(This is excerpt of welcome note delivered by Dr. Bipin Adhikari as Chairperson of Nepal Constitution Foundation at a Bill Review Programme on the Bill of Sexual Harassment in Workplace Act 2067 organized by the Foundation on August 7, 2011)
The Bill has been drafted with the intention to safeguard the right to work in a safe and decent environment and to create legal framework to eliminate sexual harassment in workplaces. Any government or constitutional agency, any agency or organization established under the law or any business or service related entity will fall under the definition of “workplace” as provided in Section 2(a).
“Manager” has been defined in Section 2(c) as any person having the ultimate decision making power in administrative or business matters in any workplace. Section 4 defines sexual harassment primarily as touching any part of the body with sexual intent, or showing any sexual content through audio-visual or print media, or speaking about sexual activities, or expressing sexual intent through spoken words, signals, writing, sexual proposal, or looking at someone with sexual intent.
Section 3 prohibits any commission or abetment of sexual harassment in workplace. Section 5 requires the manager of the workplace to inform the employees and customers about – preventing such harassment, their rights to complain about such behaviour to the appropriate official and make other necessary provisions. According to Section 6 any complaints of sexual harassment must be made within 7 days to the manager who then has to investigate on the matter and either reconcile the parties or provide information to the complainant regarding a formal complaint within 15 days from the date of the complaint. Section 7 provides for formal written complaint to the appropriate hearing officer who, according to Section 14 is the Chief District Officer. The officer must be approached within 90 days after the alleged harassment or 70 days after the decision of the manager upon the complaint. The officer may be approached by both sides jointly for a settlement.
Section 9 protects the complainant against any negative action from the manager based solely on the complaint. The National Women’s Commission can inspect and inquire regarding the compliance of this Act and order proper measures to be taken if needed.
Section 12 sets the maximum punishment for the guilty party as 3 month imprisonment and/or Rs. 25,000 fine. The appropriate officer can also provide for compensation to the victim according to Section 13. The manager is responsible for the enforcement of decision of the officer or any settlement. If the manager is the accused then the officer is responsible for such enforcement. These proceeding do not affect any other legal remedy that may be taken under the prevalent laws.
It is felt that the preamble should make a mention of the responsibility of every employer to make the workplace free of sexual harassment. The definition of workplace should also be clear to include any public or private place as well. A sexual harassment complaint committee could be defined in Section 2 and mandated by Section 6 in the larger workplaces. It is necessary that the concept of a “third party” must be added to the purview of the Act to define any party directly or indirectly involved in the workplace or in any ways associated with the staff or the manager. Even looking at someone with sexual intent only once may amount to sexual harassment in a given situation whereas the current provision (Section 4) requires the incident to happen several times. It is also notable that sexual harassment can occur on the internet or through emails or telephone or fax. These aspects should be taken into account and included in Section 4.
Maintaining a safe, well managed, spacious and bright workplace, and separate toilets for men, women and others, and providing appropriate relief to the complainant are other managerial responsibilities that must be considered in Section 5. Providing a spacious workplace should be considered as another duty of the manager. Therefore section 6 could be amended so that the alleged victim can complain against the manager if the workplace is smaller that than what is recognized as a standard size for the workplace of such nature. In case the manager is the harasser, the complainant must be able to complain directly to the appropriate officer.
The process would be more judicious if the manager or the appropriate officer have power to make interim orders for protection of the complainant. Mediation between the parties should be promoted by Section 8 rather than settlement and such mediation should not be conducted with undue influence upon the complainant side.
The maximum punishment prescribed by Section 12 might be inadequate in some cases and ineffective as a deterrent so it should be increased to for example – one year imprisonment and Rs. 1, 00,000 fine.
Thank you very much!
Bipin Adhikari
Chairperson
Nepal Constitution Foundation
