Bill on Sexual Harrassment in the Workplace (Eradication) 2066


Dec. 13, 2011, 5:45 p.m. Published in Magazine Issue: Vol.: 05 No.-11 Dec. 09-2011 (Mangsir 23,2068)<br>

Studies of the laws of different countries show that generally there are in principle three different approaches to sexual harassment in the workplace. The first legal perspective takes sexual harassment as gender based discrimination, the second takes it as an offence against dignity, and the third as a question of health and safety in the workplace.

There are no special laws related to controlling sexual harassment in the workplace in Nepal. Some national laws such as - Nepal’s Interim Constitution 2063, Muluki Ain 2020, Scolding and Shaming Act 2016, few Public (Crime and Punishment) Act 2027, Domestic Violence (Offense and Punishment) Act, 2066 – have provisioned for ending discrimination against women and different kinds of violence and protecting an individuals profession and freedom to work.

In 2060, the Supreme Court of Nepal issued a directiver order on a write petition filed in public interest even in the absence of specific laws to control sexual harassment that stated, “The defendant is ordered to form laws and necessary systems that include all aspects of sexual harassment in the workplace after thouroughly studying it.” Likewise the Labour Court in one of its rulings has classified sexual harassment as badd behaviour. Based on these court rulings, the Bill on Sexual Harrassment in the Workplace was proposed in the Legislative Assembly in 2066.

The Bill on Sexual Harrassment in the Workplace (Eradication) 2066 has now reached the Legislative Assembly for point wise discussions. The Bill was presented by the then Minister for Women, Children and Social Welfare Sarwadev Prasad Ojha in the 94th meeting of the sixth session of the Legislative Assembly that met on 2 January 2010. The next day on 3 January, he proposed that the Sexual Harassment in the Workplace (Eradication) Bill 2066, be dicussed in the Assembly. When the Speaker of the House mentioned that the ideological/conceptual aspects of the bill would be discussed CA members Devi Khadka, Pushpa Bhusal, Shanti Basnet (Adhikary) Sabitra Bhusal, Ramesh Lekhak, Meena Pun, Lila Nyaichai, Biswendra Paswan, and Gopal Thakur participated in the days discussion. After the meeting Minister Sarwadev Prasad Ojha answered the questions raised and the Speaker presented the “proposal to discuss the Bill on Sexual Harassment in the Workplace (Eradication) 2066 to the floor”, it was approved unanimously. As the 6th session of the assembly ended that day the Bill remained as it is until the 7th session began in Chaitra 2066.

On 7 April 2010, the second day of the 7th session, the then Minister for Women, Children, and Social Welfare Sarwadev Prasad Ojha proposed that the Bill on Sexual Harassment (Eradication) Bill, 2066 be sent for point wise discussion to the Bills Committee, and the Speaker asked the House to decide, it was approved unanimously.

The amendment proposal is focused more on expanding the definition of workplace, increasing the time for filing complaints, clarifying the complaint registration process, maximizing punishment, not enforcing the victim for reconciliation with the perpetrator among others. 

Among the various suggestions were those asking that the phrase “complaints against harassment” used everywhere in the Bill be rephrased as “registering complaints against harassment” and those calling for the Bill to be renamed as Crime Control Bill in the amendment proposal. CA member Sapana Pradhan Malla proposed that there be amendments beginning from the preamble to different sections and sub sections of the Bill, provisioning that the management also be responsible in ensuring that there is no sexual harassment in the workplace.   

It might be appropriate to have the detailed name and preamble, language and sentiments in uniformity with other acts such as Human Trafficking (Control) Act 2064, Domestic Violence (Offence and Punishment) Act, 2066. Likewise in the preamble it serves no purpose to have the extended time duration  - from the time when incident is proved to the 91st day.

