Speaking during a panel session at the Iskandar Law Conference here, they said the Act appeared to be overly protective of the victim, gave wide-ranging powers to the tribunal with no right of legal representation unless complex legal issues had been raised.
Former Selangor Bar chief V Kokila Vaani said based on the composition of the tribunal, not allowing representation rights to both parties was alarming.
“Under the law, the tribunal’s president and his deputy will be from the judicial and legal services with five other members with at least seven years of legal background. Another five will be those who have dealt with matters relating to sexual harassment.
“Having this composition, you need to at least explain the legal issues involved. Thus, not being legally represented may be alarming,” she said.
Senior lawyer NG Vinod said the Act appeared to favour the complainants as once the case was initiated, the parties could not go to court.
“So if someone decides to lodge a complaint against a person and the respondent is not comfortable and wants the civil court to hear the case, he is not able to do so,” Vinod said.
The lawyers also expressed concern over the finality of tribunal awards as they could not be challenged in a court of law.
Vinod said there seemed to be so much power vested with the tribunal that it appeared to be more powerful than the arbitration court.
“There is only one room for setting aside the award by the tribunal which is if there are serious irregularities. Other than that, the powers are so extensive that you just cannot challenge their decision.
“In arbitration, you have the breach of natural justice clause to challenge an award. Here you don’t have that,” he said.
Federal Court judge Mary Lim, who was moderating the panel said considering the tribunal’s decision would be final, and it had the power to decide on what constituted complex issues of the law before deciding on allowing legal representation, it appeared to be a quasi-judicial body.
“After the tribunal finds that an offence has been committed, there can be orders on compensation. Now we are looking at an order as if it is an order of the court,” she added.
Kokila Vaani said there appeared to be no safeguards to prevent frivolous or false complaints or redress for those whose reputation might have been damaged by these irresponsible actions.
“This is vital as it can result in serious harm to victims of false complaints,” she added.
Negotiated settlement
The panellists also expressed uneasiness over the clause which allows the tribunal to assist the parties involved to negotiate a settlement for a compensation, saying it might not be an effective section.
“If the assisting tribunal fails to find a settlement, the same tribunal will give out an award. Civil courts don’t do this, they refer them to mediation centres. This is so that the judges who are going to hear the case would not be influenced by any factor brought up during the mediation,” Vinod said.
Adding to this concern, Lim said this seemed to suggest that the tribunal would sit down, put on a slightly different hat and consider if they should nudge the parties in the direction of a negotiation.
“The tribunal will have to first form a view whether or not it is appropriate under the circumstances,” she added.
My Iskandar Sdn Bhd jointly organised the conference with Law Chambers of Vin Sa & Ian. FMT was the media partner for the event.