How A Conversation About Coconuts Allowed Malaysians To Sue For Sexual Harassment
The Federal Court found this case exceptional and decided to create a new law.
By Katrina Khairul Azman — 15 Nov 2018, 05:31 PM
In a groundbreaking Federal Court case in 2016, it was finally made possible for Malaysians to sue perpetrators of sexual harassment
Describing sexual harassment as "the existence of a persistent and deliberate course of unreasonable and oppressive conduct targeted at another person... calculated to cause alarm, fear and distress to that person," it was held in Mohd Ridzwan Bin Abdul Razak v Asmah Binti Hj. Mohd Noor that a woman was sexually harassed by her superior at their workplace.
Through this case, the court introduced the tort of sexual harassment into Malaysia's legal system.
This judgment was a game changer in Malaysia, where there is no legislation specifically dealing with sexual harassment.
And it all started with a conversation involving coconuts.
In 2009, Asmah Haji Mohd Nor, a senior manager at Lembaga Tabung Haji, lodged a complaint to the company's CEO alleging that she had been sexual harassed by Mohd Ridzwan Abdul Razak, the General Manager of the Risk Management Department.
According to the judgment, first reported by Ask Legal earlier this year, Ridzwan had told Asmah that, "According to the elderly, in order to find out if a man's genitals are working, you have to tie it to a string and connect it to some coconuts."
"If the coconuts are lifted, it means that the genitals are 'good.' The sexual graph for men shows that men after 50 are useless. While men are in their 20s, the graph shoots up, goes down in their 30s, and shoots up again in their 40s," he added.
Some of the other inappropriate comments regularly made by Ridzwan include "F*ck you," "Do you wanna marry me or not? I have a lot of money," "You're always sick, which is why you should get married. Do you want a married man?"
While the Employment Act 1955 covered sexual harassment in the workplace, there was no law at the time that allowed victims of sexual harassment to bring their cases to court.
This meant that the decision to take action was left to employers.
Despite the fact that a psychiatric report linked Asmah's diagnosed major depression with Ridzwan's sexual harassment, an investigation by the company found that there was insufficient evidence for disciplinary action.
The Human Resources Department issued an administrative warning instead.
In a turn of events, Ridzwan decided to sue Asmah for defamation, claiming that her complaint had affected his reputation and standing as a good Muslim and as a senior member of the company. He also argued that the complaint led to his contract not being renewed.
Asmah counterclaimed, and the case made it all the way to the Federal Court.
Generally, the only body allowed to create new laws in Malaysia is Parliament.
In this instance, however, the Federal Court made an exception and decided that it was necessary to intervene.
"After mulling over the matter, we arrived at a decision to undertake some judicial activism exercise and decide that it is timely to import the tort of harassment into our legal and judicial system, with sexual harassment being part of it," said Suriyadi Halim Omar FCJ.
Thus, the tort of sexual harassment was recognised as a valid cause of action in the country, allowing Malaysians to bring sexual harassment cases to court.