This blog is written by Pavuthira Kannathas, a Second-Year law student of University of Colombo

Introduction

No laws in Sri Lanka provide an actual legal definition for the term Sexual harassment.[1] But it amounted to an unwanted sexual requirement within the context of an unequal power relationship.[2]. According to Weber one of them will be in a position of executing his or her will- the harasser- and the other is the victim.[3]. Few enactments deal with the sexual harassment issue in Sri Lanka, however, labor legislation available does not have arrangements for sexual harassment.[4] Also, certain arrangements lead to challenges the equal application in the sectors of Employment law. Sexual harassment at the workplace violates gender equality in employment and it violates equality provisions of the Constitution by way of the relief for violation of equality provisions available only to the employees in the government sector.[5].

1. Penal Code of Sri Lanka

Section 345 of the Penal Code states that whoever assaults or uses criminal force on any woman, intending to outrage, or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both, and may in addition be punished with whipping. Further, Section 365 states that whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 365 A cites acts of gross indecency between male persons, also Sections 316 and 312 state punishment for voluntarily grievous hurt and voluntarily causing hurt which may also be caused during sexual harassment at work workplace. Additionally, Sections 340 and 341 state about criminal force and assault, and Section 342 and Section 330 assault and wrongful restraint. In this way, all these provisions are closely related to the offense of sexual harassment.

2. The Bribery Act of Sri Lanka

The Bribery Act No.11 of 1954 defines the term bribery.

‘The offer, solicitation, or acceptance of any gratification in contravention of any provision of Part II of the Act, or any other act in contravention of any such provision; and interpreted the term “gratification” money or any gift, loan, fee, reward, commission, valuable security or other property or interest in property of any description, whether movable or immovable.[6].

The Bribery Act No.11 of 1954 is only applicable to judicial officers and members of parliament.[7] and Police officers, peace officers, and other public officers [8] in respect to the government business[9] And not for the private sector.

3. The Anti-Corruption Act

The Anti-Corruption Act No. 9 of 2023 amended the scope of the term gratification established by the Bribery Act and interpreted the term as it also included sexual favors. Further section 80 of this act states who is bound to this act which omits the private sector employees and semi-government sector but adds public employees. Further, the below provision of this act is silent to the private sector employees which is also relevant to the sexual harassment offense at the workplace.

• Monitoring the implementation of anticorruption policies (Section 36) states that the Commission shall have the power to monitor and coordinate the implementation of effective, anticorruption policies and practices of the Government.

• Examination of laws, etc. to discover acts of corruption (Section 37) states that the Commission shall have the power to examine the laws, practices, and procedures of any public authority to discover acts of corruption and methods of work or procedures which, in its opinion, may be conducive to corruption.

• Advice and assist public bodies (Section 38) states that the Commission shall have the power to advise and assist any public authority on ways and means in which acts of corruption may be eliminated and how to promote the integrity and good repute of public administration.

4. The Industrial Dispute Act

Part II of the Industrial Dispute Act No.43 of 1950 states the functions of the commissioner and circumstances in which industrial disputes will be referred for settlement by conciliation by arbitration or by an industrial court and there is no provision regarding the harassment or any other offenses that are directed to the competent court.

Application to the Sri Lankan Context

As already established in Manohari Pelaketiya v H M Gunasekera and others[10] The employees in public sectors can directly file a fundamental right action against the subject or they can go with the Bribery Act No.11 of 1954 and its amended provisions enacted by the Anti-Corruption Act No. 9 of 2023 as concluded in Kathubdeen.[11] Case.

The employees in the public sector only could seek legal remedy under the fundamental rights provisions for discrimination in employment but private sector employees are not subjected to this and adopt a different procedure.[12]. However, Universities including the University of Colombo come under the semi-government sector adopt disciplinary codes, and balance the inquiry between the parties by way of mediation.[13]. Sexual harassment in the workplace is not addressed under the existing labor laws in Sri Lanka.[14] .

Conclusion

Accordingly, provisions on sexual harassment in Sri Lanka vary to the sectors in employment and that would challenge Article 12, i.e. the concept of equality, and therefore it leads to sectoral discrimination which made to think of reforms to balance all these three sectors complying with the Constitution of Sri Lanka, the Supreme law of the Country.

References

· Saraveswaran, Discrimination in Employment: A Critical Evaluation of Legal Responses Available in Sri Lanka (2017) Colombo Law Journal

· Randeniya Akhila, 'Sexual harassment in the workplace: High time to address labor laws' (The Morning, 14 May 2023) https://www.themorning.lk/articles/HKUAe7IvyueeG60ci458 > accessed 13 September 2024

· Uoc, 'Policy Against Sexual Harassment and Procedural Steps for Enforcement' (University of Colombo, 00) <https://cmb.ac.lk/policy-against-sexual-harassment> accessed 13 September 2024

· Maypole Donald and Skaine Rosemarie, 'Sexual Harassment in the Workplace' [September–October 1983] Vol 28 (No 5) Social Work <https://www.jstor.org/stable/23713702> accessed 13 September 2024

· Verite Research, ‘ Sexual Harassment at the Work Place Overcoming Barriers to Justice’ [2023] Verite Research Pvt Ltd <<Sexual Harassment in the Workplace — Overcoming Barriers to Justice | Verité Research (veriteresearch.org)>> accessed on 13 September 2024

[1]Verite Research, ‘ Sexual Harassment at the Work Place Over coming Barriers to Justice’ [2023] Verite Research Pvt Ltd <<Sexual Harassment in the Workplace — Overcoming Barriers to Justice | Verité Research (veriteresearch.org)>> accessed on 13 September 2024

[2]Maypole Donald and Skaine Rosemarie, 'Sexual Harassment in the Workplace' [September–October 1983] Vol 28 (No 5) Social Work <https://www.jstor.org/stable/23713702> accessed 13 September 2024

[3]ibid

[4]A Sarveswaran, 'Discrimination in Employment: A Critical Evaluation of Legal Responses Available in Sri Lanka' [2017] Colombo Law Journal

[5]ibid

[6]The Bribery Act No.11 of 1954, S.90

[7]The Bribery Act No.11 of 1954, S.14

[8]Ibid, S.16

[9]Ibid, S19

[10] SC (FR) No. 76/2018

[11] Kathubdeen v Republic of Sri Lanka (CA) No. 44/94

[12] Saraveswaran, Discrimination in Employment: A Critical Evaluation of Legal Responses Available in Sri Lanka (2017) Colombo Law Journal

[13] Uoc, 'Policy Against Sexual Harassment and Procedural Steps for Enforcement' (University of Colombo, 00) <https://cmb.ac.lk/policy-against-sexual-harassment> accessed 13 September 2024

[14] Randeniya Akhila , 'Sexual harassment in the workplace: High time to address labour laws' (The Morning, 14 May 2023) <https://www.themorning.lk/articles/HKUAe7IvyueeG60ci458 > accessed 13 September 2024