The Federal Court Invented A Tort In 2016 Because Malaysia Had No Sexual Harassment Law. It Still Matters.

Asmah binti Hj Mohd Nor was a senior manager at Lembaga Tabung Haji. Her general manager, Mohd Ridzwan bin Abdul Razak, was her direct superior.

She complained to the CEO about sexual harassment — repeated vulgar remarks, dirty jokes of a sexual nature, rude language in emails, repeated offers to make her his second wife, and a vulgar word used as his laptop password.

The company's committee of inquiry found insufficient evidence for disciplinary action. Human Resources issued him a strong administrative reprimand and that was the end of the internal process.

He then sued her, seeking a declaration that he had not harassed her and that she had defamed him.

She counterclaimed. In September 2012 the High Court dismissed his claim and allowed her counterclaim, awarding RM100,000 in general damages and RM20,000 in aggravated and exemplary damages. The Court of Appeal affirmed.

On 2 June 2016 the Federal Court dismissed his appeal — and in doing so created a new tort in Malaysian law.

"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." — Suriyadi Halim Omar FCJ

Before that case, a sexual harassment complaint was dealt with by the employer alone, and the employer's decision was the end of the road.

1. What the Federal Court actually decided

The leave question was whether there is a valid cause of action for a civil claim on the grounds of sexual harassment under the existing laws of Malaysia.

The Court's starting point was a gap. Per Suriyadi Halim Omar FCJ: until the Employment (Amendment) Act 2012 came into force, there were no statutory provisions at all on sexual harassment in Malaysia — and that amendment, in his words, "unfortunately did not address the rights and liabilities of the harasser and the victim."

So the Court imported the tort of harassment, expressly describing it as an exercise of judicial activism, with sexual harassment as part of it.

A procedural detail worth noting. The original cause of action pleaded in the counterclaim was founded on the tort of intentionally causing nervous shock. The Federal Court noted its main constraint was that the leave question concerned the tort of harassment. The award below was upheld.

The damages, as awarded by the High Court in September 2012:

Note what the internal process had produced: an inquiry finding insufficient evidence for disciplinary action, and a reprimand. The courts reached a different conclusion on the same facts.

2. What TAGS gives you now

The Anti-Sexual Harassment Act 2022 (Act 840) established the Tribunal for Anti-Sexual Harassment, operational from 8 March 2024.

TAGS is enforceable. On 10 June 2026 the Kuala Lumpur High Court upheld a TAGS award — a written apology, counselling, and RM60,000 in damages against a man who shared his ex-girlfriend's intimate photos online. It was the first TAGS decision challenged in court, and the challenge failed. See (Someone Leaked Your Intimate Images. In June 2026 A Malaysian Court Upheld RM60,000 Against A Man Who Did That.).

3. When the tort still matters — the decision framework

Use the tort where:

The conduct predates 8 March 2024. TAGS hears complaints of sexual harassment occurring on or after that date. Earlier conduct is outside its jurisdiction, and the tort is the route.

Your claim exceeds RM250,000. The tribunal's compensation ceiling is a hard limit. Mohd Ridzwan produced RM120,000 in 2012, so exceeding RM250,000 is not routine — but where the harm is severe and documented, the courts have no cap.

You want a lawyer. Commentary on the Bill flagged this precisely: while the Tribunal may offer a speedier outcome, the complainant is not allowed legal representation at the hearing. That was identified as "a deterrent for a survivor of sexual harassment who does not wish to face the perpetrator or who is not equipped to manage the different aspects of a hearing without legal counsel."

You want aggravated or exemplary damages. Mohd Ridzwan awarded RM20,000 under that head. That is a court remedy.

Use TAGS where:

• the conduct occurred on or after 8 March 2024
• you want a faster, cheaper process
• an apology and a modest award would resolve it
• you cannot fund litigation

On whether you can do both. Commentary on the Bill noted that the proposed exclusion of the jurisdiction of the courts also causes complications. We could not verify the precise interaction between a TAGS complaint and a civil tort claim on the same facts — whether one bars the other, and in what circumstances. This is exactly the question to put to a lawyer before you file anything, because choosing the wrong route first may close the other.

4. The limitation period

For a tort action, s.6 of the Limitation Act 1953 gives six years from the date the cause of action accrued.

Points that matter:

• The six-year period applies regardless of when the plaintiff discovers the damage — the Court of Appeal in AmBank (M) Bhd v Abdul Aziz Hassan & Ors [2010] 3 MLJ 784 rejected the argument that time runs only from discovery.
• s.6A, added later, extends limitation for negligence not involving personal injury by three years from a "starting date" of knowledge, subject to a 15-year longstop. Whether s.6A assists a harassment claim is doubtful given its wording, and we do not assert that it does.
• s.29 provides an exception where the action is based on fraud or deliberate concealment — time does not run until discovery.
• s.4 — limitation must be expressly pleaded to operate as a bar.
• Where a claim is characterised as personal injury, s.7 has been described as imposing a three-year period. Whether a harassment claim producing psychiatric injury is a personal injury claim for limitation purposes is a real question, and it materially changes the deadline.
• East Malaysia is different. The Limitation Act 1953 periods do not apply in Sabah and Sarawak, which are governed by their own Limitation Ordinance.
• Claims involving the Government engage the Public Authorities Protection Act 1948 rather than the Limitation Act.

The practical point: do not assume six years. Whether your claim is framed in harassment, negligence or personal injury, and whether you are in West or East Malaysia, changes the answer. Get advice early — limitation is the one issue that cannot be fixed later.

5. Why the case still resonates

It is the reason a Malaysian employer's internal finding is not the last word. Before 2016, all sexual harassment complaints were dealt with by the employer alone and their decision would be the end of the road. Mohd Ridzwan changed that.

It also illustrates a pattern that remains common: the complainant made an internal complaint; the inquiry found insufficient evidence; the alleged harasser then sued her for defamation. The counterclaim, not the complaint, is what produced the remedy.

If you are considering an internal complaint, that history is worth knowing — not as a reason to stay silent, but as a reason to keep records and take advice early.

What to actually do

If you have experienced sexual harassment:

Support first. Talian Kasih 15999 (24h, WhatsApp 019-261 5999) · WAO 03-3000 8858, TINA WhatsApp 018-988 8058 · AWAM 03-7877 0224 · Talian HEAL 15555.

Preserve evidence. Messages, emails, dates, times, what was said, who witnessed it, and any internal complaint you made and the response. Save it somewhere the other person cannot reach.

Work out which route fits: 1. When did the conduct occur? On or after 8 March 2024 → TAGS is available. Before → the tort. 2. What is the scale of the harm? Above RM250,000 → the courts. 3. Do you need a lawyer with you? TAGS does not permit representation at the hearing. 4. How long ago was it? Limitation is six years for tort under the Limitation Act 1953, but shorter if the claim is characterised as personal injury, and different in Sabah and Sarawak.

Then take advice before filing. The interaction between a TAGS complaint and a civil claim is not something we could verify, and it may affect your options.

Free help: Bar Council Legal Aid Centres — malaysianbar.org.my. WAO and AWAM provide case support.

If you are an employer: the Mohd Ridzwan facts are the cautionary tale. An internal inquiry finding "insufficient evidence" did not end the matter, and the courts reached a different view. See (Unfair Dismissal in Malaysia: Fired for No Good Reason? You Have 60 Days to Act) for the employment dimension.