Written by: Averroes
(1.0) Introduction
Previously, the author had touched upon two articles here and here, regarding Ain Husniza's situation where rape jokes were allegedly uttered by a teacher from a school in Shah Alam.
Both those articles touched upon the laws to bring the perpetrators before court, such as section 292 for circulation and distribution of obscene literature, 354 for outrage of modesty, 503 and 509 of the Penal Code for criminal intimidation and insulting the modesty and section 233 of the Multimedia and Communications Act 1998 and the Federal Court decision in Mohd Ridzwan bin Abdul Razak for a countersuit and tort of sexual harassment.
Despite the laws above, they are not specifically catered to sexual harassment, but 'informally does carry connotations of sexual harassment'. For instances, when a husband abuses his wife, it is 'informally known as domestic abuse' by the public, but in reality it is actually just the offence of 'causing hurt' under section 323 of the Penal Code.
Enacting a new comprehensive law on sexual harassment, it could provide a heftier punishment toward the perpetrators and accurately define what actually constitutes sexual harassment, as well as extend the application to more situations, such as in schools, universities, the open public and others.
Though, as time progresses, news came out that the Women, Family and Community Development Minister Rina Mohd Harun said that the Sexual Harassment Bill is consuming a large chunk of time to pass in Parliament, as it has to be filtered through numerous ministries, before arriving at the Attorney-General's Chambers.
However, despite no Sexual Harassment Act or Law yet, she did advise for victims to report to the authorities or Talian Kasih 15999 if there are any incidents that befall them. This came after the government had been pressured by several NGOs for the dormant move to enact the Bill or Law.
(1.1) Social Effects on Victims
In most cases, victims are afraid to speak up when incidence of sexual harassment occurs, hence goes unreported. This stems from social stigmatisation and fears of being ostracised, victims will not be taken seriously and the perturbation of reprisals such as shame and ridicule to the dignity of oneself and their family. They would only have the courage to report with another friend filing a complaint on their behalf.
Sexual harassment could occur on everyone regardless of genders and their ranks in employments. As a result, it would brew a hostile environment for everyone. The victims whom are afraid to take action would resign instead. They will be mentally, emotionally and psychologically affected by the misconduct.
Most laws and news related to sexual harassment occurs in the office, but may happen just about anywhere and anytime. Women are the backbone of developing the economy and advancement of our country Malaysia, as they contribute manpower, the skills and abilities to help to Malaysia stand out on the globe. If sexual harassment continues, our nation's productivity and safety would be jeopardised.
(2.0) Legal Analysis
(2.1) Provisions and Codes
There are enormous amounts of definitions or interpretation of what is sexual harassment, depending on the legislation, policy and views of authoritative individuals. There is no one-single definition as it is very broad and wide.
Fundamentally, article 5(1) of the Federal Constitution as expounded in Lembaga Tatatertib Perkhidmatan Awam, Hospital Besar Pulau Pinang v Utra Badi a/l K Perumal [2000] 3 MLJ 281, at p 294; [2000] 3 CLJ 224, at p 239 (CA); defines life not only limited to physical existence alone, but incorporates the quality of protection to one's honour and dignity.
According to the Code of Practice on the Prevention and Eradication Sexual Harassment at the Workplace 1999, issued by the Ministry of Human Resources (1999 Code), it refers 'sexual harassment' as 'any unwanted conduct of sexual nature'. Ashgar Ali taking cue from the 1999 Code specifies the following as forms of sexual harassment;
(i) Verbal Harassment
(ii) Non-Verbal or Gestural Harassment
(iii) Written Harassment
(iv) Visual Harassment
(v) Psychological Harassment
(vi) Physical Harassment
The above 1999 Code is only a guideline and not binding, hence no legal action would be taken against the perpetrators. However, it would be binding if companies model or adapt this code into their own policy or rules to terminate or dismiss any of their employees were to commit sexual harassment.
The 1999 Code is also applicable to private sectors only and does not cover the government as well as toward society as a large. The guideline states that "the most effective way of dealing with the problem is to tackle it at the workplace itself" and "the best approach is to combat sexual harassment in the workplace is through the establishment and redress mechanisms at the enterprise level."
