After more than two decades of advocacy by women’s rights activists, the passing of the Anti-Sexual Harassment Bill by the Dewan Rakyat last Wednesday was truly a long time coming.
The bill stipulates the setting up of a closed-door tribunal to hear cases of sexual harassment, come up with a judgement, award compensation and direct perpetrators to issue an official apology to complainants, if they are found to be at fault. Offenders may have to pay compensation or damages of up to RM250,000 for any loss or damage suffered by the complainant. Defendants who fail to comply with the tribunal’s ruling can be fined or imprisoned.
Once the bill is gazetted and the tribunal is up and running, anyone who directly experiences sexual harassment (verbal, non-verbal, visual, gestural or physical) can report it and have their case heard and expect an outcome within 60 days from the start of their hearing.
Although many details about the tribunal are still being fine tuned, the Women, Family and Community Development Ministry (under which it will be parked) says that it will be headed by a president and deputy president, who will be appointed from among members of the judiciary. Remaining members will comprise former members of the judiciary or experienced practising lawyers and those with expertise in sexual harassment laws. The panel will also have at least one woman and at least one man.
Women’s Minister Datuk Seri Rina Harun assured survivors that the process will be victim-centric, expedient and will not cost a lot.
The passing of the bill is momentous: It acknowledges the dire impact that sexual harassment has on victims and hopefully sends a message that time’s up for perpetrators of sexual harassment.
For survivors, the passing of the bill is a relief. The law acknowledges the trauma that they’ve gone through and indicates that the government will hear them, crack the whip on sexual harassers, and provide them remedies.
“I was really quite emotional when I read the news,” says survivor, Angeline, 30. “I couldn’t believe that it was finally happening. I hope that this law really does give victims of sexual harassment some justice because we have been on a very lonely journey thus far. There has not been many avenues to report, talk about or see our harassers be accountable for their actions. Instead, we are revictimised every time we see sexual harassment being trivialised,” she says.
The public relations executive was sexually harassed by a superior at work when she was 23.
“I was a newbie on the job and my superior slid his hand under my skirt when we went out for dinner one night. When I pushed him away he became aggressive. After that, things got unpleasant at work and he claimed I was incompetent at my job. When I complained to a female senior, I was told to ‘just forget about it’. When I went to the department head, he asked me if I was sure that’s what happened. I left the company but the experience never left me.
“I hope this tribunal will give women like me the space to be heard, believed and that it will punish those who offend,” she says.
Finally, a law
For the many activists who have fought long and hard for a law on sexual harassment, the passing of the Bill was momentous. But it was also bittersweet.
It was exhilarating to see their efforts pay off but also frustrating because the Bill that was passed had significant gaps that they tried to get amended prior to the Dewan Rakyat sitting via numerous memorandums, meetings and petitions.
“I was both elated and saddened,” says Zarizana Abdul Aziz, past president of the Women’s Centre for Change (WCC), Penang, who was among those who drafted the original legislation on sexual harassment back in 2000. The original draft went through several revisions along the way, with input and expertise from members from the Association of Women's Lawyer, to produce the 2021 Bill.
“I was elated that the law was finally passed and thankful to all those who worked to ensure its passing – civil society and government officials and politicians alike; but I was saddened that it took 20 years for a law to be passed,” she said.
Betty Yeoh, consultant at women’s NGO Engender said that though she’s happy to see the Bill passed, it was disappointing to see certain important provisions left out, resulting in a bill that isn’t as comprehensive as it could be. Yeoh, who was a member of the Special Projects Team initiated by the Women, Family and Community Development Ministry to discuss the draft bill, said that although a lot of discussions went on in meetings, the final bill was wanting.
“Comparing the Bill that was first drafted and redrafted to the one that was passed ... we do feel very sad. But, we are happy that after 20 years, there is a Bill.
“Now we have to work on how we can fill the gaps through its implementation.
“The minister said there will be committees for the drafting of guidelines and monitoring the implementation of the law. Civil society must be a part of these committees to make sure that the implementation and monitoring system works. Otherwise everything that we’ve done could go down the drain,” says Yeoh.
Though the passing of the Bill is a positive step to be lauded, there are a few gaps that need to be addressed, and it begins with the definition of sexual harassment in the Bill, activists say.
