ANTI-SEXUAL HARASSMENT ACT 2022

Anti-Sexual Harassment LAWS OF MALAYSIA Act 840 ANTI-SEXUAL HARASSMENT ACT 2022 1 2 Laws of Malaysia Act 840 Date of Royal Assent ... ... 8 October 2022 Date of publication in the Gazette ... ... 18 October 2022 Publisher’s Copyright C PERCETAKAN NASIONAL MALAYSIA BERHAD All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means electronic, mechanical, photocopying, recording and/or otherwise without the prior permission of Percetakan Nasional Malaysia Berhad (Appointed Printer to the Government of Malaysia). Anti-Sexual Harassment LAWS OF MALAYSIA Act 840 ANTI-SEXUAL HARASSMENT ACT 2022 ARRANGEMENT OF SECTIONS Part I PRELIMINARY Section 1. Short title and commencement 2. Interpretation Part II TRIBUNAL FOR ANTI-SEXUAL HARASSMENT Chapter 1 Establishment and organization 3. Establishment of Tribunal 4. Members, terms of office and allowances 5. Disqualification 6. Secretary, officers and staff Chapter 2 Jurisdiction of Tribunal 7. Jurisdiction of Tribunal 8. Exclusion of jurisdiction of court 9. Determination of rules and procedure 3 4 Laws of Malaysia Chapter 3 Conduct of proceedings Section 10. Commencement of proceedings 12. Sittings of Tribunal 11. 13. 14. Notice of complaint of sexual harassment Right to appear at hearing Hearings to be closed 15. Tribunal may act in absence of party 16. Negotiation for settlement 17. 18. Reference to Judge of High Court on question of law Procedure where no provision is made Chapter 4 Award and order of Tribunal 19. Award of Tribunal 20. Order 21. Criminal penalty for failure to comply with award 22. Award of Tribunal to be final 23. Challenging award on ground of serious irregularity Part III ADMINISTRATOR OF ANTI-SEXUAL HARASSMENT 24. Administrator 25. Functions and powers of Administrator Part IV GENERAL 26. Power to make regulations 27. Special provision for police report under any written laws Act 840 5 Anti-Sexual Harassment LAWS OF MALAYSIA Act 840 ANTI-SEXUAL HARASSMENT ACT 2022 An Act to provide for a right of redress for any person who has been sexually harassed, the establishment of the Tribunal for Anti-Sexual Harassment, to raise awareness and to prevent the occurrence of sexual harassment, and to provide for related matters. [ ] ENACTED by the Parliament of Malaysia as follows: Part I PRELIMINARY Short title and commencement 1. (1) This Act may be cited as the Anti-Sexual Harassment Act 2022. (2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette, and the Minister may appoint different dates for the coming into operation of different parts or provisions of this Act. 6 Laws of Malaysia Act 840 Interpretation 2. In this Act, unless the context otherwise requires— “award” means an award made by the Tribunal in respect of any complaint or matter referred to it or any decision or order made by it under this Act; “prescribed” means prescribed by the Minister in the regulations made under section 26; “sexual harassment” means any unwanted conduct of a sexual nature, in any form, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is reasonably offensive or humiliating or is a threat to his well-being; “Minister” means the Minister charged with the responsibility for women, family and community development; “complainant” means a person who commences a proceeding before the Tribunal to have a matter dealt with by the Tribunal; “Administrator” means the Administrator of Anti-Sexual Harassment under section 24; “interlocutory order” means an order that— (a) is made pursuant to a complaint of sexual harassment to the Tribunal in the course of any proceedings of the Tribunal; and (b) is incidental to the principal object of that proceedings, and includes any directions about the conduct of that proceedings, but does not include any partial or interim order making a final determination in respect of that proceedings; “party” means a complainant or respondent; “respondent” means a person against whom a proceeding is commenced by the complainant; Anti-Sexual Harassment 7 “Tribunal” means the Tribunal for Anti-Sexual Harassment established under section 3. Part II TRIBUNAL FOR ANTI-SEXUAL HARASSMENT Chapter 1 Establishment and organization Establishment of Tribunal 3. There shall be established a tribunal to be known as the “Tribunal for Anti-Sexual Harassment”. Members, terms of office and allowances 4. (1) The Tribunal shall consist of the following members who shall be appointed by the Minister: (a) a President and a Deputy President to be appointed from amongst the members of the Judicial and Legal Service; (b) not less than five other members which shall comprise of— (i) persons who are members of or who have held office in the Judicial and Legal Service; or (ii) persons who are admitted as advocates and solicitors under the Legal Profession Act 1976 [Act 166], the Advocates Ordinance of Sabah [Sabah Cap. 2] or the Advocates Ordinance of Sarawak [Sarawak Cap. 110], and who have not less than seven years’ standing; and (c) not less than five other members, as may be determined by the Minister, who have knowledge of or practical experience in matters relating to sexual harassment. (2) Where the President is for any reason unable to perform his functions or during any period of vacancy in the office of the President, the Deputy President shall perform the functions of the President. 