggung atau menghina atau merupakan suatu ancaman kepada kesejahteraannya”.
For all practical purposes, the mechanics of ASHA 2021 makes this definition the entire axis for consideration by the Tribunal for Anti-Sexual Harassment, discussed below. Meaning that everything we need to know about what constitutes sexual harassment under ASHA 2021 is contained in the above paragraph only.
Enactment and implementation of ASHA 2021
Having been passed by the Dewan Rakyat on 20 July 2022 and the Dewan Negara on 11 August 2022. Upon assent by the Yang Di-Pertuan Agong it shall be enacted as the Anti-Sexual Harassment Act 2021.
The Minister, YB Datuk Rina Harun announced that the 27 provisions of ASHA 2021 shall be implemented in stages, beginning with the provisions concerning spreading awareness, by way of roadshows and the attendant publicity.
The Tribunal for Anti-Sexual Harassment will be established throughout the country, beginning with Klang Valley.
[source : https://www.bernama.com/bm/am/news.php?id=2110050]
What are the most important things about ASHA 2021?
In my opinion, these are the real highlights of the new law:
1. Direct access : For the first time, persons who complain about sexual harassment have direct access to a government body that will directly decide on the matter and also empowered to issue orders against the offender to set things right. There is no intermediary (e.g. police, social welfare department “JKM”, civil court procedures, public prosecutor).
2. The Tribunal for Anti-Sexual Harassment : To hear and determine complaints of sexual harassment without limitation to context. It seems to cover anything from neighbourhood harassment, online harassment, and even the workplace, notwithstanding some overlap with existing employment law provisions.
3. The Administrator of Anti-Sexual Harassment : Entrusted to be in charge of the administration of ASHA 2021 as a whole and leading policy for dissemination and implementation at all levels of Malaysian society.
There are other aspects, but to me these 3 are the most important.
How does a victim of sexual harassment file a case under ASHA 2021?
Fill the form and lodge a complaint with the Tribunal for Anti-Sexual Harassment.
The Complianant needs to pay a fee to the Tribunal.
ASHA 2021 does not seem to require that the Complainant must be the victim. The words of the law are open ended, suggesting a Complainant can include a parent, confidant, spouse, counsellor, or JKM officer.
[I wonder what happens if multiple reports are lodged by different complainants, for example the victim lodged a rather toned down complaint (perhaps for tactical or other reasons), then the parent of the victim lodges the full story complaint with all the details. What if the perpetrator lodges the complaint first?]
What happens after a Complaint is lodged?
The Tribunal will issue a Notice to the Complainant and the Respondent, and fix a date for hearing of the complaint.
No lawyers are allowed to represent the Complainant and the Respondent. But lawyers may accompany the parties and advise them outside. There would be exceptions, for example if the Respondent is a company. Whilst we would not expect a company to be able to perform physical sexual harassment upon a victim, there could be other forms of conduct, direct and indirect, that may amount to sexual harassment as legally defined.
Proceedings are closed, thus no members of the public are permitted to view or attend the hearing. This is comparable to proceedings involving children under the Child Act 2001 or Sexual Offence Against Children Act 2017.
The Tribunal decides on relevancy, admissibility and weight attached to “evidence”. Like other tribunals (e.g. Industrial Court, Consumer Tribunal, Tribunal Koperasi, etc.), the Evidence Act 1950 and its rules do not apply, however the Tribunal being a body that performs judicial functions, would be expected to apply established principles to satisfy itself of the existence or non-existence of sexual harassment, and such principles would likely resemble the rules o the Evidence Act 1950, though loosely with less formalities and stringencies.
What happens at the end of a hearing by the Tribunal?
At the end of the hearing, the Tribunal shall decide whether there is sexual harassment. ASHA 2021 does not state what are the goalposts and parameters of determining who wins. It just has a definition for sexual harassment. For example, for criminal matters, the goalpost is the charge and the parameters are the ingredients of the charge proved at a standard of beyond a reasonable doubt. For civil matters, the goalpost is to establish a valid cause of action on a balance of probabilities. An Industrial Court is mandated to determine whether dismissal was unlawful or whether there was constructive dismissal, for example, subject to a plethora of principles and tests.
Thus the mandate or parameters of the Tribunal are unclear, and it is hoped that the Minister will issue Regulations, Rules or other official guidelines (gazetted please) for the benefit of all parties.
In my view, without more than the Act itself, we can surmise that the parameters is contained in the definition of “sexual harassment” itself. By comparison, many courts were ready to convict and sentence accused persons to death for conduct that amounted to drug trafficking by definition, under Section 2 of the Dangerous Drugs Act 1952.
What can a Complainant get out of the Tribunal?
