The Malaysian Bar Council’s internal sexual harassment complaints mechanism is faulty. It is incapable of holding inquiries. It cannot do the very thing it was designed to do.
It took the Bar 13 long years to realise this. To put things in perspective, 13 years is the time it takes to raise a child from birth to the age of adolescence. Yet, in the same amount of time, the Bar persistently failed to realise that it had adopted a wholly unworkable mechanism.
Out of the many ironies of this perplexing bungle, perhaps the greatest is that in these 13 years, the Bar has repeatedly endorsed the mechanism, even doing so again as recently as June 2020.
Mechanism faulty, victim cries foul
But what really takes the cake is that the mechanism’s faultiness was not first brought to light by the Bar, but by a victim.
Why the Bar, which has time and time again reiterated its commitment to stamp down on sexual harassment within the legal profession, saw fit to keep mum about the failings of the mechanism is absolutely baffling. This is at best, indifference; at worst, neglect.
Victims, both present and future, deserve the right to know that the mechanism does not work so that they will not waste time pursuing complaints through an unavailing mechanism. Complementary to this right is that it’s an absolute responsibility on the part of the Bar to inform. Had nobody called out the faulty mechanism, was the Bar really intending to paper over the cracks and keep up the charade? The dearth of logic of this is extraordinary, to say the least.
Victims who finally muster the courage and make the often difficult decision to lodge a complaint will have also made the conscious decision to put a lot on the line. This includes running the risk of being disbelieved and being hit with defamation suits. On top of that, victims will also have to live in the constant fear of retaliation, fear of losing their credibility, fear of being branded a troublemaker, fear of being labelled an attention-seeker and fear of being sidelined in the profession. Victims will have to deal with all these while trying to heal from the emotional wounding of an experience that is by its very nature humiliating and traumatising. All these are just the tip of the iceberg. Now imagine endeavouring to pursue justice through a system that is not only known to fail victims, but also retraumatises them.
Perhaps what the Bar lacks in logic, it can make up for by showing some humanity and compassion. The Bar can start by issuing an official statement to unequivocally state whether the complaints mechanism is now defunct, and the reasons so. This is the least the Bar can do now.
Wheels of justice cannot turn without a working engine
Following the recent exposé of the virtually non-functioning complaints mechanism, victims are now being told to lodge complaints with the Advocates and Solicitors Disciplinary Board (ASDB) instead. The seemingly haphazard fashion in which the Bar prescribes avenues for victims to pursue complaints may suggest many things, but what it certainly does not suggest is that the Bar has taken meaningful and efficacious steps in response to an issue which it has time after time so vehemently denounced and expressed “deep concerns” over.
Telling victims to now lodge their complaints through a different route is really to miss the woods for the trees. The very reason the complaints mechanism cannot hold inquiries is because the Bar has decided that it lacks legal standing to carry out inquiries against lawyers and that only the ASDB is empowered to do so. Before the wheels of justice could even begin spinning for the complainant who lodged a complaint under the faulty mechanism, the wheels had been halted on a legal technicality. Referring victims to a different avenue, that is the ASDB, reflects a brazen failure by the Bar to recognise that in a similar vein, any finding of wrongdoing by the ASDB can be easily challenged on legal technicalities too, given that the Legal Profession Act does not currently state that sexual harassment is a form of professional misconduct.
If the ASDB can handle sexual harassment complaints, there would not have been a need for the Bar to implement the complaints mechanism in the first place. The complaints mechanism was put in place because the Bar must have recognised that there was a need for an alternative mechanism to specifically handle the very nuanced and layered issue of sexual harassment. Referring sexual harassment victims to the ASDB mechanism is not a solution to the problem but rather a step backwards.
Many a time the wheels of justice grind painfully slowly. However, it will not grind at all when there is no working engine to power those wheels to begin with and this is not an engine that needs the occasional oiling, but one in desperate and urgent need of an overhaul!
The buck does not stop with victims
In a Free Malaysia Today news article headlined “Be brave and expose sexual harassment, trainee lawyers told,” the Bar president said: “As lawyers and professionals, the victims must be brave enough to come forward and not suffer in silence.”
With respect, this is an extremely tone-deaf statement as it fails to consider the many reasons why most victims choose not to report or speak out against sexual harassment in the first place, reasons which, ironically, the Bar seems to have already acknowledged. The statement also seems to suggest that the Bar’s hands are tied if victims choose to remain silent, when in reality the Bar is in a position to do so much more to combat the issue.
Further, putting forth such a statement only shifts the burden onto victims to end sexual harassment, when in truth it is the hegemony inherent in most working relationships, workplace structures that shield perpetrators and the enduring silence of an entire industry that enable sexual harassment to perpetuate in the first place. It is incredible how much we already blame victims and trivialise their experiences, now we expect them to put an end to a problem they have fallen victim to exactly because of their lack of power. What else do we expect them to do next?
Some victims have risen to the occasion
There have been the exceptional few who were bold enough to come forward publicly with their unfortunate experiences. In so doing, they have put faces and names to victims of sexual harassment. Some of us know them as colleagues, former colleagues, friends, mutual friends, or acquaintances. Sexual harassment victims are no longer just mere statistics we read about in surveys and reports. These victims have, to a certain extent, moved the needle and restarted a much needed conversation on sexual harassment in the legal field.
This should have really been the tipping point to spur the Bar to do more than it has ever done before to address this severe and pervasive rot in the industry. Sadly, the Bar’s recent flip-flop on the complaints mechanism and its failure to be transparent about the current position of the mechanism only reflects the Bar’s lackadaisical attitude in addressing this issue.
Perhaps the Bar, first and foremost, needs to start recognising the real human cost of sexual harassment. Victims and survivors pay the price of sexual harassment, some more than others. Very few realise that sexual harassment can leave long-lasting and severe trauma on victims. It is also a pernicious problem that can impact talent retention within the industry and threaten the integrity of the profession.
Every lawyer, regardless of gender, age or seniority, deserves to work in a safe environment. Victims who have paid the price of an unsafe workplace now realise the importance of this and have already spoken up, and maybe it is time we all really listen.
Some victims have been very brave and have risen to the occasion, perhaps it is time the Bar steps up, too.
The Young Lawyer’s Movement is a group of lawyers below the age of 30.
The views expressed are those of the writers and do not necessarily reflect those of FMT.