Ratified treaty;¹ Work of international supervisory bodies;² Foreign case law³

Sexual harassment/ Lacuna in national legislation/ Use of international law as a guide for interpreting domestic law

Following reports of sexual harassment, the Bangladesh National Women Lawyers Association (BNWLA) brought before the Supreme Court a writ against the Government of Bangladesh on sexual harassment. After noting that there were no specific legislative provisions for addressing sexual harassment of women and girl children, the Court found that there was an urgent need to address this issue. The Court invoked its responsibility under art. 102 of the Constitution for enforcing fundamental rights in the absence of legislation. Thus the Supreme Court defined “sexual harassment” and laid down directives in the form of guidelines to protect women and girl children from sexual harassment at the workplace and educational institutions in both the public and private sectors “to be followed and observed … until adequate legislation is made in this field.” In formulating these guidelines the Court relied on various testimonials of sexual harassment, as well as on constitutional provisions, international instruments and foreign case law. More specifically the Court referred to articles 19(1), 26, 29 and 31 of the Constitution and observed that the principle of gender equality enshrined in the Constitution encompasses prevention of sexual harassment, especially if relevant provisions are read in light of international law:

“The fundamental rights (…) are sufficient to embrace all the elements of gender equality including prevention of sexual harassment or abuse. (…) 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. It is now an accepted rule of judicial construction to interpret municipal law in conformity with international law and conventions when there is no inconsistency between them or there is a void in the domestic law. Protection from sexual harassment and right to education and work with dignity is universally recognized as basic human rights.”

The Court issued a series of 11 Rules to serve as guidelines. In drafting these Rules it relied on the Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol. It also drew on the General Recommendation No. 19 on violence against women issued by the United Nations Committee on the Elimination of Discrimination against Women, which postulates that “(17) Equality in employment can be seriously impaired when women are subjected to gender-specific violence such as sexual harassment in the workplace”.These included definition of sexual harassment and measures to be adopted including public awareness, complaints procedures and punishments.

¹ Convention on the Elimination of All Forms of Discrimination against Women, 1979.

² UN Committee on the Elimination of Discrimination against Women.

³ Canada, India.