When viewing section 15(1) of the Occupational, Safety and Health Act 1994 (OSHA), where an employer has a duty to ensure as far as practicable safety and health of the employee in the workplace. However, there is the lack of regulations under OSHA, to recognise sexual harassment as a safety issue and that under the First Schedule, it is only limited to a few industries only.
For the Employment Act 1955 (EA) despite being amended to include sexual harassment and the punishments, it is only applicable in the private sector in Peninsular Malaysia of employer-employee relationship. Contract workers, consultants and trainees would not be protected under this law.
The victim would have to complain of the sexual harassment to the employer and he must inquire into it as prescribed by the Minister. This is per section 2(1), 81A and 8B of the EA. When the employer is satisfied that there is sexual harassment, then he could either dismiss the employee perpetrator, downgrade him or other lesser punishment. An employer who fails to inquire into complaints of sexual harassment also commits an offence and has to pay a fine of RM10,000.
There is law to take public servants liable too as provided under Regulation 4(2)(d) of Part II on the Code of Conduct of the Public Officers (Conduct and Discipline) Regulations 1993 clearly states that an officer shall not conduct himself in such a manner so as to bring the public service into disrepute or to bring discredit to the public service.
That would include not making any sexual advances or requesting sexual favours (quid pro quo). It does not matter if it is within or outside working hours, as long as it brings the public service to disrepute, they would run counter to it. As a result, discipilinary action would be taken such as a warning, fine, forfeiture of emoluments, deferment of salary, reduction of salary, reduction in rank or dismissal.
(2.2) Case Laws
Firstly, in Vasuthan Athaly v. Freescale Semiconductor (M) Sdn. Bhd. [2013] 1 ILR 73, they determined that the key element for sexual harassment cases is that the acts of the alleged perpetrator are unsolicited or unreciprocated by the recipient. In other words, they are unwelcome and not mutual. This is another definition of sexual harassment.
Secondly, a person could be dismissed if they are implicated for sexual harassment and may challenge the dismissal in the Industrial Court, to be reinstated.
In Harry Wong Wei Chen v Petroliam Nasional Bhd (Petronas) [2021] ILJU 2, in relations to section 20(3) of the Industrial Relations Act 1967 that provides two elements for the dismissal (burden of proof is on employer on balance of probabilities to establish both elements);
Firstly, whether the misconduct of the employee alleged by the employer has been established
Secondly, whether the proven misconduct constitute just cause or excuse for the dismissal
In terms of corroborating evidence, reiterating the decision in Mohd Ridzwan Abdul Razak v. Asmah Hj Mohd Nor [2016] 6 CLJ 346, absence of corroboration evidence does not defeat a complainant's allegation of sexual harassment. (Though, may be a lacunae as it could bring injustice to those wrongly accused)
Also corroboration is only used when the testimony from the victim themselves are not credible, as to confirm the evidence with another evidenc, such as a creditworthy witness affirming another creditworthy witness. (Director of Public Prosecutions v Kilbourne [1973] 1 All ER 440)
The claimant brought the case of his dismissal to the Industrial Court, which he wanted to prove that he did not commit sexual harassment against the claimant and that he was unfairly dismissed from it. The facts were that, the claimant was the Project Manager under the project, PETRONAS-NIOC Dezful Embayment and his last drawn monthly salary was RM19,422.00.
However, he was alleged to have committed sexual harassment against his female colleague, the complainant. The evidence are as follows on different occasions;
(i) He said "Your maths and time management is very bad, Fuck you" and showed the middle finger to her. Court found that as a man, he should not have uttered crude and vulgar language, especially toward a woman.
(ii) He once scolded her, "Kau jangan mengada nak tambah drama ko... Kalau tak aku fuck ko lagi!" and gestured the middle finger
(iii) Called her "Pishy Pia" which is "Pussy Cat, come here!" in the Persian language.
(iv) "Touch me Nini... touch me..."
(v) Tried to hug her from behind, to help her climb the sand dunes at the Yazd Desert, Iran
(vi) "Amboi Nini... jalan melenggang." as he ogled her from behind.
(vii) Rubbed his body against her backside while inside the kitchen. The claimant said, "Ehh Ehh...! Terkena pula. Tu la ko besar sangat!"