The Tribunal has the power to issue an Award, which for all intents and purposes has the standing of a court order.
(1) Order the Respondent to apologise to the Complainant.
(2) Order the Respondent to publish an apology, particularly where the sexual harassment was conducted in public.
(3) Order the Respondent to pay compensation of up to RM250,000.
(4) Order the parties to attend a programme.
(5) (my paraphrase) any other ancillary order to give effect to the above.
These powers are impressive for a tribunal-type body. The amount RM250,000 is more than double the ceiling of a Magistrate Court for a typical civil claim. Curious, what are the parameters that the Tribunal shall consider when making such monetary award under the Act? I would expect the Regulations or Rules made thereunder shall provide enough guidance and limits.
By comparison:
Civil courts are guided by a Compendium for personal injury claims and other precedents. Even loss of limb or an eye or even death is awarded a lower amount than the above prescribed RM250,000. The money is on loss of earnings among other things.
A Syariah Court in shariah criminal matters is limited by the oft-said “3-5-6”, meaning 3 years’ jail, RM5,000 fine or 6 strokes of the rotten.
A Criminal Court could hand down a monstrous fine for big commercial crimes cases, especially where a multiplier is involved ,for example, 5 times the amount of gratification in corruption matters. There are multipliers for securities offences, money laundering offences and the like.
For powers of such magnitude, and where the stringencies of evidence and proof are not as tightly regulated as the criminal or civil courts, I really hope there would be meaningful, clear guidelines to ensure things are reasonable and on track as intended by the lawmakers.
How long does the entire process take?
“Section 19. (1) The Tribunal shall make its award without delay and, where practicable, within sixty days from the first day the hearing before the Tribunal commences.”
This is impressive, it beats a criminal court:
Section 172B (4) of the Criminal Procedure Code provides:
“(4) The trial shall commence not later than ninety days from the date of the accused being charged.”
The Tribunal shall make its award, meaning the entire case is over, within 60 days. But a criminal trial only starts within 90 days. And we all know this is only directory and not mandatory. In my experience, contested criminal trials in any court take anywhere from 6 to 24 months. Commercial crimes cases tend to take longer. High Court cases do not take long, but become prolonged due to the administrative processes prior to commencement of the trial (laporan kimia at Magistrate Court before transfer to High Court, registering the case at High Court can take a week, case managements, etc).
In the workplace context, the speed of a sexual harassment complaint (within the framework of a company’s guidelines) depends on the internal framework of that company. I do not know whether ASHA 2021 overrides such guidelines, but the language seems strong enough.
Moving further, the legal processes from the Industrial Relations Office to the Industrial Court are 2 different tiers with different processes. All this takes time, though it is supposed to be cheaper and more pro-employee compared to a civil court’s litigation process.
The Tribunal procedure cuts through all that, cuts short the time and the intermediaries.
How are Tribunal Awards enforced? Can the Respondent ignore an Award?
An award is deemed a court order and it is enforced by a party to the Tribunal proceedings.
“Section 22. (2): (…) , the Secretary to the Tribunal shall send a copy of the award made by the Tribunal to the court having jurisdiction in the place to which the award relates or in the place where the award was made and the court shall cause the copy of the award to be recorded.”
The deadline for Respondent to comply (apologise, publish an apology, pay up to RM250,000 or some other order) is 30 days from the date of the Award.
If the Respondent fails to perform what was ordered under the Award, it amounts to a criminal offence. This means that, presumably following some form of investigation by the police, the Public Prosecutor can order the Respondent to be charged.
The punishment for failing to comply with the Award is up to 2 years’ jail or a fine of double the amount of compensation ordered to be paid, or both. If the Award is not monetary, there is a minimum penalty of RM10,000 on top of the imprisonment of 2 years’ jail.
Respondents should comply immediately because if they delay, they have to pay up to RM1,000 fine per day that they delay.
“Section 21 (2): In the case of a continuing offence, the person shall, in addition to the penalties specified under subsection (1), be liable to a fine not exceeding one thousand ringgit for each day or part of a day during which the offence continues after the conviction.”
This is also impressive and the penalty and procedure exceeds what a plaintif can hope for in a civil court or a shariah court. The procedure to enforce an order of the civil court is quite a hassle and may involve multiple types of enforcement processes, time and costs to recover the amount — garnishee proceedings, WSS, writ of possession, etc. Likewise the muscle of the shariah court is the committal proceedings, which theoretically resembles contempt proceedings. In theory. But not so ASHA 2021 — if a Respondent fails to apologise, pay or perform whatever the Award requires, they can be charged and faces jail.
