In the recent past, there has been several high profile cases of sexual harassment. This does not mean that there is an increase in frequency of sexual harassment, it just means the victims have had enough. The public have clamoured for legislators to take note and to construct measures to protect people from such unwanted and unwarranted behaviour. Nevertheless, the recent introduction of the sexual harassment bill, having had its first reading on 15.12.2021[1], seemingly does not meet this aim. Here are five key takeaways from the new Sexual Harassment Bill 2021.
It Does Not Tackle Sexual Harassment
First and foremost, the Bill aims to introduce a tribunal to hear sexual harassment complaints. The Bill goes into the nitty gritty of the setting of the tribunal, its powers, its constitution, how hearings are to be closed and the possibility for a negotiated settlement. Essentially, it is setting up a separate specialised court of law, with its own rules and regulations separate from the Courts of Law.
You, dear reader, will note that it does not tackle the act of sexual harassment at all. It does not enhance the current law on sexual harassment, which primarily only rests upon Section 509 of the Penal Code (insulting the modesty of a person). Section 509 has been derided by the Women’s Aid Organisation for being woefully inadequate to handle the various forms of sexual harassment faced by Malaysians.
It does not add or enhance, or give legal backing to the Code of Practice on the Prevention and Eradication of Sexual Harassment 1991. It does not promote or assist institutions in setting up procedures to curb such actions Thus, institutions are not guided and/or required to set up any protective measures in institutions of learning and/or work where the majority of sexual harassment cases occur.
It does not give the court or law enforcement any powers or measures to protect victims of sexual harassment from further assaults. This means law enforcement and courts have to wait for the next incident which defeats the purpose of laws.
In fact, the new bill requires complainants to pay to complain as there is a prescribed fee for any complaints to the tribunal[2]. If anything, it seems to make the law on sexual harassment more confusing and restrictive to victims of sexual harassment.
Exclusive Jurisdiction Not that Exclusive
The proposed Bill also provides that in the event a complaint is lodged with the tribunal, the complaint shall not be the subject of proceedings in court[3]. One of the exceptions is where the complaint of sexual harassment involves any conduct constituting a crime.
This seems counter-intuitive. Sexual harassment in many events, involves an element of harassment and/or assault. There is threats or reasons for the victim to feel a fear of harm befalling them. As such, the majority of sexual harassment complaints can be persecuted in both the tribunal and in court.
No Limitation Period
A potential double edged sword to the tribunal is that all rules of proceedings and procedure for the tribunal shall be made by the Tribunal. As such, legal provisions may or may not apply to complaints made to the tribunal.
One potential benefit for victims is that there may not be a time limitation placed on a complaint. In legal cases, where a civil action for sexual harassment is concerned, there is a limitation period of six years. As such, if an incident happened more than six years ago, and it is not part of a continued cycle of harassment, the victim cannot seek justice for the incident.
However, there is no indication that the limitation period would be applied to the tribunal. As such there may be the possibility of complainants raising incidents and seeking justice where in the past, they were prevented from doing so due to other pressures.
In the same vein, it may be difficult to prove or defend such complaints as the incident was too long ago. Thus, the tribunal may lean
No Representation
A curious element in the Bill is that no party to a proceedings shall be represented by an advocate and solicitor[4]. While this author does agree that lawyers can cause a simple situation more complex, it does mean that the complainant or alleged abuser may not be adequately assisted in preparation of their case.
The Bill does mention that there will be several procedural requirements to be followed and that the tribunal has interlocutory powers. This will inevitably require paperwork, tracking and drafting which will be left to the parties to comply with on their own.
While this author is not against having no legal representation at the hearing, the act should specify assistance available to parties via the tribunal such as legal aid programmes or assistance by tribunal staff. This could be modelled in the same manner as how court staff assist parties who represent themselves in legal proceedings.
Powers of Punishment
The Bill also specifies the types of awards available to the tribunal in the event the Tribunal makes a finding of guilt. These are:
(a) an order for the respondent to issue a statement of apology to the complainant as specified in the order;
(b) if the complaint related to any act of sexual harassment which was carried out in public, an order for the respondent to publish a statement of apology to the complainant in any manner as specified in the order;
(c) an order for the respondent to pay any compensation or damages not exceeding two hundred and fifty thousand ringgit for any loss or damage suffered by the complainant in respect of the act of sexual harassment; or
(d) an order for the parties to attend any programme as the Tribunal thinks necessary.
(e) The Tribunal may make such ancillary or consequential orders or relief as may be necessary to give effect to any order made by the Tribunal[5].
The above powers are unique and may be appropriate in certain settings. A court of law cannot compel an abuser to make an apology which may be what a survivor of sexual harassment may be looking for.
However, seeing as the Tribunal is not a judiciary body, the tribunal cannot and should not have powers involving imprisonment. Nevertheless, sexual harassment involves elements of breach of personal space, autonomy and/or personal security. These breaches are often dealt with in criminal court.
If the said powers are not offered and/or there is no power for referral of such findings of guilt to the Courts of Law, then the limit of the punishment is a fine. As such, for abusers with money, such punishments are nothing more than the price of such action. To quote the Final Fantasy Tactics meme, “If the penalty for a crime is a fine, then the law only exists for the lower class”.
Enforcement of Judgment
Interestingly, the Act does allow for criminal punishment for failure of parties to comply with the award. This includes imprisonment for up to two years. While this is an indication that the government intends for parties to take the award seriously, it does mean that legislators care more for the apparent veracity of such awards rather than justice to parties.
Conclusion
In short, the Bill does not meet the expectations and or requirements for dealing with sexual harassment. The public have demanded firmer laws and action, similar to how the Government was quick to institute harsher penalties for drink driving. However, what this bill seems to do is to allow for complaints of sexual abuse to be kept out of courts, held in private without public oversight[6], without toughening laws or putting deterrents in place.
References: [1] https://www.parlimen.gov.my/bills-dewan-rakyat.html?uweb=dr&lang=en [2] Section 10 of the Anti-Sexual Harassment Bill 2021 [3] Section 8 of the Anti-Sexual Harassment Bill 2021 [4] Section 13 Anti-Sexual Harassment Bill 2021 [5] Section 20 Anti-Sexual Harassment Bill 2021 [6] Section 14 Anti Sexual Harassment Bill
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