Sexual harassment in Malaysia

Although sexual harassment happens to both men and women, women are more often victims, especially in circumstances and locations where "patriarchy is deeply ingrained as a cultural value, and the men see nothing wrong in sexually harassing women".[4] This is consistent with the statistics from the Royal Malaysian Police (PDRM) between 2013 and 2017, where out of a total of 1,218 reported sexual harassment cases, 79 percent involved victims who were women while 21 percent involved male victims.[3]

In 1987, the Women's Section of the Malaysian Trades Union Congress (MTUC) conducted the first known survey on sexual harassment in the country. It was reported that 11 to 90 per cent of the female respondents experienced sexual harassment in the workplace.[1] More recently, in the 2019 YouGov Omnibus survey, over a third or 36 per cent of Malaysian women have experienced sexual harassment, compared to one in six (17 per cent) men. The survey which sampled 1,002 Malaysians showed that of those who faced harassment only half (53 per cent) reported or told someone about what they had to endure.[5][6]

Sexual harassment at the workplace is therefore a major problem in Malaysia.[7] The prevalence of sexual harassment in Malaysia has been studied across different settings; within the civil service,[8][9][10] various public and private workplaces such as hospitals,[11] hotels,[12] small and medium businesses,[13] as well as various higher education institutions,[14] both public [15][16] and private universities.[17] There are also sub-groups within the general Malaysian population who are more vulnerable to sexual harassment, such as adolescents,[18] refugees,[19] clerical workers,[20] staff in the service sector (hotels), sports practitioners,[21][22] female plantation workers,[23] LGBT[24] and migrant workers.[25]

According to the 2017 survey conducted by PeopleACT, online sexual harassment was the second highest type of cyberharassment experienced by people. Out of 522 respondents, 89 stated that they have been sexually harassed online. Twice as many women (20.9 percent) experienced online sexual harassment compared to men (9.8 percent).[26]

With increasing use of the internet as a side effect of the COVID-19 pandemic, All Women's Action Society Malaysia (AWAM) stated there were many incidents of online sexual harassment that has come to their attention prior and during the movement control order. Sexual harassment cases make up 18.5 per cent of calls that comes through AWAM helpline, and from that category, online sexual harassment accounts for 41.7 per cent of these cases. As more people are resorting to online media and communications as a result of social distancing, many are taking advantage of online anonymity and thus express their feelings of discontent through sexist jokes, comments and in some cases, sexual harassment.[27]

In 1999 the Ministry of Human Resources (MOHR) launched the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace.[28] The aim is to provide guidelines to employers on the establishment of in-house mechanisms at the company level to prevent and eradicate sexual harassment at work. According to the code, sexual harassment is defined as:

"Any unwanted conduct of sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment;

1. that might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on his/her employment; or
2. that might, on reasonable grounds, be perceived by the recipient as an offence or humiliation, or threat to his/her well-being, but has no direct link to his/her employment."

The code illustrates the following categories of behaviour and their possible examples:[13]

While the Code has been the first concrete step towards recognising the seriousness of the issue, it is a voluntary code and is not legally binding. According to the Centre for Public Policy Studies, less than 0.1% of registered and active companies had adopted the Code as of 2010.[29] The other shortcoming was that the code did not give rise to a cause of action for the victim against the harasser.

It is not uncommon to hear of survivors losing their jobs after lodging a sexual harassment complaint.[30] If a person's employment is terminated as a result of their bona fide complaint of sexual harassment, the staff is only entitled to make a representation to the Industrial Department under section 20 of the Industrial Relation Act 1967 for unfair dismissal.[31]

As such, since 2004, the MOHR had proposed several amendments to the Employment Act 1955 (EA) to give the needed legal backing to the Code of Practice. Employment (Amendment) Act 2012 (Act A1419) came into force in April 2012, which included an amendment to include Part XVA into the Employment Act 1955 (Act 265). This amendment outlines the manner in which employers should deal with complaints of sexual harassment at the place of work. However, this amendment did not address the rights and liabilities of the harasser and the victim.[32]

The case of Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor [2016] 4 MLJ 282 [33] is the first case where the Malaysian High Court has awarded damages to a victim of sexual harassment in the workplace and has opened the door for survivors who wish to bring civil suits against the perpetrators.[34]

Background

Asmah was a senior manager of The Pilgrimage Fund Board (Malay: Lembaga Tabung Haji, or LTH), where she reported to Ridzwan, the General Manager of the Risk Management Department. In July 2009, she lodged an internal complaint to the CEO claiming sexual harassment by Ridzwan based on his repeated vulgar remarks, dirty jokes of a sexual nature, use of rude words in emails and repeated offers to make Asmah his second wife. The company initiated an inquiry but found that there was insufficient evidence to warrant disciplinary action against Ridzwan, however a strong administrative reprimand was given to him and his contract with LTH was subsequently not renewed. As for Asmah, she was transferred to another division within LTH as soon as the investigation commenced, where she was assigned to an unrelated role from her original job description, and she eventually left the organisation.[33]

Litigation

In December 2011, two years after the internal inquiry had concluded, Ridzwan sued Asmah for defamation and also sought a declaration that he had not sexually harassed her. He claimed that Asmah's complaint had defamed him and had affected his reputation and standing as a Muslim. Ridzwan also sought for a public apology, as well as general and aggravated damages, interest and costs. Asmah filed a defence and counterclaim, where she disclosed in detail the sexual harassment elements suffered under Ridzwan.[35] She pleaded that her complaint was upheld by LTH given the reprimand that was issued, and denied the allegations of defamation. Asmah also counterclaimed for damages for sexual harassment, alleging that she had suffered emotional and mental stress and trauma.

Judgement

The High Court dismissed Ridzwan's claim and allowed Asmah's counterclaim, awarding her RM100,000 and RM20,000 in general and aggravated damages in 2012.[34] However, the High Court failed to identify the type of tort the counterclaim was based upon, and Ridzwan appealed. The Court of Appeal upheld the finding of the High Court Judge but held that the cause of action was founded on the tort of intentionally causing nervous shock.[33] Thus, Ridzwan took his case to the Federal Court, as the apex court in Malaysia and the final level of appeal.

In their summary, the Federal Court stated their decision to undertake some judicial activism and decided that "it is timely to import the tort of harassment into our legal and judicial system, with sexual harassment being part of it”, thus creating a new law in this case by classifying sexual harassment as a tort.[36]

The elements of the tort of sexual harassment are as follows:[37]

1. Persistent and deliberate course of unreasonable and oppressive conduct;
2. The conduct was targeted at another person; and
3. The conduct was calculated to cause alarm, fear and distress to the other person.

The Federal Court also stated that it is not a legal requirement for the allegations to be corroborated by a third party. The need for corroboration would render the victim helpless since most harassment would take place in private. This decision is seen as a major triumph for survivors of sexual harassment as current legal protections places a high burden of proof on the victims, as seen with the Penal Code and the Communications and Multimedia Act 1998.[34]