Urgently review Malaysia's Anti-Sexual Harassment Bill 2021

THE Joint Action Group for Gender Equality, Engender Consultancy and Young Women Making Change collectively call for an urgent review of the Anti-Sexual Harassment Bill 2021.

This legislation has been 30 years in the making. Since the 1990s, women’s groups have engaged extensively with the government on the matter, including in drafting the Bill. The first reading of the Bill was held on Dec 15, 2021, and it will be tabled for a second reading in the Parliamentary meeting that began yesterday, Feb 28, 2022.

While we recognise and appreciate the government’s efforts to honour its commitment of passing specific legislation on sexual harassment, unfortunately, there remains significant gaps in the Bill, especially in proper redress and prevention mechanisms to protect victims of sexual harassment.

Yesterday, we presented a memorandum with recommendations to amend the Bill, including through the addition of new sections, to the government and the public – it can be accessed here. These amendments will ensure that we enact legislation that is comprehensive and prioritises the rights and wellbeing of victims of sexual harassment.

What would a comprehensive victim-centric Bill entail? We would like to highlight several critical points from our memorandum below:

> Firstly, organisational duties to prevent and address sexual harassment (section A.3 in the memorandum) must be included.

The proposed tribunal where survivors can report sexual harassment is welcomed. However, sexual harassment does not solely occur between two individuals. It happens within a setting or environment – including at work, universities, schools, public transport, and so on. Therefore, organisational duty is a fundamental component which must be included. Including organisational duties in the Bill ensures that steps must be taken by organisations to prevent sexual harassment from occurring in the first place. Without mandated organisational duties, survivors must wait for the harassment to occur – and then bear the responsibility of reporting it on their own.

Additionally, with organisational duties spelt out, survivors would have the option of addressing harassment at the organisation level, which may be preferable. For example, a student may be more comfortable reporting harassment to student affairs rather than to an external tribunal.

Existing laws do not adequately address this. The Employment Act provisions are weak and limited, and there are no laws covering universities, schools, public transport, malls, and other areas where sexual harassment occurs.

The Bill should specify steps which employers, universities, public transport operators and other organisation administrators must take to prevent and address sexual harassment in their respective organisations.

These could include prohibiting sexual harassment, mandating basic training on sexual harassment, and adopting a complaints mechanism to respond to complaints. The size of an organisation can be considered to ensure measures required are not beyond the organisation’s capabilities.

> Next, the definition of sexual harassment in the Bill (section B.2 in the memorandum) must be extended.

The definition should recognise instances where the harassment is not directed at a particular individual but creates an offensive, hostile, or intimidating environment. For example, situations where a supervisor narrates sexual jokes and innuendos to subordinates can cause an offensive, hostile or intimidating environment which affects individuals’ ability to function at work.

> Finally, provisions on victimisation (section A.4 in the memorandum) must be included.

To put it simply, victimisation is when the complainant is treated badly or faces negative consequences for making a complaint. Victimisation is a common retaliatory response to survivors of sexual harassment. It is detrimental as it can lead to underreporting and also re-traumatises survivors.

For example, a professor may threaten to mark down a student for making a sexual harassment complaint or supporting another student’s claim. The Anti-Sexual Harassment Bill should have a clause protecting complainants to ensure they feel safe in reporting their experiences.

The concerns we have highlighted above are not new. We have repeatedly advocated for these provisions to be included in the drafting of the Bill. Regrettably, they were not.

We call for the Anti-Sexual Harassment Bill 2021 to be urgently reviewed by the Parliamentary Special Select Committee on Women and Children Affairs and Social Development as well as all members of Parliament. It is imperative that our lawmakers commit to passing a comprehensive, victim-centric legislation against sexual harassment. Otherwise, loopholes in protection and redress for victims would defeat the purpose of such legislation.

Finally, we would like to call upon members of the public and the media to support our campaign to #ReviewTheBill. We have come this far with our efforts to enact anti-sexual harassment legislation but we are #NotQuiteThere yet. Those who wish to support us can follow the social media channels of our respective organisations and spread the message by using the said hashtags. We all deserve a better Bill.

This letter is endorsed by the following organisations:

Women’s Aid Organisation (WAO); Association of Women Lawyers (AWL); Sabah Women’s Action Resource Group (Saw); Family Frontiers; Empower; Sisters in Islam (SIS); KRYSS Network; Justice for Sisters; Perak Women for Women (PWW); Tenaganita; Young Women Making Change Malaysia; Speak Up Malaysia; Engender Consultancy; Women’s Centre for Change, Penang (WCC); All Women’s Action Society (Awam); Sarawak Women for Women Society (SWWS); and Sahabat Wanita Selangor (PSWS)