8 Laws of Malaysia Act 840 (3) The President, the Deputy President and the members of the Tribunal shall hold office for a term of three years and may be reappointed only for another term consecutively. (4) The President, the Deputy President or the members of the Tribunal may at any time resign his office by giving three months’ written notice to the Minister. (5) The Minister may at any time revoke the appointment of members of the Tribunal appointed under paragraphs (1)(b) and (c), and fill any vacancy in its membership. (6) The President and the Deputy President shall be paid such fixed allowances and other allowances as the Minister may determine. (7) T h e m e m b e r s o f t h e Tr i b u n a l a p p o i n t e d u n d e r paragraphs (1)(b) and (c) shall be paid a daily sitting allowance during the sitting of the Tribunal and such lodging, travelling and subsistence allowances as the Minister may determine. Disqualification 5. The President, the Deputy President and the members of the Tribunal appointed under subsection 4(1) shall be disqualified from being a member of the Tribunal if— (a) the person is adjudged bankrupt by a court of competent jurisdiction; (b) the person is certified by a qualified medical officer to be physically or mentally incapable of continuing office; (c) the Minister is of the opinion that the person has engaged in any paid office, commission or employment which conflicts with the duties of the person under this Act; (d) the person’s conduct, whether in connection with his duties as a member of the Tribunal or otherwise, has been such as to bring discredit to the Tribunal; Anti-Sexual Harassment 9 (e) the person has been convicted on, a charge in respect of— (i) an offence involving fraud, dishonesty or moral turpitude; (ii) an offence under any law relating to corruption; or (iii) any other offence punishable with imprisonment, in itself only or in addition to or in lieu of a fine, for more than two years; or (f) the person absents himself from three consecutive sittings of the Tribunal without leave of the President. Secretary, officers and staff 6. The Minister shall appoint— (a) a Secretary to the Tribunal; and (b) such number of other officers and staff of the Tribunal as may be necessary to carry out the functions of the Tribunal. Chapter 2 Jurisdiction of Tribunal Jurisdiction of Tribunal 7. (1) The Tribunal shall have jurisdiction to hear and determine any complaint of sexual harassment made by any person. (2) The complaint of sexual harassment made under subsection (1) shall refer to sexual harassment which occurs after the coming into operation of this Act. (3) A complaint of sexual harassment referred to the Tribunal under this Act is subject to the Limitation Act 1953 [Act 254]. 10 Laws of Malaysia Act 840 Exclusion of jurisdiction of court 8. (1) Where a complaint of sexual harassment is lodged by any person to the Tribunal, the issues in dispute in that complaint of sexual harassment, whether as shown in the initial complaint or as emerging in the course of the hearing, shall not be the subject of proceedings between the same parties in any court unless— (a) the proceedings before the court were commenced before the complaint of sexual harassment was lodged with the Tribunal; (b) the complaint of sexual harassment involves any conduct constituting a crime under the provisions of any written law; or (c) the complaint of sexual harassment before the Tribunal is withdrawn or struck out. (2) Where paragraph (1)(a) applies, the issues in dispute in the claim of sexual harassment to which those proceedings relate, whether as shown in the initial claim or emerging in the course of the hearing, shall not be the subject of proceedings between the same parties before the Tribunal unless the claim of sexual harassment before the court is withdrawn or struck out. Determination of rules and procedure 9. (1) The proceedings of the Tribunal shall be conducted in accordance with such procedure as may be determined by the Tribunal. (2) The President shall cause the procedure determined under subsection (1) to be reduced into writing and published in such a manner as the President deems fit. (3) In conducting the proceedings under subsection (1), the Tribunal shall have the powers to— (a) make an interlocutory order; (b) determine the relevancy, admissibility and weight of any evidence; Anti-Sexual Harassment 11 (c) take evidence on oath or affirmation and for that purpose a member of the Tribunal may administer an oath or affirmation; (d) order the provision of further particulars in a statement of complaint of sexual harassment or statement of reply; (e) order the preservation and interim custody of any evidence for the purposes of the hearing; and (f) summon the parties to the proceedings or any other person to attend before the Tribunal to give evidence or to produce any document, record or other thing in his possession or otherwise to assist the Tribunal in its deliberations. (4) A summons issued by the Tribunal under this section shall be served and enforced as if it were a summons issued by a court. (5) The Tribunal shall determine the complaint of sexual harassment on the balance of probabilities. Chapter 3 Conduct of proceedings Commencement of proceedings 10. Any person may lodge a complaint of sexual harassment under this Act with the Tribunal in a prescribed form together with a prescribed fee. Notice of complaint of sexual harassment 11. Upon a complaint of sexual harassment being lodged under section 10, the Secretary to the Tribunal shall give a written notice in the prescribed form to the complainant and the respondent of the details of the day, time and place of the hearing. 12 Laws of Malaysia Act 840 Sittings of Tribunal 12. (1) Each sitting of the Tribunal shall be determined by the President and shall comprise of a panel of three members of the Tribunal as follows: (a) the President or the Deputy President appointed under paragraph 4(1)(a), or any other member of the Tribunal appointed under paragraph 4(1)(b), as a Chairperson; and (b) any other two of the members of the Tribunal appointed under paragraph 4(1)(c). (2) The panel for each sitting of the Tribunal in subsection (1) shall comprise of at least a woman. (3) The Tribunal may sit in one or more sittings on such day and at such time and place as the President may determin