In recent years, we have witnessed how the #MeToo movement worldwide was sparked by women’s outbursts brought on by decades of cumulative abuse. In Bangladesh, as more and more women are entering the workforce, the scourge of sexual harassment has made an ugly appearance in different areas.
Constitutional provisions for women in the constitution
The Constitution itself serves as the foundation for laws in Bangladesh prohibiting gender-based harassment and violence in the workplace. Article 10 of the Constitution has mandated participation of women in all spheres of national life. The principles of equality and non-discrimination are enshrined in Article 28; more specifically, Article 28(2) states that women shall have equal rights with males in all aspects of the State and of public life. The idea of positive discrimination for the advancement of women is also supported by Article 28(4). According to Article 19(3), the State shall endeavour to achieve equality of opportunity and involvement of women in all aspects of national life as a fundamental tenet of state policy.
Gaps in the legal framework to prevent gender-based violence
Despite the constitutional mandate, the overall legal system in Bangladesh is insufficiently robust to combat gender-based violence and harassment in the workplace, particularly its most prevalent form, sexual harassment. The ILO defines the term sexual harassment as a sex-based behaviour that is unwelcomed, unreasonable, and offensive to its recipient. Although there is a long list of behaviours and activities that constitute sexual harassment in the Supreme Court Division’s 2009 guidelines, the crime of sexual harassment is not specifically defined. In addition, there is no definition or reference to “sexual harassment” in other contemporary statutes including the criminal laws. The Bangladesh Labour Act (BLA) does not contain any clauses that would prevent or shield employees from gender-based violence, including sexual harassment, at work. Although “indecent behaviour which is offensive to the modesty or honour” of any woman is prohibited by section 332, the phrase “indecent behaviour” is not defined. Additionally, by referencing women’s “modesty and honour,” it is embedded in language that is rife with gender stereotypes. Over years, rape has been committed in workplaces. Yet again, the definition of rape given by the Penal Code is flawed. ‘Penetration’ is not defined, hence rape is typically characterized as ‘peno-vaginal penetration,’ which is usually the standard definition of ‘sexual intercourse’. Such a general interpretation of the term excludes several other sexual penetrations that are regarded as rape in many countries outside Bangladesh. The term does not specify how to establish volition or consent in a case. Thus, courts frequently demand proof of “force” to show a lack of consent which results in gender-sexist interpretations of rape. Similarly, the Women and Child Repression Act 2000 (WCRPA) explicitly stated that the definition of rape would be the same as that found in the Penal Code. Outraging a ‘woman’s modesty’ remains an imprecise concept under the 354 and 509 of the Penal Code offering up grounds for victim-blaming based on stereotyped views of women’s ‘modesty’. If a male asserts that he did not “intend” to make a woman feel harassed or abused, then there is no recourse available to her under these laws. Section 10 of WCRPA sets more severe penalties for sexual assault. Yet, this clause does not resolve the vagueness of Bangladesh’s current sexual assault law which still requires the accuser to prove the nebulous notion of “outraging a woman’s modesty.” The 2009 High Court Division guidelines apply to all workplaces and all public and private educational institutions in Bangladesh. It appears that the standards may only pertain to the traditional sense of a workplace, i.e., an establishment’s physical premises, because the terms “workplace” and “educational institution” are not defined. Without mentioning the vulnerability of female workers to work-related GBVH, the National Labour Policy 2012 calls for an end to workplace discrimination against men and women. Although the policy averts to reduce workplace risks, it makes no discrete mention of risks related to violence, harassment, or psychosocial issues. Bangladesh currently lacks any laws that would protect against discrimination based on gender, sexual orientation, caste, religion, or other identifying markers. The draft of Anti Discrimination Bill 2013 prohibits discrimination against any person or group based on a variety of factors, including, but not limited to, caste, religion, faith, caste, custom, culture, occupation, sex (man, woman, third gender), sexual orientation, age, disability, pregnancy, marital status, and place of birth is still awaiting legislative consideration. The HCD’s guidelines of 2009 exclude numerous essential specifics about complaint and inquiry systems. Employees are reluctant to report incidents in the absence of established complaint procedures because they fear facing reprisal if they criticize their managers or supervisors. In addition to legal shortcomings, the stakeholders lack understanding of the workplace risks linked with GBVH, including sexual harassment.
Recommendations to strengthen the prevention of gender-based violence
If we look at the international legal framework, Article 9 of the Violence and Harassment Convention, 2019 (Convention No. 190) requires member states to adopt appropriate laws and regulations that require employers to take measures to protect workers against violence and harassment in the workplace. C190 places significant importance on including measures against violence and harassment within the management of occupational safety and health (OSH). However, the policies and practices in the context of Bangladesh generally overlook violence and harassment issues in the OSH management. In incidents of violence and harassment at work, members are required by C190 to provide fair, and efficient reporting and dispute resolution systems and procedures, including those that take place outside the workplace. The government of Bangladesh may consider setting up an impartial commission or body where employees from all industries can file a complaint directly with the authorities to reach a mutually agreeable resolution. Such an alternative conflict resolution system may prove to be an efficient and impartial venue for workers from all industries, especially because the current Labour Courts and Tribunals are frequently overloaded with ongoing cases. Bangladesh may take into consideration the new definition of rape found in section 375 of the Indian Penal Code which was passed by the Criminal Law Amendment Act of 2013 based on the Justice Verma Committee Report. Also, there is a compelling need for legislation to be passed in Bangladesh that can protect working women’s rights, similar to the Sexual Harassment of Women at Workplace Act (2013) in India.
Concluding remarks
Bangladesh should ratify C190 immediately because it includes effective provisions to prevent gender-based violence in both formal and informal sectors. Also, it is important to include provisions in the law so that labor inspectors can better monitor and check on gender issues at workplace. To combat sexual harassment in the workplace and encourage businesses to uphold their social obligations better, the management of businesses and trade union leaders can play a stronger role. By educating people about the laws that are in place to prevent abuse, awareness of gender-based violence can be broadly increased. Above all, in every sphere, it’s important to guarantee the participation of women in decision making.
