Combating sexual harassment: Court guidelines
M. Jashim Ali Chowdhury
During August 2008, National Women Lawyers Association (BNWLA) brought a writ petition ( W.P. No. 5916 of 2008), before the High Court Division arraigning as many as 19 respondents including the Government of Bangladesh for the vacuum of legislative and administrative setup to address sexual harassment of women and girl children. The petitioner sought judicial intervention to find out an effective and/or alternative mechanism to cater the crying need. Conceding the raison d'être for immediate intervention the Court on 7.8.2008 issued a Rule Nisi calling upon the respondents to show cause as to why they failed to adopt guidelines, or policy or enact proper legislation in this regard. On 18.8.2008, the Court passed an interim order requiring some immediate initiatives to be taken by the respondents to address sexual harassment of women including building up of awareness, consultation with women groups, various stakeholders and others. Seeing the jaded response of the respondents to this burning issue, the Court proceeded with a full pledged commitment.
The burning questions before the Court were:
1. Whether the formulation of anti-sexual harassment guideline is within the contemplation of the Constitution.
2. On face of the prayer for an alternative mechanism in absence of specific legislation whether the Court was competent to give directives in the form of guidelines.
3. Whether the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to which Bangladesh is a signatory would come to any help to fill in the gaps.
4. What the protection regime to be suggested, if any, should contain.
Constitutional mandate for Anti-Harassment Guideline
The Constitution is affluent in provisions prohibiting sexual harassment. Article 19(1) (equality of opportunity to all citizens) and 10 (participation of women in all spheres of national life) become meaningless while the 'flagrant and pervasive vice' of sexual harassment continues unopposed.
Articles 26 (equality before the law and equal protection of law), 29 (equality of opportunity in employment irrespective of sex etc), 28(2) (women's equal rights with men in all spheres of the State and public life) and 31 (due process of law) 'are sufficient to embrace all the elements of gender equality including prevention of sexual harassment or abuse'. Article 28(4) envisages the need for special legislation and imposes a 'burden on the Government to enact law to protect the women at their work place' [Mahmudul Islam, the amicus curie in this case].
What the Government has done so far is the adoption of a National Women Development Policy in February, 2008 which is too poor to tame the leviathan. So the Court found every justification for judicial law making.
Issuing Guidelines: Activism or Adventurism?
Any petition asking for judicial Guidelines in the form of interim legislation apparently questions judicial self restraint which requires that while the Parliament legislates, the judge interprets as 'the courts are not to second-guess legislatures' [The Canadian Supreme Court in Vriend v. Alberta  1 SCR 493 para 136].
So the next issue the Court was to answer in this case was whether it was competent to issue guidelines that would fill in the gaps until the legislation is made. In light of the 'Objectives of the Judiciary' mentioned in the Beijing Statement of Principles (as amended at Manila, 28 August 1997), the Court asserts that it has every competency to give directives in the form of guidelines under article 111. Moreover improbability of issuing a mandamus to legislate leaves the Court with no alternative to issuing directives.
Where there are gaps to be filled, hardships and wrongs to be mitigated if not avoided, judicial self-restraint must not turn into judicial timidity. Obviously there is a time for caution and a time for valor and it is hard to guess when the clock strikes for valor and when for caution. But it is for sure that 'the question is not one of whether but of when' [Justice Albie Sachs quoted in Patrick Lenta, 'Judicial Restraint and Overreach', 20 SAJHR (2004) p. 555].
Should CEDAW come into play?
Apart from many other international instruments, Bangladesh is a party to the CEDAW which provides an impressive array of protections for women and requires the State Parties to take all appropriate measures to eliminate discrimination against women in the field of employment.
In this case, an assertion of the petitioner advocating direct application of CEDAW put the Court in search of a juristic foundation on which it can stand firmly to enforce CEDAW.
While civil law countries are inclined towards monism favoring direct application of international law in domestic arena, common law countries show strong allegiance to dualistic approach. Ours being a common law heritage, as Professor Shah Alam asserts, there is an 'entrenched and reigning belief' that as long as we belong to common law system, we must remain 'firmly loyal to its traditions' which dictates the judiciary 'to shy away from any serious consideration of international law in domestic courts' [Enforcement of International Human Rights Law by Domestic Courts, Dhaka, 2007, p 100].
But this being a glaring exception, the Court resorting to Hossein Mohd Ershad v. Bangladesh 21 BLD (AD) (2001) 69 and Apparel Export Promotion Council v. Chopra, AIR 1999 SC 625 held, 'The international conventions and norms are to be read into the fundamental rights in the absence of any domestic law occupying the field when there is no inconsistency between them.'
This standing of the Court can be further substantiated by a plain reading of Article 145A which provides a very thin scope for parliamentary scrutiny of 'treaties with foreign countries'. As it deals only with 'treaty with foreign countries' e.g., bilateral treaties and not multilateral ones with universal applications, the later will be directly applicable in the domestic legal system.
Removing all reasonable shadow of doubt about the worth and competence of so doing, the Court proceeded into framing sexual harassment prevention directives in the form of Guideline. The Court followed Vishaka and Others v. State of Rajasthan, AIR 1997 SC 3011 verdict of the Indian Supreme Court in its letter and spirit. Salient features of the Guidelines are as follows:
The guidelines shall be applicable in all work places and educational institutions in both public and private sectors in Bangladesh [Clause 1].
The employers and other responsible persons in work places and the authorities of all educational institutions are required to maintain an effective mechanism to prevent or deter the commission of offences of sexual abuse and harassment [Clause 3]
Sexual Harassment is defined in a super-encompassing way to cover almost all comprehensible aspects of human conduct from unwelcome sexually determined behavior to taking still or video photographs for the purpose of blackmailing and character assassination [Clause 4].
Awareness and public opinion should be created by wide dissemination of legal information through orientation for students and counseling for concerned persons [Clause 5].
All concerned authorities shall take effective measures for prevention of sexual harassment including the creation of awareness and engendering confidence in women workers and students [Clause 6].
Appropriate disciplinary action must be initiated in a case falling within the definition of sexual harassment [Clause 7].
Appropriate mechanism must be evolved at the workplaces, and educational institutions for record and redress of the complaint made by the victim. Such complaint mechanism must ensure, among others, anonymity of the complainant (and of the accused until the allegation is proved), security of the complainant and easy complaint lodging method e.g., complaint via e-mail [Clause 8].
A Complaint Committee will be constituted in every work place and educational institution with a majority of female representation which shall submit annual reports to the Government on the compliance of the guidelines [Clause 9].
A detailed, speedy and user friendly procedure is prescribed for the Complaint Committee's investigation and decision making [Clause 10].
Punishments include temporary suspension of the accused person and in case of students, prevention from attending classes on the receipt of the recommendation of the Complaint Committee. Additionally the authority shall refer the matter to the appropriate Court or tribunal if the act complained of constitutes an offence under any penal law [Clause 11].
Justice Cardozo claims that the works of a judge are not perfunctionary and mechanical. The work of a justice is in one sense enduring and in another sense ephemeral. What is good in it endures. What is erroneous is pretty sure to perish. The good remains the foundation on which new structure will be built [The Nature of the Judicial Process, Yale University Press, 1921 p 178]. No doubt this judgment falls in the later category.
M. Jashim Ali Chowdhury is Senior Lecturer, Department of Law, Northern University Bangladesh (NUB), Dhaka