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When the SC held that workplace sexual harassment violates equal legal protection

29 Jun 2021

  • A look back on P.S. Manohari Pelaketiya vs. the Education Ministry Secretary and Others (SC/FR/72/2012) 

  • Strap: ‘Indecent behaviour/conduct, intolerable and unacceptable’: Justice Anil Gooneratne 

By Ruwan Laknath Jayakody    Sri Lanka is currently seeing its first significant movement against sexual harassment in the workplace, especially focused on female employees being harassed by their male peers or superiors. Against this backdrop it is illuminating to look back on a Supreme Court (SC) judgment from 2016 on the same subject. The case was P.S. Manohari Pelaketiya vs. the Education Ministry Secretary and Others (SC/FR/72/2012) heard by Justice Anil Gooneratne, Justice Upali Abeyratne and then Chief Justice Kanagasabapathy Sripavan, with the relevant observation being made by Justice Gooneratne.  Justice Gooneratne noted that the constitutionally enshrined and guaranteed Fundamental Rights (FR) of equality before the law and equal protection of the law are infringed and violated in the context of sexual harassment or workplace stress and strain which results from oppressive and burdensome conduct on the part of those holding Executive office.  In this case, the petitioner, who was a graduate teacher and was serving as the Teacher of Eastern Music at the Mahanama College, Colombo 3, alleged of sexual abuse and various harassments including those of a serious and sexual nature, at the hands of one of the male teachers (a close associate of the School Principal) who had made unwanted advances, and the School Principal. Even though the matter of indecent behaviour had been brought to the notice of the school authorities (the Principal and the teacher-in-charge of disciplinary matters, the Education Ministry Secretary, the Education Minister, the President and Teachers Union), nothing had been done in this regard. For his part, the School Principal had not approved salary increments for the petitioner for certain years or the transfer application put forward by the petitioner. After the Women and Children’s Bureau of the Kollupitiya Police investigation officers intervened upon the receipt of an anonymous complaint, the male teacher in question had been temporarily transferred to the Prince of Wales College, Moratuwa, by the Education Ministry, due to complaints made by the Old Boys Association of the Mahanama College. Despite complaints by the petitioner, the Education Ministry had not conducted inquiries against the teacher in question and the Principal.  The alleged violations included - improper and undue suggestions made to the petitioner by the Principal and the teacher, the latter who also attempted to exert pressure on the petitioner and threatened to and sought to influence the authorities to discontinue her services; the male teacher in question expressing a desire to embrace and kiss the petitioner; the male teacher in question continuing to harass and exert pressure on the petitioner; acts of character assassination perpetrated by the male teacher in question, against the petitioner, among the male teaching staff and students; improper undue advances by the male teacher in question; the male teacher making a suggestion to the petitioner that she should live together with him and that he would purchase a house for the purpose; the male teacher in question kissing the petitioner; and the male teacher continuing to harass and abuse the petitioner. In turn, the petitioner has stated that she has undergone mental trauma as a result of such. Subsequently, a case was filed at the Colombo Fort Magistrate’s Court against the male teacher in question. In the House of Lords decision in Regina v. Ireland and Barstow, it was held that even silent phone calls made to women amounted to an assault.  Only after all that had happened the Education Ministry subsequently commenced a formal inquiry against the Principal and the male teacher in question. As a result, it had been recommended that the Principal be compulsorily retired and the teacher in question be interdicted. Afterwards, a charge sheet was issued against the latter.  The SC noted that the petitioner was a victim of circumstances, and especially of continuous sexual harassment and abuse by the school authorities, inclusive of the Principal and the male teacher in question. Justice Gooneratne described the prolonged and oppressive behaviour and conduct of the Principal and the male teacher in question as both “intolerable and unacceptable” and acknowledged that such had caused “sufferings and harm” to the petitioner.  The Court further observed that continuous abuse and sexual harassment over a period of time would cause physical and mental damage to any human being, adding on the other hand that continuous threats and abuses could also make a person unwell, both physically and mentally. It is not possible, the Court noted, for a female to resist such abuses, unless she is a strong personality who could react and retort to such abuses and harassment and make the abuser in turn shamelessly withdraw, upon being exposed to the public as someone exhibiting indecent conduct.  Justice Gooneratne explained that these views of his, expressed regarding aspects pertaining to abuses committed by public servants, would rightfully be endorsed by any law abiding citizen.  According to the Court, public officials should understand that the petitioner, in this case, was made to suffer and in turn acknowledge and accept the reality of the issue.  Moreover, the Court noted that for her part, the petitioner needs to be adequately compensated for the loss caused to both her life and reputation, and thus directed the Principal and the male teacher in question to personally pay compensation to the tune of Rs. 100,000 each to the petitioner.  As per the SC, Sri Lanka boasts of both Constitutional as well as international obligations to ensure equity and gender neutral equality which cannot be ignored.  While Article 12(1) of the Constitution guarantees the right to equality before the law and equal protection of the law, Article 12(2) of the Constitution declares that no citizen shall be discriminated against on the grounds of, among others, sex. Furthermore, Article 12(4) of the Constitution emphasises that nothing should prevent special provisions being made by law, subordinate legislation or Executive action, for the purpose of the advancement of women, children and differently-abled persons, and that this regime of affirmative rights cannot be restricted or limited except by law. These Constitutional provisions, Justice Gooneratne explains, articulate the Constitutional imperative of giving due recognition to women folk, which in turn would result in equality and non discrimination among the sexes and can therefore, as per Article 15(7) of the Constitution, only be restricted or limited by law, in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing the due recognition and respect for the rights and freedom of others, or to meet the just requirements of the general welfare of a democratic society.  Also, as a State Party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Sri Lanka has undertaken international obligations to eliminate all forms of discrimination against women. Additionally, there are other international obligations that Sri Lanka has undertaken and enacted enabling domestic legislation concerning giving vent to these global rights in favour of women.  In conclusion, the Court held that the continuous course conduct on the part of the two said respondents, offends and flies in the face of Article 12 of the Constitution, and therefore found that owing to the acts of continued harassment, the petitioner’s FR as per Articles 12(1) of the Constitution had been violated.  Furthermore, the Court pointed out that the relevant authorities had failed to realise and understand the plight of the petitioner in the hands and control of indecent public servants within school premises.  “Such behaviour and conduct would be unacceptable to any decent society,” Justice Gooneratne emphasised.


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