Definition: The definition of “workplace” given in the amendment proposal is more appropriate and more encompassing than the definition provided under Article 2, Section A, but it is still inadequate. To clarify this better workplaces must be categorized and defined more. Likewise the words added in Section C and newly added Sections F and G are also necessary because “Developing Legislations on Violence Against Women, a UN WOMEN document states that sexual harassment against anybody in the workplace should be addressed and emphasized that legal remedies should be in place to make workplaces mandatorily investigate such incidents through special investigation committees.

To clairify this more workplaces should be classified into: 1. Government Agencies, Organisation or Industry, Local Agency or Cooperative or other similar organizations, 2 Private ORganisations, Trust, Non Government Organizations, Professional or Educaitonal or Entertainment sectors etc, 3. Private home or residence, 4. any transport vehicle, 5. Any unorganized sectors such as agriculture, industry, trade, business. It is important to clearly define and classify all of these. If defining everything in the Act makes it impractical (too large) the definitions can be placed in the Annex of the Act.

( C ) “Administrator” should be undersood as anybody who has the authority to make final administrative or professional decisions or any official who uses this authority, and this also denotes those individuals who are heading the various units or departments of the organization in separate places or exercises such authority there.

Considered sexual harassment: Except for the sub-sections in Section 1, the following should replace everything else that is there. This will help determine what can be considered as sexual harassment. Among the lines given below many have already appeared in the amendment proposal. Under Section 1.F the word “repeatedly” must be removed because even if an individual has looked upon another with sexual intent it is harassment (This has already come in the Amendment). Sub sections G and H should be added after Sub section F which has already come in the amendment proposal. This gives it the authority to control or eradicate sexual harassment conducted using modern technology.

Suggestion : “(1)  If an administrator or an employee or staff or service provider or a third party mis-uses their authority or power of the official post, and puts any kind of pressure, influence, temptation, or encourages another staff or employee or service receiver or a third person to do or encourage to do the following either in the workplace or while commuting or in the field or any other place, it shall be considered sexual harassment: (F) look with sexual intent.

After Sub Section F sub sections G and H should be added with the following :- (G) Watching, downloading, e-mailing, or indulging in any other indecent or sexual materials using websites, internet, e-mail and other communication technologies, (H) Sending or broadcasting any sex related news or messages using the telephone, fax, S.M.S or any other long distance communication medium,

Suggestion: Add the following sub-sections D, E, F, and G after sub section C

D. Provide for secure, well managed, wide and bright workplaces,

E. Provide for separate secure and well managed toilets for women, men and third genders

F. Make appropriate systems to file complaints against those involved in sexual harassment, perform appropriate investigations and hearings about such complaints, and solve such incidents unbiasedly

G. As per this Act the Administrator must compensate the victim with an appropriate amount and provide for psychological counseling as per the need

(2) The victim must be well informed about the period within which the complaint must be filed, the process, provision for compensation, and the official hearing the complaint. 

6. Provision related to complaint hearing: As the term “complaint” should be replaced with registered complaints in this section and the entire Bill, it is necessary to replace complain hearing with “registered complaint hearing”. Sub sections and parts related to registered complaint hearing in Section 6 are very incomplete and unclear. Instead of the term “enforcing reconciliation” it might be more logical to use “mediation”.

Suggestion: Section 6. Subjects that need to be included in the provision on systems for complaint hearing   

a) If it is a private working place or a workplace that is smaller than an academy the victim of sexual violence must file the first complaint with the related administrator

b) If the administrator is the accused the victim should file the complaint directly with the official responsible for the complaint hearing

c) Workplaces that are equal to or above the level of an academy shall have a committee comprising of a minimum of two women to investigate any registered complaints, hear, and take action or resolve incidents of sexual harassment. 

(Such provisions for a complaints committee will emphasize the administrations responsibility. Regarding the complaints committee CA member Sapana Pradhan Malla’s definitions of methodology, investigation, mediation, provision to declare an interim order, other important issues, annual report preparation, work area, etc are important and appropriate. These should be included in the Bill.

