OCTOBER 8 — After more than two decades of advocacy by women’s rights groups and NGOs, Parliament finally passed the Anti-Sexual Harassment Act 2022 (ASHA) in October 2022 which came into effect in March 2023.

Under ASHA, sexual harassment is any unwanted sexual behaviour, be it verbal, non-verbal, visual, gestural, or physical, that is reasonably offensive or humiliating or threatens an individual’s well-being.

Unlike the Employment Act 1955, which solely covers workplace sexual harassment, ASHA provides a remedy for anyone who has been a victim of sexual harassment in any domain of life. 

Legal scholars are critical of ASHA, however, as it does not explicitly specify sexual harassment as a criminal offence, and offenders do not face penal sanctions.

What ASHA provides, among others, is a platform for victims of sexual harassment to seek justice by establishing the Tribunal for Anti-Sexual Harassment (TASH). 

In essence, TASH is an accessible and cost-effective alternative to the civil courts for victims seeking redress for sexual harassment.

TASH is empowered to hear and determine complaints relating to sexual harassment as defined under ASHA. 

It does not have investigatory powers. It focuses instead on adjudicating cases and granting appropriate remedies.

Following a complaint, a closed hearing will be held before a panel of three members. Legal representation for parties is generally not permitted unless legal complexities arise. Witnesses and evidence are permitted.

Parties can negotiate for a settlement, and if successful, the settlement agreement will be recorded before TASH. Parties are bound by the agreement.

Otherwise, if TASH finds in favour of the complainant, it may issue an award with one or more of the followings:

>  an order for a written or public apology from the respondent;

>  an award of compensation of up to RM250,000.00; and/or

>  a mandatory participation in programmes that TASH deems necessary.

Failure to comply with the award is punishable with a fine (up to twice the compensation amount), imprisonment (up to two (2) years), or both. 

The penalty is for non-compliance with TASH award, not for the alleged sexual harassment.

Parties may appeal against TASH’s decision to the High Court, but only if serious irregularities affect the decision.

TASH was first convened sometime in May last year to hear the first complaint it received. 

A female employee alleged in her complaint that her male employer had sexually harassed her physically. The complaint was disposed of within the prescribed 60-day time frame.

After considering the evidence, TASH was satisfied that the complainant had proved her case that her employer had sexually harassed her.

TASH ordered the respondent – that is, the complainant’s employer – to issue a statement of apology to the complainant, as requested by her.

TASH’s decision has been heralded as a “monumental step towards justice and societal change” and a “milestone in the fight towards accessibility to justice”.  

TASH, according to All Women’s Action Society (Awam) senior advocacy officer Amanda Shweeta Louis, “has proved itself to be a powerful and cost-effective way to seek justice while holding perpetrators accountable”. 

TASH has since handled 54 cases, with 22 decided in favour of complainants which were resolved within the prescribed 60 days.

But despite the commendations, TASH is but a tribunal – that is, a quasi-judicial body. Penal sanctions, such as imprisonment or criminal fines, are exclusively within the purview of courts and not tribunals. The powers of tribunals do not extend to the imposition of criminal penalties.

It is therefore curious how the proposed Anti-Bullying Tribunal, which would mirror TASH, could serve as a deterrent for would-be perpetrators as asserted by Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said.

While the proposed tribunal may mirror TASH in providing “faster resolution of complaints [leading] to greater awareness and fewer reported cases”, it may lack the jurisdiction and power to impose deterrence penal sanctions against perpetrators.

It’s food for thought for the minister and the government.

*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.