- UM Law Society
COMBATING SEXUAL HARASSMENT
The journey to improving the outdated laws regarding sexual harassment in Malaysia have been a long standing struggle for local activists. The work to pass the Sexual Harassment Bill, spearheaded by the Joint Action Group for Gender Equality (JAG), began as early as 20 years ago.
Amidst surging reports of sexual harassment cases, among which are notable cases such as Shamahir Alam SM Khairuddin v IBFIM and Loganathan v Murphy Sarawak Oil Co Ltd, attempts at passing the Bill were delayed due to results of a feasibility study still being scrutinized and now, under the excuse of the pandemic.
Indeed, there are existing laws and guidelines which serve to protect victims of sexual assault and harassment in Malaysia. Section 509 of the Penal Code criminalizes insulting the modesty of any person and intruding upon the privacy of such person. However, this section does not detail all the possible forms of unwanted sexual conduct including sexual harassment through online spaces.
On the other hand, the Employment Act 1955 provides a broader definition of sexual misconduct and also forces employers to take disciplinary action against those proven guilty. The Act however, solely protects those employed. Malaysia's Code of Practice on the Prevention and Eradication of Sexual Harassment in Workplace 1999 supplements as guidelines for employers against sexual harassment, yet the Code does not hold any legal enforcement as the main purpose of its formation was to ensure a systematic procedure in filing an appeal, hence merely helpful as a guide to the court.
In June 2016, the High Court’s landmark decision, in the case of Mohd Ridzwan bin Abdul Razak v Asmah binti Hj Mohd Nor, later approved by the Federal Court, introduced the tort of sexual harassment into the legal system, wherein sexual harassment is accepted as a valid cause of action for victims. Despite the monumental progress, such action only seeks to compensate victims with damages and does not impose punishment against the offender.
The above shows, undeniably, the inadequacy of the current legislation, especially so in current times. The Sexual Harassment Bill must be passed to address the limitations of the current laws and to adequately protect victims. When the Bill is passed, survivors of sexual harassment will have a better chance at seeking justice as the Bill contains both a wider definition of sexual harassment and ensures better accessibility to justice by allowing cases to be brought to tribunals, where legal representation is not required as compared to court. It is high time that our lawmakers address the growing calls for the passing of the Bill especially so, as it's needs grow with each passing day.