Malaysia’s Anti-Sexual Harassment Bill tabled in Parliament

The Anti-Sexual Harassment Bill 2021 (“the Bill”) was tabled for its first reading in the Dewan Rakyat earlier today.

Addressing the media, Deputy Women, Family and Community Development Minister Datuk Siti Zailah Mohd Yusoff said that the Bill was drafted by a special project team consisting of representatives from government agencies, academicians, NGOs, as well as following consultation with several other stakeholders. According to Siti Zailah, the Bill will lay the foundations for structural reforms which seeks to “address legal gaps and improve the existing justice system”.

Last month, Siti Zailah shared that 775 sexual harassment cases had been reported so far in 2021, and that those cases were being handled through other laws such as the Penal Code, Employment Act, Communications and Multimedia Act, and the Sexual Offences Against Children Act.

This article sets out the key provisions of the current draft of the Bill.

Purpose of the Act

Once passed, the Act will be known as the Anti-Sexual Harassment Act 2021, and is described as: “An Act to provide for a right of redress for any person who has been sexually harassed, the establishment of the Tribunal for Anti-Sexual Harassment, the promotion of awareness of sexual harassment, and to provide for related matters.”

Definition of “sexual harassment”

The Bill 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”.

Tribunal for Anti-Sexual Harassment

The Bill provides for an establishment of a “Tribunal for Anti-Sexual Harassment” (“Tribunal”), which will consist of the following members to be appointed by the Women, Family and Community Development Minister (“the Minister”):

  1. A President and a Deputy President to be appointed from members of the Judicial and Legal Service.
  2. Not less than 5 other members, comprising — (a) persons who are members of or who have held office in the Judicial and Legal Service; or (b) practising lawyers who have not less than 7 years’ standing; and
  3. Not less than 5 other members, as may be determined by the Minister, who have knowledge of or practical experience in matters relating to sexual harassment.

The composition of each sitting of Tribunal will be determined by the President, and will be a 3-member panel comprising:

  1. The President or Deputy President, or any one of the members appointed under Item 2 above, as Chairperson.
  2. Any other two members appointed under Item 3 above.

Each sitting will comprise of at least one woman.

Jurisdiction of the Tribunal

The Tribunal shall have jurisdiction to hear and determine any complaint of sexual harassment made by any person.

The Bill provides that where a sexual harassment is lodged to the Tribunal, the issues in that complaint cannot be the subject of proceedings between the same parties in any court unless —

  1. the court proceedings were commenced before the complaint was lodged with the Tribunal (though note that the Bill states that even in this scenario, the issues in dispute shall not be the subject of proceedings between the same parties before the Tribunal unless the claim of sexual harassment before the court is withdrawn or struck out);
  2. the complaint involves any conduct constituting a crime under any written law; or
  3. the complaint before the Tribunal is withdrawn or struck out.

A complaint made to the Tribunal does not preclude the complainant or any other person from lodging a police report for any offence relating to sexual harassment under any written laws.

Tribunal rules and procedure

The Tribunal proceedings will be conducted in accordance with a written procedure to be determined and published by the President. The Tribunal will have powers to —

  1. make an interlocutory order;
  2. determine the relevancy, admissibility and weight of any evidence;
  3. take evidence on oath or affirmation;
  4. order the provision of further particulars in a statement of complaint of sexual harassment or statement of reply;
  5. order the preservation and interim custody of any evidence for the purposes of the hearing; and
  6. summon the parties to the proceedings or any other person to attend before the Tribunal to give evidence or to produce any document, record or other thing in his possession or otherwise to assist the Tribunal in its deliberations.

Sexual harassment complaints will be determined by the Tribunal on the balance of probabilities.

No legal representation

Parties are not allowed to be represented by an advocate and solicitor at a hearing.

Closed hearings

All Tribunal hearings will be closed to the public.

Tribunal awards and orders

The Tribunal is required to make its award “without delay” and, where practicable, within 60 days from the first day of the Tribunal hearing. The award or dismissal of the complaint must set out written reasons and any findings of facts or recommendations.

The Tribunal can make any one or more of the following orders:

  1. An order for the respondent to issue a statement of apology to the complainant.
  2. If the complaint relates to an act of sexual harassment which was carried out in public, an order for the respondent to publish a statement of apology to the complainant.
  3. An order for the respondent to pay any compensation or damages not exceeding RM250,000 for any loss or damage suffered by the complainant.
  4. An order for the parties to attend any programme the Tribunal thinks necessary.

The Tribunal can dismiss “frivolous or vexatious” complaints.

Criminal penalty for not complying with Tribunal award

Failing to comply with an award by the Tribunal within 30 days is an offence which, on conviction, makes a person liable to —

  1. where compensation or damages is ordered, a fine two times the total amount of the compensation or damages, or to imprisonment for a term not exceeding two years, or to both; or
  2. where no compensation or damages is ordered by the Tribunal, a fine not exceeding RM10,000, or to imprisonment for a term not exceeding two years, or to both.

Additionally, for continuing offences, in addition the above the person will be liable to a finenot exceeding RM1,000 for each day or part of a day during which the offence continues after the conviction.

Tribunal awards are final

Awards made by the Tribunal are final and binding on all parties (subject to the right of any party to apply to the High Court challenging the award only on the grounds of “serious irregularity”), and are deemed to be an order of a court, enforceable accordingly.

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