C) Such a complaint should be registered either orally or in written within 30 days of the incident of sexual harassment having occurred. If an oral complaint has been filed it must be document in writing, read out to the victim, have it signed or thumb printed by the victim and registered. (The proposed seven days is very insufficient)

(2) If any complaints are filed under Sub-section (1) the administrator or the complaints committee or the official responsible hearing the complaints should immediately start investigations. 

(3) While investigating under sub-section (2) if it is seen that the accused has actually been involved in sexual harassment of the complainee in the workplace, the administrator or the complaints committee or the official responsible for hearing the complaint, shall try to mediate between the two sides if they are willing, or have the accused apologize to the accuser or to make the accussed aware, or compensate the victim and impose punishment. However if there are attempts to wrongly influence the victim during the mediation, the victim may at any point may end the mediation.

(4) As per this Act the administrator or the complaints committee or the official responsible for hearing the complaints must bring an end to the issue within 30 days of the complaints having been filed. If any side is not satisfied with the decision made by the administrator or complaints committee they have to file a re-investigation into the incident with the official within 30 days of the decision being made. In the right of the administrator if complaints have been registered with the official for re-investigation immediately after the decision has been made and the decision reached after due process is still unacceptable the unsastified party may file a writ in the related appellate court.

As per the amendment proposal (6) that states as per the offence, the administrator or the complaints committee or the official responsible for hearing the complaint may suspend, transfer or demote the perpetrator.

(7) Issueing Interim Order: The security of the victim or the witness must be guaranteed. After the victim or the witness has requested for their security, until the administrator, complaints committee or the official responsible for hearing the complaint, can arrange for or decide for the security the victim or the witness must be placed in a place where they feel safe, change their shifts, give them a vacation, or have other interim orders issued. (Seen to also be appropriate according to the amendment proposal)

(8) Burden of Proof : Whatever else is written in current laws, if any accused is found guilty as per this Act, it is upon the defendant to prove his or her innocence. The complainee has to only provide proof necessary to validate the claim/complaint. (As per other laws related to violence against women and international norms. Already included in the amendment proposal)

Provisions regarding complaints : As section 6 has been amended as provisions for hearing registered complaints the heading of this section must also be corrected. Rewriting Sub section 1 as per the amendment proposal might make it more clear.

Suggestion : Article 7: Provision regarding written complaints filed with the official responsible for hearing the complaints: (1) Whatever else is written in Article 6, if any administrator, staff/employee, worker, or any other third person commits acts of sexual harassment in the workplace or attempts to commit such, written complaints may be filed with the official responsible for hearing the complaint within 90 days of the incident having occurred 

(2) If any administrator or the complaints committee is unable to resolve the incident within 30 days of the written complaint having been filed or if any party is unsatisfied with the decision made the concerned individual may file another complaint within 30 days of the decision being made.

The currently tabled Bill on Sexual Harassment (Eradication) formulated on the basis of various international norms, related laws in various countries, and the amendment proposals submitted by various CA members, must be incorporated and amended.

The preamble of this bill has missed mentioning that it is also the responsibility of the employer to ensure that the workplace is free of sexual harassment and ensure that as per international norms an individual’s right to dignity must be protected.

This investigative report and suggestion prepared by Manju Thapa for Nepal Constitution Foundation was finalized with the help of representatives of women, indigenous communities, Madhesi, youth, and other pressure groups. The Foundation is grateful to Sanjeeb Lama, Sanumaya Maharjan, Sanjita Timalsina, Binu Gautam, Gokarna KC, Nirupa Yadav, Prakash Pandeya, Madhur Pathak, Gopi Biswakarma, Johny Niraula, Dina Shrestha, Furpa Tamang, Abhishek Adhikary and Dr. Bipin Adhikary.

This research has been supported by The Asia Foundation. Views and opinions expressed in this report are of theose  authors  and don’t necessarily reflects of The Asia Foundation.

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