“The definition of sexual harassment is too narrow,” says Zarizana. “Sexual harassment is generally legally categorised into two forms. The first form is quid pro quo, in other words, the ‘put up or get out’ demand made of an employee by someone with the power or apparent authority to hire, promote, fire or otherwise cause an adverse employment decision. Women have to either put up with the harassment of lose their jobs or put up with the harassment in order to get a job or complete their studies or apprenticeship/internship.
“The harassment could be by employers and their employees or by persons whom women are required to interact with as part of their work, for example nurses by patients, journalists by interviewees, hotel staff by guests.
“The second form is the ‘hostile environment’, where the employee was made to endure offensive behaviour. For example, male colleagues cracking offensive sexual jokes in the company of their female colleagues, or posting pictures of naked women at their workspaces or having screensavers of naked women. These acts are not necessarily targeted at a particular female colleague, but makes for a hostile environment for women.
“The Bill (that was passed) seems to combine both definitions but requires a complainant to show that she was the direct target of sexual harassment and that others must also find the act offensive, humiliating or a threat,” says Zarizana.
This is problematic, she says.
“So, if a professor is in the habit of cracking sexually explicit jokes in class, or make insinuations that about women’s sexuality in general, and he made sure that these comments are not directed at a particular female student, she may not be able to complain. Or if a general manager sends emails out to all employees with sexually derogatory or sexually explicit comments about women, she may not be able to complain either,” she explains.
Another problem with the Bill is that it does not place any obligation on employers or organisations over the conduct of its employees and behaviour of clients.
“Good practice for a law on gender-based violence including sexual harassment dictates that the law must prevent sexual harassment, prohibit sexual harassment, protect complainants (from victimisations and retribution – this includes protecting persons assisting the complainants and whisteblowers), provide remedies and set up responsive assistance for victims/survivors of sexual harassment (as stated in the 2019 ILO Convention).
“But this law does not obligate persons or entities that have control over the environment or establishment to take any action,” she says. “The law must make these business entities vicariously responsible if they fail to take action despite having knowledge (know or should have known) of the sexual harassment incidence(s). Otherwise we cannot stop sexual harassment. The Human Resources Ministry had tried, through the 1999 Code of Conduct to encourage employers to develop anti-sexual harassment policies. This was by and large not taken up by employers and has proven incapable of bringing about mindset change and change of behaviour,” she says.
Thirdly, says Zarizana, there needs to be a provision to ensure that the person attempting to negotiate a settlement between the parties cannot be the same person hearing the complaint.
“Any attempt at negotiations must take into account the differential power balance between the parties. The complainant must be given a real choice whether to proceed with the complaint or attempt negotiation,” she says.
It is also important, she points out, that those who report are not penalised for it.
“What is alarming is that women who lodge complaints of sexual harassment or assault are counter-sued by the alleged perpetrator. In the US, this is called SLAPP suits that is meant to scare or silence individuals and tie them up in legal suits. The claims are usually for large sums of money and are to intimidate women.
“In several jurisdictions, the practice has been restricted. In most instances, at the very least, the original claims of sexual harassment should be heard and decided before the counter defamation suit is hear,” says Zarizana.
Step by step
Until the law can be enforced, the task at hand for civil society groups is to ensure that all systems are in place for it to be carried out properly to benefit victims of sexual harassment.
It is important to talk about the law and normalise talking about sexual harassment in our spaces.
“For now, NGOS and all other stakeholders can create awareness about the law with the community, in workspaces and so on. We can try to normalise conversations on sexual harassment using what we have in the newly passed law,” says Lilian Kok, Programme Manager, All Women’s Action Society (AWAM).
Yeoh suggests that in the interim, until the Tribunal is set up and ready to hear cases, the ministry should be prepared to cater to an influx of victims coming forward.
“Usually, when a law such as this is introduced, people will start calling, hoping that they can report their cases and get help. The Ministry must be prepared for this and maybe have a unit to advise and talk to these complainants,” says Yeoh.
“NGOs can also offer our services to the Ministry to train Talian Kasih hotline operators, for example, to deal with calls from victims wanting to report sexual harassment,” adds Kok.