High time for legal, social reform and enactment of sexual harassment legislation

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The Malaysian Bar is deeply concerned about the complaints of sexual harassment in the legal workplace.

The Malaysian Bar, comprised currently of over 54% women, has always spoken out against any form of violence and discrimination against women and therefore takes this matter very seriously.

The Malaysian Bar also recognises that the very nature of sexual harassment would mean that there may be even more cases than are made known or published.

As it stands, there are existing provisions in the Employment Act 1955 as they relate to sexual harassment in the workplace and in the Penal Code as they relate to the crime of sexual harassment.

However, there is still a lot more that can be done in tackling sexual harassment.

First, the Malaysian Bar calls for the amendment of Section 509 of the Penal Code to include sexual harassment.

The Malaysian Bar also reiterates its call for the enactment of legislation to specifically govern sexual harassment to eliminate sexual offences in a holistic manner to effectively combat the multifarious and nuanced issue of sexual harassment.

Internally, the Malaysian Bar has in place a Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace, adopted at the 59th annual general meeting of the Malaysian Bar, which created a mechanism for the resolution of complaints for members of the Bar and pupils within the legal profession, and in dealings with the judiciary and the courts. However, reports of complaints to the Bar Council have been few and far between.

The Malaysian Bar has also included sexual harassment as a defined “misconduct” in our proposed legal profession bill, which we are hoping to get tabled and passed in Parliament this year. Such a move would mean that lawyers would also face disciplinary action for allegations of the misconduct of sexual harassment and could face punishments including fines or being struck off the roll.

READ MORE:  Group welcomes announcement of sexual harassment tribunal

Pending the passing of our bill, the Bar Council is committed to taking steps to put in place measures to deal with this matter, including:

  • formulating a model sexual harassment policy for law firms
  • making ruling(s) pursuant to Section 94(3)(o) of the Legal Profession Act 1976 to require employers to execute a workplace pledge (as done in other international jurisdictions such as Australia)
  • making available walk-in centres for victims to lodge complaints
  • taking steps to protect victims from dismissal (would require an amendment of the Employment Act 1955)
  • holding seminars and training to raise awareness among members of the Bar and pupils

In a concerted effort to push this agenda forward, the Bar Council in our recent meeting, constituted for the first time, the women’s rights committee. It is hoped that this committee will be able to spearhead reforms in this area, in addition to other concerns, as they relate to women in the legal workplace.

The Malaysian Bar calls upon anyone who has fallen victim to such behaviour at the workplace, not to be afraid, but to seek help from other senior colleagues in the firm or in the profession, or to inform the Bar Council.

Alternatively, one can escalate the complaint to the authorities for investigation, or pursue mechanisms of complaints under the Employment Act 1955.

With the Federal Court, in the 2016 case of Mohd Ridzwan bin Abdul Razak v Asmah binti Hj Mohd Nor, importing the tort of harassment into our legal and judicial system, with sexual harassment being a part of it, it is high time for national legal and social reform in this regard.

READ MORE:  Malaysia must urgently ratify ILO convention on violence, harassment

The Malaysian Bar stands with all affected parties and will continue to pursue the facilitation of a safe and healthy environment that is free from unwanted harassment and intimidation of a sexual nature, for all our members.

Salim Bashir is president of the Malaysian Bar

This piece dated 16 June 2020 is reproduced from here and has been edited for style only.

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