Cross referring to the Schedule at the back of the Criminal Procedure Code, I take it that the police still need a warrant to arrest a recalcitrant Respondent.
Who is Involved in the Anti-Sexual Harassment Mechanism?
a. Party : means a complainant or a respondent. What if a Complainant was not a victim, does it mean the victim is not a party?
b. Complainant : “a person who commences a proceeding before the Tribunal to have a matter dealt with by the Tribunal”.
c. Respondent : “a person against whom a proceeding is commenced by the complainant.
d. Tribunal for Anti-Sexual Harassment : This functions like a court presided by qualified members appointed by the Minister. The members function similarly to judges and even jurors to an extent.
e. Civil Court, Public Prosecutor and Police : These other entities are still needed to give effect to the functioning of ASHA 2021.
f. Public and private sectors, entire spectrum of society : All are needed to promote the concept of a safe place where people of all types can live, work and learn without fear of harassment, especially sexual harassment. I believe a lot of inappropriate behaviour goes against our religious and cultural values, such messaging should be conveyed in the most effective manner.
The Tribunal for Anti-Sexual Harassment
a. The President and Deputy President are appointed from the Judicial and Legal Service. So they may be Sessions Court Judges, Registrars, Deputy Public Prosecutors, Federal Counsel or other Legal Officers within the said Service.
b. Not less than five persons who are a mix of current (or former) members of the Judicial & Legal Service or lawyers with no less than 7 years’ standing.
c. Not less than five persons who have expertise in matters relating to sexual harassment. The Minister decides who these person are. Presumably they may be academicians, social workers, activists, politicians, perhaps experts from the police force and other agencies.
There does not seem to be a limit on the total number of members of the Tribunal. The above are minimums. Due to the great power of the Tribunal, some of which exceed a Magistrate Court or often even a Syariah Court, it is good that ASHA 2021 requires some of the members to comprise legal professionals. Ideally, the composition is such that would contribute actual expertise and experience, importantly the sensitivity of the subject matter, the position of victims in a socio-cultural context. Diversity is key but it has to be meaningful diversity and not merely political appointees filling the role of “United Colors of Bennetton”. Membership from the legal professionals would bring the legal discipline and appreciation for due process and natural justice, however the Minister should ensure that the legal professionals all of them have trial experience with sexual matters (even some experience is better than none). I would like to see a fair representation of men and women, diversity from various backgrounds. We don’t want social warriors with predilection to crucify every respondent, nor do we want any insensitive types who accept or normalise inappropriate behavior.
Other observations
For the time being, I have not touched on other issues. Just a quick run through some of them:
(a) Challenging a decision of the Tribunal. This is not allowed because the decision is final. A party can take up the matter with the High Court, but it has to be a serious irregularity. This seems to rule out merits and resembles the structure of other tribunals and its relationship in a judicial review context (which arguably is wider than what ASHA 2021 provides). I want to ask the lawmakers this : What if it is the victim who lost the case? Why do you make redress so accessible up to the Tribunal but so difficult after that? These are the parameters for a “serious irregularity”:
Section 23. (3): For the purposes of this section, “serious irregularity” means an irregularity of one or more of the following kinds which the High Court considers has caused substantial injustice to the applicant:
(a) failure of the Tribunal to deal with all the relevant issues that were put to it; or
(b) uncertainty or ambiguity as to the effect of the award.
(b) Parallel proceedings and ouster of jurisdiction. If a complaint is filed to the Tribunal, neither party may sue each other in any court touching on the issue of that same allegation of sexual harassment complained. Thus if the Tribunal proceedings are underway, no one may sue the other in a Syariah Court, in the Industrial Court, or in a Civil Court on a cause of action arising from sexual harassment (which are manifested differently in the 3 court systems). But this ouster does not affect cases that are already ongoing. So are complaints rejected or stayed if there already is an ongoing matter involving sexual harassment in another court? By comparison, the Court will reject anyone from applying for a Letter of Administration over the property of a deceased, where such Letter was already earlier issued over the same property, even to a different applicant.
Section 8 of ASHA 2021 provides that the substance of the complaint of sexual harassment “shall not be the subject of proceedings between the same parties”.
But this does not apply to criminal proceedings. Section 27, the last provision of ASHA 2021, provides that a Complainant is not precluded from lodging a police report in relation to the sexual harassment. I wonder what is the purpose of that provision. I wonder how fair a hearing it would be where the Respondent shows up at the Tribunal, barefoot in handcuffs and remand clothes. Criminal trials are open but proceedings under ASHA 2021 are not, so what about the sensitivity and privacy of the victim in such scenarios? What if either party, who are frustrated how things are going in the Tribunal proceedings, decide to up the ante and lodge a police report? What is keeping the police out? I hope the police and AG’s Chambers issue directives to ensure their actions do not frustrate the work of the Tribunal. Protection Orders issued under the Domestic Violence Act 1994 have the effect of denying the recipient access to their children if the children are named in the Protection Order — this itself renders nugatory any ongoing custody proceedings in a civil / shariah court. The ease to which a Protection Order can be obtained (in those cases I handled, it is virtually a mechanical, auto rubber stamp by the local Magistrate Court) makes it a tactical trump card against the family / shariah court that takes a longer time and stricter processes to make custody orders.
