KUALA LUMPUR, Oct 12 — The recent enactment of the Anti-Sexual Harassment Act 2022 was the culmination of a 30-year journey for Malaysia’s women’s movement.
According to a online presentation given during #ReviewTheBill campaign by women’s groups in the country, the draft for an anti-sexual harassment legislation was initiated by the Women’s Centre for Change (WCC), with input from the All Women’s Action Society (AWAM) back in the 1990s.
Since then, successive generations of activists and advocates from a coalition of women’s groups have engaged with the government to draft a Bill that would address sexual harassment. The coalition, known as the Joint Action Group of Gender Equality (JAG), comprises 14 women’s rights organisations in Peninsular Malaysia, Sabah, and Sarawak.
Given the passage of time, it was inevitable that the bill that was passed into law would no longer resemble the initial draft proposed decades ago.
What was surprising though was that the Bill, when it was eventually approved by the Dewan Rakyat last July and subsequently by the Dewan Negara in August, did not differ much from the draft that was withdrawn from a second reading in the House of Representatives last March, pending a review.
Back then, Pengerang MP Azalina Othman Said, who is also the chairwoman of the parliamentary special select committee on women, children affairs and social development was quoted in an article in The Star as saying: “We have agreed to ‘pause’ the Bill for the time being as the government wants to have a look at it again. Everybody at the meeting agreed that there is no point passing a half-baked law just for the sake of passing a law”.
Prior to that, JAG along with Engender and Young Women Making Change Malaysia, as well as opposition MPs had presented a memorandum with proposed amendments to the Bill at a virtual press conference on February 28 in conjunction with the #ReviewTheBill campaign.
Engender is a social enterprise committed towards advancing the empowerment of women and gender equality. Young Women Making Change Malaysia is a collective of young women in Malaysia looking to tackle the issue of sexual harassment through dialogue, awareness, and solidarity.
Proposed Amendments Excluded From Passed Bill
Their main proposed amendments were: organisational duties to prevent and address sexual harassment; extension of the definition of sexual harassment to recognise instances where the harassment is not directed at a particular individual but creates an offensive, hostile, or intimidating environment; and protection against victimisation for those who choose to report and seek redress.
These provisions were not included in the Bill that was passed in the Lower House last July. According to the Malaysian Lawyer blog, the Bill that was passed “only had very minor amendments from the first draft”, which was tabled for first reading in December 2021.
“There was an extensive process of negotiation. We had about 10 to 15 meetings with MPs, with the ministries, with the AG (Attorney-General) Chambers’ reps, engagement with the media, corporate sector, with different groups,” Karen Lai, programme director of WCC, told Ova back in August.
She was asked why despite the postponement of the reading of the bill, eventually none of the main proposed amendments were included in the proposed law.
“And we were asking for these revisions to be considered and there was back and forth, but the net result of that was that the revisions were not incorporated into the bill.”
Lai said strategic considerations also factored into their decision to support the passage of the bill without the amendments.
“For us, it came down to the strategy of the filing of the passing of the bill because if the bill were not passed this time, the next sitting is in October and we were informed that allocations have to be made in terms of the budget, financing of the tribunal, and all the processes and all that.
“So all things considered, we say we will continue to support the passing of the bill, but push for implementation and make sure the gaps are covered.”
Betty Yeoh, lead consultant for gender-based violence at Engender, said it came down to the lesser of two evils. “Weighing between the absence of having a specific law, to a legislation that may not be as comprehensive as we aimed for, we went for the current Bill so that it could start providing some form of redress.
“We will not rest here and will continue to seek ways to improve the legislation until it is comprehensive to protect victims /survivors and prevent sexual harassment,” she told Ova.
“We believe with an efficient monitoring system in place, the learning and findings from the implementation of the Act will lead towards targeted amendments to help strengthen the Act to become more comprehensive.”
Daniella Zulkifili, vice president of the Association of Women Lawyers (AWL), told Ova: “The Bill is not perfect, but we will continue to work with the Ministry of Women, Family and Community Development (KPWKM) on improving the contents and also to ensure that the Bill will be effectively implemented.”
She said that despite the fact that proposed amendments were not included in the Bill, they were brought up during the debate of the second reading, which was an encouraging sign.
Daniella added that organisational duties to prevent and address sexual harassment can still be included in the guidelines on operationalising the Bill and the action plan for its implementation, which caretaker Women, Family and Community Development Minister Rina Harun had committed to.
Participation In Multi-Sectoral Monitoring Committee
Daniella also pointed out that there will be an opportunity to work with the ministry on the multi-sectoral monitoring committee. “Ideally, this proposed monitoring committee would act as a check-and-balance to the administrator in overseeing the effective implementation of the Bill.”
Under the Act, KPWKM’s secretary general will function as administrator of anti-sexual harassment. The responsibilities of this role include formulating policies and guidelines, promoting prevention and awareness of sexual harassment, and administration of any matters related to sexual harassment prevention and awareness.
“The main objective for this committee would be to study and provide recommendations about how we can improve the implementation and/or recommendations for amendments to the legislation,” Daniella added.
“NGOs like JAG have been helping survivors for years, and we have seen how existing laws and systems are not sufficient — including situations where complaints are not taken seriously, fear of retaliation or victimisation, unsafe, hostile and intimidating environments and many others. We need to resolve these issues in order to really deal with and prevent sexual harassment.”
