Can public interest litigation change culture?
Sexual harassment is a pervasive problem arising from gender inequality and patriarchal attitudes and norms around the world. Though progress has been made in recent years in Bangladesh,we don't have sufficient legal instruments to address issues of sexual harassment, which disproportionately impact women and girls. The Constitution outlines fundamental rights to equality and treatment in accordance with law, as well as the right to work, and to protection against degrading or humiliating treatment. Bangladesh is a signatory to several international human rights treaties, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). As a result, every person in Bangladesh has a right to be free from sexual harassment and other forms of gender-based discrimination.
Women advocates have been leading the charge to confront this harmful and discriminatory practice by raising awareness and identifying gaps and flaws in the legal system. Rights-based organisations working on issues of gender equality, such as the Bangladesh National Women Lawyers Association (BNWLA), Ain o Salish Kendra (ASK), and Bangladesh Legal Aid and Services Trust (BLAST) have sought guidance from the court in their quest to prevent and address sexual harassment.
In 2008, the Bangladesh Women Lawyers' Association filed a writ petition before the High Court in the context of pervasive sexual harassment being reported by women students on campuses across the country, with limited redress. The Court asked the respondents to explain why no sexual harassment guidelines had been adopted, leaving women and girls needlessly vulnerable in workplaces, schools, and other public spaces. The case followed a major press conference in 2008, during which a committee of 47 rights-based organisations presented statistics showing 333 incidents of violence against women in the first half of the year alone. The frequency of incidents of sexual harassment at educational institutions and workplaces, as well as the lack of protocols for appropriately responding to such occurrences were highlighted. The organisations involved adopted seven resolutions to effectively respond to and prevent sexual harassment at educational institutions. These resolutions are reflected in the reasoning and judgment of the court.
In Bangladesh National Women Lawyers Association v the Government of Bangladesh, Writ Petition No. 5916 of 2008, the High Court reviewed recent instances of sexual harassment in universities and workplaces, and ultimately issued directives to address the gaps in the legal framework.This guideline extend to all workplaces and educational institutions, public and private, throughout the country. It defines sexual harassment broadly, capturing any unwelcome sexually determined behaviour, and also prohibits several specific behaviours, including demands for sexual favours, showing pornography, taking still or video photographs for the purpose of blackmail and character assassination, among others.
In addition to outlining what is considered sexual harassment in Bangladesh, the court also addressed the importance of the issue and outlined a number of preventative steps. Sexual harassment can be humiliating for those targeted by it, but it also represents a broader societal issue that impacts public health, school and workplace safety, and gender discrimination. In order to minimise occurrences, the court directives urged all employers and educational institutions to prohibit sexual harassment, ensure that their environments are not hostile toward women and girls, and establish complaint committees through which instances of sexual harassment can be handled and reported to the government of Bangladesh in the form of annual reports.
It has now been seven years since the litigation was brought by BNWLA. Though the guidelines created by the court are clear and thorough, there are major enforcement issues, and many workplaces and educational institutions are simply not taking up the directives. Salma Ali, executive director of BNWLA, notes that though sexual harassment is a punishable offence, it continues to be a major problem in the country. "Though several initiatives were taken by government organisations, NGOs, educational institution and private companies to execute the directives, there is still no substantial implementation mechanism established, and there is need for a national level monitoring and oversight committee for effective implementation of the Supreme Court directives."
Ms. Ali also told us that universities are major sites of action on this issue, and that she is happy to see young people, including young men and boys, interested in stopping sexual harassment. Reflecting on the 2009 case, she stressed the importance of public interest litigation (PIL) as a crucial advocacy tool and instrument of social change.
On June 4, 2016, several leading human rights organisations, lawyers, researchers, and government officials are coming together for a conference on the role of public interest litigation in advancing rights and justice. The conference is being convened by BLAST, with Bangladesh Environmental Lawyers Association (BELA) and BNWLA, and supported by the Community Legal Services Programme of DFID.
It will provide an opportunity to discuss in detail some of the landmark judgments that have provided tools to resist inhuman and degrading treatment, and ensure safer places of education and work. This will be an opportunity to hear from those directly involved, and explore the steps to be taken and work out existing challenges in the way of implementation of the PIL judgments, rules and orders, and to focus on the steps that are required by different actors, the media, citizens' groups, government officials and the judiciary to ensure transformative change in ending the culture of sexual harassment that inhibits women from working and living securely and freely.
For more information on the conference, please contact [email protected].
The writer is a student at Osgoode Hall Law School in Toronto, and is currently based at Bangladesh Legal Aid and Services Trust (BLAST).
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