This leads to my next observation:
(c) Nothing really punitive in ASHA 2021. As a colleague activist from Setiawangsa pointed out to me, ASHA 2021 does not really provide the Tribunal with power to really teach the Respondent a lesson. Sometimes the Complainant does not want monetary compensation nor an apology, they just want justice. I agree. There is no clear provision that criminalises sexual harassment or prohibit it. ASHA 2021 seems to be a facilitative sort of law. By comparison, the Child Act 2001, Sexual Offences Against Children Act 2017 are laws that are both facilitative and punitive. So the argument that acts amounting to sexual harassment has been covered by the Penal Code and other laws, does not hold water. How did the lawmakers miss that?
(d) Explanatory Statements. I do not have drafting training, apart from my 2 week stint at the Law Revision and Law Reform Division before I was appointed a Deputy Public Prosecutor. I assumed that Explanatory Statements are intended to represent, in a compact form, the intention of the lawmaker. The Explanatory Statements in the Bill are almost entirely a copy and paste of the provisions (called “fasal” at the Bill stage). I do not understand what is the point of doing this, because there is zero added value for the printers/relevant officer to do so. As a reader of law, I only assumed that Explanatory Statements are supposed to do just that.
This is what the Australian Parliament website says about Explanatory Statements (“Guide to Writing Explanatory Statements”[source : https://www.parliament.act.gov.au/__data/assets/pdf_file/0006/434346/Guide-to-writing-an-explanatory-statement.pdf ]
(e) Disqualification of members of the Tribunal. There are criminal offences punishable for up to 2 years which resemble sexual harassment and which would not get a member disqualified under the Act. This is less strict that the Child Act 2001 and other related laws related to childcare and early childhood eduation, where a person found guilty of an offence against children is barred from holding any license in childcare or education, and in the case of sexual offence against children, their names are registered in a Registry of sexual offenders against children. So here we see ASHA 2021 is less strict, presumably because its members include experienced members of the Judicial & Legal Service, senior lawyers and other great people. In my view, even a minor infringement of a sexual nature should disqualify a member. As though there is a dearth of candidates to choose from.
CONCLUSION
This was my first read-through of ASHA 2021. I see it as progress, 30 years of lobbying and hard work to seek redress against sexual harassment.
Unfortunately, for 10 years’ work, I think there were many opportunities that were missed. ASHA 2021 does not even prohibit sexual harassment. ASHA 2021 does not talk about establishing a safe place, “persekitaran yang selamat”.
For a long time, suggestive comments, “mengusik” and other conduct was dismissed by the establishment (in enforcement and in society) as being part of life and culture, and boys being boys (even if they were 50 and married), so we just have to accept it. No longer. Now we need to return to adab. With just a complaint, a Respondent cannot hide, a notice for hearing shall be issued to them.
I am impressed by the firepower available to the Tribunal (the RM250,000 ceiling and the ease to enforce the Award, plus 2 years jail for non-compliance). Noteworthy is that victims have direct access to a hearing, with no intermediary to filter except perhaps the Tribunal registration staff. Though some aspects seem off balanced, especially when we compare with the mainstream courts and other tribunals in our justice system. The fact that proceedings are closed is good but what’s the point if it won’t stop parallel criminal trials from being open and public. Compare with the Child Act 2001 and other related child laws that require the Court to protect the privacy of children in any court proceeding, including the power to gag the media publications.
I am not clear on the function (read: relevance) of the Administrator. This office seems to be the policy driver of the Act that is in charge and owns it, administratively. In my opinion, not every office needs to be established by a stand-alone Act. JAKIM and many other institutions do not exist from stand-alone Acts. Functionally, do we need a specific, statutory Administrator for this issue? Is it necessary? Lack of an administrator post does not mean we do not consider sexual harassment important. We don’t have a statutory Administrator for the Penal Code, overseeing everything from rape to murder, nor do we have a statutory Administrator for Dangerous Drugs Act 1952, whose court cases account for a huge part of the court’s workload. But I leave that to the experts, I have no strong opinion on the Administrator. Perhaps we will see the importance of the Administrator as the months pass and the Act is implemented broadly.