Lai concurred, saying their involvement in the committee will enable women’s groups to share data from the ground. “As an example, both WCC and AWAM sit on the national domestic violence committee that is chaired by the KSU (secretary-general) of the women’s ministry.
“So that is multi-sectoral in the sense that NGOs are there and various government agencies including hospitals, police and the courts and all that,” she told Ova. “It is there where we give feedback, including sharing statistics and situations and issues from the ground.”
She added that they could also play a role in monitoring the impact, assessing outcomes and strategising to cover gaps.
“With regards to the monitoring and evaluation of the execution of the ministry’s action plan, I think this (monitoring committee) is where we will also be on the lookout for the elements that are not included,” said Jernell Tan, information and communications officer at AWAM.
“From the definition of sexual harassment to stigmatisation, I think it will also be monitoring those related outcomes and seeing in what way we can, in terms of the current bill, see if they are actually gaps that we can pursue.”
Establishing Tribunal Takes Time
The protracted struggle to get the Bill tabled in Parliament gave it added meaning when it was finally approved. But while its successful passage felt like an end game, it actually marked the start of a new journey.
Once it is gazetted as an Act, the law would need to be properly implemented and people made aware of it so that its purpose of providing justice to sexual harassment survivors can be effectively realised.
Women’s rights lawyer Honey Tan told Ova that the Attorney-General’s Chambers should start drafting the rules governing the tribunal as soon as possible. “I believe this will take a longer time than establishing the tribunal. It is not clear whether there is to be an application process (akin to the application processes in relation to Suhakam Commissioners or Judicial Commissioners) in appointing members to the tribunal.”
Lai said putting together the tribunal will also take some time. “This is the reality of it. They need to identify members, put together appointments, so we hope that it can be done within a year.”
Tan from AWAM added that KPWKM had also committed to setting up the tribunal within one year. “Because the point of the bill being passed was to make sure that all the work that needs to be done for the tribunal would be in place as soon as possible. Not to mention, with the relevant budget allocations for the tribunal’s operations,” she explained. “
“It is essential in light of this intention, the ministry must also make sure the tribunal is set up within the timeline.”
Getting The Word Out
Once the tribunal is established, the next critical step is to raise awareness about it.
“Because you can have a tribunal but if nobody knows about it, then nobody has the means to access their rights. It means it is just a remedy on paper, which means there is no justice,” said Lai.
She added that the general public should also have realistic expectations about when the Act will be implemented. “We would need to allow for process, a certain passage of time, and the structure to be put into place. So that perhaps can be part of the awareness raising as well.”
Tan from AWAM said there are a number of avenues that various stakeholders in government can explore to educate the public about the tribunal, such as community engagements through events like roadshows.
“I think the minister herself mentioned roadshows. She didn’t mention when, but it looks like the ministry is very keen on pursuing that, so I think this is a very affordable one.”
Another suggestion would be to have government agencies that are providing services to the public to also spread the word, Tan told Ova, citing the National Population and Family Development Board’s (LPPKN) clinics across all states as an example.
Health care professionals who come into contact with patients who experience sexual harassment would be able to provide them with information about the Act and tribunal immediately, she said.
Tan added that the ministry should also capitalise on its Women’s Development Department (JPW), which handles the ministry’s Skuad Waja programme to reach out to the larger population.
Skuad Waja is a volunteer programme that aims to empower communities through psychosocial and counselling activities to promote awareness about criminal issues.
According to reports, the ministry said Skuad Waja has attracted over 100,000 volunteers.
“You also have the ADUNs (members of the state legislature). Let’s say they (people in their constituency) come to them with issues of sexual harassment or cases, the ADUN will be at good capacity to refer them to the tribunal.
“The ministry can also work with women’s groups like us because we do have our respective demographics,” Tan said, adding that the ministry should also reach out to associations for women entrepreneurs and single mothers.
Anti-Sexual Harassment Act Applicable To Women And Men
Yeoh from Engender said it was important to note that the Act is applicable to both women and men, as well as children. “All are at risk as proven by sexual harassment statistics.”
She said there should be wide publicity on the role and functions of the anti-sexual harassment tribunal through collaborations with civil society organisations (CSOs), especially women CSOs.
“Working with media (print and electronic) to further spread the information is paramount. Electronic billboards and messaging can be put up with the cooperation of town and city councils and the rural development ministry,” Yeoh told Ova.
She added that while it is important that information about the tribunal is shared, educating the community on the understanding of the issue of sexual harassment is also crucial.
Lai echoed this sentiment saying, “You also need to explain what sexual harassment is to people, help them to understand what kinds of behaviour are not acceptable, what amounts to an offence and all that.”
While AWL will continue to work with other groups in JAG to spread the message about the Act, Daniella said the responsibility to do this does not lie solely with CSOs.
“We need to have everyone in the public and private sectors, in various industries and spheres to keep raising awareness about the Act, and how people can benefit from it.”
During the tabling of Budget 2023 last Friday, caretaker Finance Minister Tengku Zafrul Aziz said that the anti-sexual harassment tribunal will be formed next year.
However, Prime Minister Ismail Sabri Yaakob announced the dissolution of Parliament last Monday, which means allocations for the tribunal will be suspended until the newly elected government re-tables the federal budget and includes allocations for it.