Historically, women in Malaysia were not protected against sexual harassment. Malaysian laws do not provide adequate protection for women and are usually slanted against women.(1) Unlike the United States Constitution which protects men and women equally, the "Malaysian Federal Constitution . . . does not mention equality in terms of sex or gender."(2) The Malaysian government has introduced bills aimed at this disparity, such as the Women and Girls Protection Act, but has lacked the votes to enact the proposed legislation.(3) Women activists have attempted to alter the law and the public's perception regarding women's rights, but have only achieved minimal advancements. "[L]aws that discriminate against women are still on the statute books, although women's groups, who have been lobbying for change have managed to chalk up successes in revamping laws on rape and domestic violence."(4) Yet, no sexual harassment laws exist in Malaysia,(5) even though women comprise forty-seven percent of the workforce.(6) An obstacle that further hinders change is the lack of representation in government, where women represent only eight percent of the Malaysian Parliament.(7) Recently, the Malaysian Judiciary addressed and circumvented this problem with a landmark decision which continued a positive trend for women in the area of sexual harassment.
"The Malaysia Industrial Court, relying on [United States] case law, decided in favor of a former hotel executive who claimed she was sexually harassed by her boss, in what Malaysian lawyers are calling the first case of its kind in the country."(8) The facts of the case, as reported by The Asian Wall Street Journal, were that Ms. Lilian Therera De Costa was forced to quit her job in 1994, "after resisting the advances of Sulkifli Mokti, a part owner of the Mint Hotel being built in Kuala Lumpur."(9) The harassment "began Dec[ember] 31, 1993, when [Ms. De Costa] went to Mr. Zulkifli's office to wish him a happy New Year. 'I extended my hand to greet him and to wish him Happy New Year. He just pulled me to him and gave me a kiss on the lips. He leaned forward and pulled me suddenly to him' she said."(10) Ms. De Costa objected to the treatment, and Mr. Zulkifli "promised not to do it again."(11) A second incident occurred in February 1994, when after a meeting, "he put his arms around her waist, fondled her breasts and kissed her."(12) Ms. De Costa did not return to work for two weeks, and "when she returned, Mr. Zulkifli harassed and criticized her, finally asking her to resign."(13)
The Industrial Court found that Ms. De Costa's evidence fulfilled a "balance of probabilities" test and the fact she did not report the acts to the police or her husband did not mean her statements were less credible.(14) This represents a tremendous social transformation for Malaysia, since previously no sexual harassment law existed and a victim's credibility was lessened by not informing a male relative of the incident.(15) Judge Lim Heng Seng, "the chairman of the Industrial Court, noted that Madam De Costa's case was straight-forward, direct and convincing. Her evidence before the start of the trial last year and her [present] testimony were consistent. In contrast, the firm made significant shifts in its case as it unfolded."(16) Using its balancing test, Ms. De Costa's testimony tipped the legal scales in her favor, winning the first ever sexual harassment suit in Malaysia.(17) The Court, as of March 10, 1997, has yet to decide whether to award damages or to reinstate Ms. De Costa to her job.(18)
This case parallels the Anita Hill sexual harassment charge against Supreme Court Justice nominee Clarence Thomas. Although, this was not the first sexual harassment case in the United States, it generated an extensive amount of press, and empowered women to fight back against sexual harassment. Both countries began removing stereotypical behavior and assessments of women in sexual harassment charges because of these incidents, a critical process since Ms. De Costa's credibility was an important factor in her case, just like Ms. Hills' level of credibility in the press during the Congressional nomination hearings.(19) Malaysian women's groups anticipate positive effects as a result of Ms. De Costa's landmark case, including changes in the country's laws and perceptions on sexual harassment. Hopefully, changes in Malaysia will mirror the beneficial affects Anita Hill's allegations caused in the United States, such as increasing awareness and altering the public's misconceptions about sexual harassment. Lawyers hope the case will encourage more sexual harassment victims to file legal actions against harassing employer in Malaysia.(20)
An immediate effect of the landmark case was a change in the legal and social requirements for proving a case of sexual harassment in Malaysia. The Courts no longer require "the victim to perform theatrics or become hysterical after being molested" which before constituted an integral component of the case.(21) A women's credibility is now measured by real evidence, instead of outdated and subjective stereotypes. Several non-governmental organizations (NGOs) suggested the "government should conduct a national study to formulate a new law on sexual harassment in the workplace for both sexes."(22)
The Malaysian Trade Unions Congress (hereinafter MTUC) incorporated a sexual harassment clause in its collective agreements.(23) MTUC Secretary-General Rajasekaran declared it is the "employer's duty to prevent sexual harassment in the work place."(24) He plans to create a nation-wide sexual harassment policy, to be used by all industries, guaranteeing a safe work environment, free of sexual harassment.(25) A final suggestion includes educating the public of their rights, so a woman knows that if she files a suit, she will be heard and not labeled a loose woman or a joke in the court room.(26)
Armed with court precedent and the government's increased concern about sexual harassment, perhaps women in Malaysia will achieve some form of protection and award under Malaysian laws when sexually harassed.
1. Focus, New Straits Times, Dec. 10, 1996, available in WESTLAW, File no. 1996 WL 1229775.
2. Id.
3. Id.
4. Malaysia-Women: Discrimination in the Workplace Still Strong, Global Information Network, Jan. 3, 1997, available in WESTLAW, Inter Press Service, File no. 1997 WL 7073032.
5. Ruling in Malaysia on Sex Harassment is First of its Kind, Associated Press Service, International News, Asian Wall St. J., Jan. 9, 1997, available in WESTLAW, File no. 1997 WL-WSJA 3794416.
6. Global Information, Jan. 3, 1997, supra note 4. Most women are channeled into lower-paying jobs, with no advancement in the electronic, footwear and textile industries. Additionally, one-forth of women are illiterate. In rural areas, only men, have economic power because only men have access to land and credit. Id.
7. Malaysian Women Wins Country's First Ever Sexual Harassment Suit, West's Legal News, Jan. 10, 1997, available in WESTLAW, Employment Law: Sexual Harassment, File no. 1997 WL 6486.
8. Id.
9. Ruling in Malaysia on Sex Harassment is First of its Kind, Associated Press Service, International News, Asian Wall St. J., Jan. 9, 1997, available in WESTLAW, File no. 1997 WL-WSJA 3794416.
10. Id.
11. Id.
12. Id.
13. Id.
14. Sex Pest Case Against Employer Succeeds, South China Morning Post, Jan. 9, 1997, available in LEXIS, News Library.
15. See id. and see Focus, New Straits Times, Dec. 10, 1996, available in WESTLAW, File no. 1996 WL 1229775.
16. Failure to Report Rape Won't Reduce Credibility, Straits Times (Singapore), Jan. 9, 1997, available in LEXIS, News Library.
17. Id.
18. Id.
19. George P. Fletcher, With Justice for Some 116 (1995).
20. Failure to Report Rape Won't Reduce Credibility, Straits Times (Singapore), Jan. 9, 1997, available in LEXIS, News Library.
21. Id.
22. Call for Study to Draft New Law on Sexual Harassment, Straits Times (Singapore), Jan. 15, 1997, available in WESTLAW, File no. 1997 WL 7203174
23. Union Pacts to Cover Sexual Misconduct, Singapore Straits Times, Jan. 13, 1997, available in WESTLAW, File no. 1997 WL 7203174.
24. Id.
25. Id.
26. Id.