(1.0) Introduction
Previously, the author wrote in an article regarding Ain Husniza, a 17-year-old girl, who she alleges herself to be a victim of sexual harassment. She posted a video online, which she explained that in class, her teacher made lewd and indecorous jokes. The teacher then was transferred to the Selangor Education Department pending a related police investigation.
Unfortunately, despite police investigations are employed onto the said teacher. According to Salleh Buang, in his article states that there would be an NFA (No Further Action) against the teacher after the police declared the investigation completed. This is confirmed in another article by South China Morning Post.
This may have encouraged the teacher due the NFA, an implied innocence and that what the girl posted was false, he then sued the girl for defamation of RM1 million and her father too, as well as an apology. The girl and father received the letter from the teacher, non-conformity would result in legal action to be instituted. They are given 7 days.
The father questioned the teacher as Ain never identified or mentioned specifically who the person was as in defamation, the important elements of defamation are provided in Mohd Nasir bin Mustafa v Mohd Hanafiah bin Hanafi & Ors and another suit [2013] 9 MLJ 811, which these elements are also applied in numerous Malaysian cases;
(a) the statements must be defamatory,
(b) the statements must refer to plaintiff and
(c) the statements must be published by the defendants to a third party.
Therefore, the (b) element has not been proven. Also, Ain Husniza posting the video may not be defamatory under element (a) as it is within public interest and to spread awareness, given the positive reaction of Malaysia's netizens.
If the defamation were to suceed for the teacher, then it would be a precedent to prevent girls and women in the future to be afforded with justice, said Abinaya Dhivya Mohan, head of campaigns for WAO (Women's Aid Organisation).
On another occassion, the principal of her school Sarimah Mohamed Nor left comments calling Ain a hypocrite, satan's spawn wearing headscarves, but the principal denied it by saying that her Facebook account was hacked.
(2.0) The Countersuit
The lawyers representing the girl and father, Sankara Nair commented that his clients are to file a countersuit of RM5 million against the teacher. She was also advised to make another police report. What is the basis and the law on counterclaim applicability in Malaysia?
One particular case was in the Federal Court case of Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor, [2016] 4 MLJ 282 where both the appellant and respondent were employees of Lembaga Tabung Haji. The respondent was the subordinate of the appellant.
Similar to the NFA, when the respondent complained to the CEO of Tabung Haji, the Committee of Inquiry found no evidence to take disciplinary action against the appellant for the sexual harassment. Therefore, the appellant sued the respondent for defamation.
Conversely, the respondent made a counterclaim or countersuit. From the High Court, to the Court of Appeal and Federal Court, the appellant kept on losing and the respondent won her countersuit. This was because, there was ample evidence to indicate the appellant had uttered vulgar and sexually explicit remarks.
The countersuit must stand, because based on the tort of sexual harassment were fulfilled, which were;
(i) Existence of a persistent and deliberate course of unreasonable and oppressive conduct
(ii) Targeted at another victim
(iii) Calculated to cause alarm, fear and distress to that person
All the elements of sexual harassment are fulfilled, especially the third element as respondent suffered from symptoms of emotional distress, annoyance and mental depression. It was reasonable for the court to award general damages of RM100,000 and both aggravated damages and exemplary damages of RM20,000.
Some of the words uttered were;
"You nak kahwin dengan I tak, I banyak duit tau."
"Would you prefer married man"
Probably the worst "Kalau cari husband yang beragama, bertanggungjawab, macam I, You kena buat sembahyang istikharah dan kalau you mimpi, you akan berjimak dengan orang tu"
In the workplace, a new amendment was inserted as per section 2(g) of the Employment (Amendment) Act 2012 whereby it states;
"sexual harassment means any unwanted conduct of a sexual nature, whether verbal, nonverbal, 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."
Due to that, the victim is entitled to lodge a complaint to the employer and require him to investigate the complaint of sexual harassment. Before that, Malaysia relied on English Common Law principles for sexual harassment as pursuant to section 3(1) of the Civil Law Act 1956. Also, the 1999 Practice Code is only a guideline on what are sexual conducts and is not a mode for cause of action
With this decision in Ridzwan case, we no longer have to look at Common Law precedents, such as similarly in Wilkinson v Downton [1897] 2 QB 57, QBD (refd), the defendant through a "practical joke" (similar to Ain Husniza where the teacher made such sexual jokes), falsely represented to the plaintiff, a married woman, that her husband met with a serious accident.
The joke was intended to be true. The plaintiff believing as such suffered violent nervous shock, causing her to be ill, which constitutes a good cause of action.
(3.0) References;
Salleh Buang. (August, 2021) Refer to Federal Court's decision on sexual harassment. Retrieved from, https://www.nst.com.my/opinion/columnists/2021/08/716645/refer-federal-courts-decision-sexual-harassment
Sharhin Aizat Noorshahrizam. (August, 2021) Father: Teacher wants RM1m from Ain, claims rape joke allegation defamatory. Retrieved from, https://www.malaymail.com/news/malaysia/2021/08/04/father-teacher-wants-rm1m-from-ain-claims-rape-joke-allegation-defamatory/1995245
Yiswaree Palansamy. (May, 2021) MoE: Teacher accused of rape joke reassigned pending probe, principal who disparaged Ain claims Facebook account ‘hacked’. Retrieved from, https://www.malaymail.com/news/malaysia/2021/05/12/moe-teacher-accused-of-rape-joke-reassigned-pending-probe-principal-who-dis/1973607
Norman Goh. (August, 2021) #MakeSchoolASaferPlace: anger and dismay after Malaysia investigates student who called out teacher’s rape jokes. Retrieved from, https://www.scmp.com/week-asia/people/article/3144201/makeschoolasaferplace-anger-and-dismay-after-malaysia-investigates?module=perpetual_scroll&pgtype=article&campaign=3144201
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