(viii) Said, "Nini ada curve... that's why local (Iranian) suka" and "Nini lurah ko nampak" while creasing an undefined smile.
(ix) Tapped her left thigh while inside the lift
(x) He said, "Nini, harini ko tak sentuh aku lagi..."
(xi) "Nini, sexynya hari ni." while looking at her chest. She then covered her chest with her hijab and he later said, "Well, I didn't say apa yang sexy." Later that afternoon, he raised her skirt with his feet which revealed her calf.
Due to all of these conducts, the Domestic Inquiry Panel of the company found the claimant guilty of all the charges against him and then he was later dismissed. Section 114(g) of the Evidence Act 1950 was not invoked against them, even if they failed to produce the Domestic Inquiry Notes as it was not binding upon the Industrial Court, but may depend if there was a Domestic Inquiry was 'indeed conducted'.
This was because, as a Project Manager, he is supposed to exude leadership qualities to his subordinates and display great degree of integrity and honesty. He was also expected to ensure a safe and conducive working environment for all the employees. This is aligned with the Freescale Semiconductor Malaysian Sdn Bhd v. Edwin Michael Jalleh & Anor [2013] 4 ILR 237 decision.
Since we mentioned that each company could formulate their own policies by having the 1999 Code as a guideline, the Company had their 'Code of Conduct and Business Ethics', as under article 5 to dismiss the claimant or other forms of disciplinary action. Even if the victim is silent and does not respond, it does not mean consent, as they wish for the situation to fade away slowly.
(3.0) Conclusion
To conclude, Malaysia does not have a specific sexual harassment law, as most of the laws are based on other existing laws, but under the impression that it is used to curb sexual harassment, mostly under the Penal Code.
Also, we have laws under the Industrial Relations, Public Office Regulations, Employment and OSHA Acts, but their application is limited to only the private employment and government sector (the regulation) and does not cover in every other situations or circumstances and individuals, such as at schools, universities, public spaces, in the residential areas or just about anywhere.
Also, having the Sexual Harassment Bill in its planning and studying process should have a very precise and objective scope and rationale of how it would apply, the type of punishments, any procedures that would be included. For now, we could only spread awareness and educate the public on the issue of sexual harassment as well as write petitions or lobby for the Bill to pass.
(4.0) References;
Bernama. (September, 2021) Report sexual harassment to authorities immediately - Rina. Retrieved from, https://www.bernama.com/v2/en//news.php?id=2001118
Lavanian Nathan Jothy. Sexual Harassment As Discrimination. [2010] 3 ILR. Retrieved from, https://www.researchgate.net/publication/256035852_Sexual_Harassment_as_Discrimination/link/5be59e3da6fdcc3a8dc90d86/download
Alagappar, P., & Marican. S., (2014) The Issue of Sexual Harassment Legislation in a Mainstream Newspaper in Malaysia. The International Conference on Communication and Media 2014 (i-COME’14), 18-20 October, 2014, Langkawi, MALAYSIA. Retrieved from, doi: 10.1016/j.sbspro.2014.10.307
Ministry of Human Resource, Malaysia. (1999) CODE OF PRACTICE ON THE PREVENTION AND ERADICATION OF SEXUAL HARASSMENT IN THE WORKPLACE. Retrieved from, https://www.ilo.org/dyn/travail/docs/1627/CODE%20OF%20PRACTICE%20ON%20THE%20PREVENTION%20AND%20ERADICATION%20OF%20SEXUAL%20HARASSMENT%20IN%20THE%20WORKPLACE.pdf
Muzaffar Syah Mallow. Sexual Harassment at the Workplace and the Issue of Corroboration Evidence [2020] 1 MLJ ci
Muzaffar Syah B Mallow. The Criminal Law Approach on the Issue of Sexual Harassment in the Workplace [2012] 2 ILJ lxxv
Muzaffar Syah B Mallow. SEXUAL HARASSMENT IN THE WORKPLACE: THE CURRENT LAW AND PRACTICE IN MALAYSIA [2010] 1 MLJ cxx
Ashgar Ali Ali Mohamed & Farheen Baig Sardar Baig. Sexual Harassment And Gender Discrimination [2015] 3 MLJ lxi
Sexual Harassment. Halsbury's Laws of Malaysia - Employment (Volume 8)
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