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Before 2016, Malaysians had very little legal protection against sexual harassment outside of the workplace but one bold woman’s decision to stand up against her harasser opened up the doors to future victims seeking justice against their harasser.
The strange twist in this case, though, was that it only happened because the harasser decided to sue the victim.
In 2009, Mohd Ridzwan Abdul Razak and Asmah Mohd Nor were both employees at Lembaga Tabung Haji. As Ridzwan was the general manager of the Risk Management Department, he was the superior to Asmah who was senior manager in the same department.
One day in July 2009, she officially lodged a complaint to the CEO of the company complaining of sexual harassment by Ridzwan.
About a month later, the company set up a committee of inquiry on the complaint but after two weeks, there was insufficient evidence to warrant disciplinary action.
However, the Human Resources Department of the company decided to issue a strong administrative reprimand to Ridzwan and Asmah was granted transfer to a different department.
While one may assume this would be the end of it, Ridzwan was enraged by the complaint and decided to sue the Asmah- two whole years after the incident!
In December 2011, Ridzwan commenced legal action against Asmah on the grounds that her sexual harassment complaint was defamatory.
He claimed that Asmah’s complaint affected his “reputation and standing as a Muslim” and affected the company’s decision to renew his contract.
He also demanded a public apology in addition to aggravated and exemplary damages.
It turns out that after the inquiry, Ridzwan had actually sought for disciplinary action to be taken against his subordinate for lodging a complaint without any proof – to which the company dismissed.
No surprises, but Ridzwan never apologised to Asmah for the allegations.
J’accuse! (again x2)
Instead of simply fighting the charges, Asmah decided to countersue Ridzwan seeking general, aggravated and exemplary damages from him for the sexual harassment and relied largely on a psychiatrist’s report to explain the repercussions of the harassment.
Asmah’s complaints included repeated offers to be the Ridzwan’s second wife, using dirty words in office e-mails and making sex-oriented jokes in front of his subordinates which included strange analogies on virility using coconuts.
[TRIGGER WARNING] Here’s some of the vulgar words allegedly uttered by Ridzwan as revealed in the court documents:
“Kalau cari husband cari yang beragama, bertanggungjawab, macam I, You kena buat sembahyang istikharah dan kalau you mimpi, you akan berjimak dengan orang tu.”
“Ingat tak seorang Cina masa di Bank dulu? Kalau you pergi meeting, you kena tebalkan
muka, you kena ada strong “ball.”
“Kalau you nak tahu ‘benda’ lelaki tu berfungsi ke tak ikut orang-orang tua, ikat ‘benda’ tu dekat tali. Tali tu sambungkan dengan buah kelapa. Kalau buah kelapa tu terangkat, maksudnya ‘benda’ tu ‘good’.”
“Sexual graph of a person, men after 50 is no use. Kalau 20 it shoot up. 30 graf turun. When 40, it shoots up again”
‘F-U-C-K’ (was the appellant’s laptop password)
“You nak kahwin dengan I tak, I banyak duit tau”
“Would you prefer married man”
“You ni selalu sangat sakit. You kena kahwin tau. You nak tak laki orang”
With that bad taste in our mouth, it’s a relief to find out that the High Court dismissed the Ridzwan’s claim and awarded Asmah RM100,000 and RM20,000 in general and aggravated damages in 2012.
At this point, the psychological damage of the harassment on Asmah is made abundantly clear.
The court documents described the victim as emotionally vulnerable as she suffered from migraines and leg pains, making her more susceptible to being adversely affected by the vulgar and sexually explicit remarks.
The High Court even held that Ridzwan’s sexual harassment to his subordinate led to Asmah suffering major depression.
Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor
Unhappy with the judgement, Ridzwan appealed to the Federal Court with the following question:
Is there a valid cause of action for a civil claim on the grounds of sexual harassment under the existing laws of Malaysia?
He’s not wrong there. There is no legal penalty on sexual harassment – even the 2012 amendments to the Employment Act places the onus on employers, not the harasser, to deal with sexual harassment in the workplace.
Taking note the importance of providing legal defence for sexual harassment into the juidical system, five-judge Bench chaired by the Chief Judge of Malaya, Tan Sri Zulkefli Ahmad Makinudin dismissed Ridzwan’s appeal and held that it was time to import the tort of sexual harassment into Malaysia’s legal system.
Sexual harassment is a very serious misconduct and in whatever form it takes, cannot be tolerated by anyone. In whatever form it comes, it lowers the dignity and respect of the person who is harassed, let alone affecting his or her mental and emotional well-being. Perpetrators who go unpunished, will continue intimidating, humiliating and traumatising the victims thus resulting, at least, in an unhealthy working environment.Tan Sri Suriyadi Halim Omar, Federal Court Judge.
Since there’s no law on sexual harassment, the Federal Court introduced a new law called tort of sexual harassment into our legal and judicial system.
However, this is a tort law, which in very basic terms means a “wrongdoing” that can either give you a reason to sue, or get sued. (Since we’re no legal experts, we’ll leave this AskLegal article (HERE) on tort for your reference.)
How it kicked the door open for Malaysian sexual harassment survivors
This landmark ruling essentially kicked the door open for Malaysian sexual harassment survivors to sue their harassers and claim damages from an alleged perpetrator.
Most importantly, though, the Federal Court stated that it is not a legal requirement for the allegations to be corroborated by a third party because it would render the victim helpless since most harassment would take place in private.
This decision is considered a great triumph for sexual harassment survivors as activists have been highly critical of current legal protections such as the Penal Code and Communications and Multimedia Act 1998 that place a high burden of proof on the victims.
It also broadened the definition of sexual harassment as the only definition available under current Malaysian laws is in the Employment Act which, unsurprisingly, covers only conduct in the workplace.
Moving forward, Malaysian courts will have to scrutinize all evidence before them and arrive at a factual finding when determining a claim of sexual harassment.
While Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor is indeed a great moment in the Malaysian justice system, it took 7 years from her initial complaint and 5 years of legal battle while dealing with depression for Asmah to finally close this chapter – highlighting the urgency of a Sexual Harassment Bill which has been in limbo for 9 years.
According to Women’s rights group Joint Action Group for Gender Equality (JAG), the Sexual Harassment Bill is pertinent in bringing changes that protect survivors while punishing the harassers, among which include:
- a clear definition of sexual harassment based on international best practice
- minimum standards and oversight mechanisms of organisational obligations
- changes to the Criminal Procedure Code (CPC) that would render court process more sensitive to survivors of sexual offences
The Sexual Harassment Bill was initially scheduled to be tabled during the March 2020 Parliamentary session before the abrupt government change. Current Women, Family and Community Development Minister Datuk Seri Rina Harun told New Straits Times in June that the Bill will be tabled “hopefully the next sitting (in November) or early next year.”
If you or someone you know needs help, reach out to any of the organisations below:
Women’s Aid Organisation (WAO) has extended their hotline to 24 hours and provide advice and support virtually through the phone and WhatsApp. A legal officer will be on standby to assist as well.
Hotline: 03-7956 3488
Or WhatsApp TINA: 018-988 8058
All Women’s Action Society (AWAM) can be reached through email or messaged on Facebook and Twitter. They also have counsellors who are willing to do Zoom or Skype calls with clients if face-to-face interaction is preferred.
Twitter: @AWAMMalaysia (HERE)
Facebook: @AWAMMalaysia (HERE)
She puts the pun in Punjabi. With a background in healthcare, lifestyle writing and memes, this lady's articles walk a fine line between pun-dai and pun-ishing.