D-Day for the Sexual Harassment Bill
Minister Grange must plug the holes at this stageTuesday, April 06, 2021
When the Joint Select Committee of Parliament meets today to continue its deliberations on the Sexual Harassment Bill it is my understanding that its chair, Minister Olivia Grange, is desirous of having this as the final meeting of the committee before the Bill is sent to both Houses of Parliament for further consideration and eventual passage.
For those who are unfamiliar with the role that a joint select committee plays in our lawmaking process, you should note that when a Bill is sent to such a committee, it is the hope of the Government of the day that, on account of the time that the Bill spends in committee, that it will spend less time when it is taken through both Houses. The rationale, a logical one, is that when a Bill spends time being considered by a joint select committee, it is usually subject to far greater expert scrutiny than it would be exposed to had it not passed through such evaluation. This is because the Committee hears from experts on the subject matter, but also the committee has at its disposal, in real time, the Solicitor General and the legislative drafting experts, who are on hand, as part of the technical team, to advise on the thornier legal questions and desired wording when these issues arise during deliberations. Additionally, as the committee is less glamorous, you tend to find that there is less political grandstanding by political members, and this lends itself to far greater productivity.
Whilst mindful of the foregoing advantages, in the instant case of the Sexual Harassment Bill, and not being unmindful of the urgency in getting this Bill on our statute book, I would urge the minister to either hold a marathon session or postpone her desire to have this as the final meeting before the Bill goes to the lower and the upper houses of Parliament. There are still holes that we would do good to fix, as the only thing worst than not having this Bill become law, is to have a bad Bill passed into law.
The issue of victimisation, which I had mentioned in the article published in the Jamaica Observer on , is still outstanding. At its last meeting (March 31, 2021) the committee identified the omission of victimisation as a free standing prohibition. It is said that the identified omission can be cured by the fact that the parish court does have the statutory power, pursuant to the Criminal Justice (Administration) (Amendment) Administration Act, to make a restitution order to the victim of a crime, and so with this in mind the state of play is not as dire as some, including myself, would think. Of course, I take that view on board, but the restitution order mechanism, though helpful, is not the solution. In the first instance, it is to be noted that in the proceedings that are envisaged at clause 38 the criminal court will be engaged, applying the higher and more difficult standard of proof, with the singular issue of the guilt or innocence of the alleged perpetrator who has been charged with committing any of the specified adverse actions listed. The fact that the court is empowered to make a restitution order does not somehow convert the procedure into a civil one, where the court will be engaged in the process of ascertaining, through the consideration of oral and documentary evidence, the actual feelings and effects of the retaliatory action. A restitution order, as a tool of the justice system, has its origins in the world of criminal law, as lawmakers tried to balance the scales by ensuring that victims of criminal conduct (usually in the instance of property or financial crime) are not left out of consideration by the court. However, a brief survey of the jurisprudence on damages in victimisation/retaliation claims should reveal to committee members that the enquiry process involved in assessing the appropriate damages in retaliation cases would make the restitution process, as conducted in the criminal court, an inferior procedure in determining issues of injury to feelings caused by the retaliation. The fact of the matter is that there can be instances in which an affected party can claim aggravated and exemplary damages and the restitution process is not designed for such a claim. In fact, I would suggest that should the committee rely on the restitution order procedure, it is not difficult to envisage someone making a constitutional argument via section 19 of the Jamaican Constitution that the inadequacy of the procedure and the absence of a victimisation prohibition in the Bill amounts to discrimination and/or inhumane treatment, which would amount to a breach of our constitution. This would be the unfortunate result of avoidable haste, and knowing how committed this minister is to completing the work commenced by former Prime Minister Portia Simpson Miller, it might be prudent for common sense and foresight to trump expediency. This can be done I would say by creating a retaliation prohibition than can be pursued at the Sexual Harassment Tribunal (SHT).
The Bill makes provision for the SHT. In terms of its proposed functions and jurisdiction it represents a hybrid type of tribunal in that it will hear claims brought under the Bill and it will investigate, or at least commission investigation, where it receives a complaint. The investigatory function and procedure is outlined at clause 27, and the result of the investigation is to be presented to the tribunal in a report in accordance with clause 28. This is a rather novel approach to doing things in the context of our jurisdiction, as we do not give powers of investigation to the very body that is also charged with the duty of hearing the complaint. The tribunal's commissioned investigation will be conducted by an authorised officer as distinct from it being conducted or overseen by one of the 12 members of the tribunal's panel.
However, whilst giving the authorised officer the task of conducting the investigation might seemingly reduce the potential for conflict/bias, we note that in the first instance, as set out at clause 27, it is the tribunal itself that will decide if an investigation is needed. It does this by forming a preliminary view as to whether the complaint is a frivolous or vexatious one. This is the tribunal performing a quasi-investigatory function before it moves on to perform its adjudicatory role. In one sense, those in favour of this approach can contend that when it makes the decision to authorise an investigation, the SHT is taking a view as to whether there is sufficient basis for proceeding with an investigation, so that unmeritorious claims are weeded out.
Nonetheless, I sense a high degree of duplication as we note that the Bill requires all institutions to have a sexual harassment policy and one would love to think that any credible policy would contain an investigation procedure to be used. Thus the results of such an investigation can be, and must be used by the SHT when a claim is brought. The tribunal would be sufficiently experienced to determine at a hearing if an investigation was inadequate, and thus remove the need for a tribunal-commissioned investigation and an authorised officer. The strengthening of the objective can be achieved by conferring on the tribunal the power to make adverse findings if it is found that the institution lead investigation was inadequate. Flowing from such adverse findings would be a percentage uplift in damages, where the tribunal finds that there was a breach. This is a less onerous method to achieve the objective and puts the responsibility squarely in the hands of the institution to conduct an investigation, thus leaving the tribunal to concentrate solely on the traditional adjudicatory role that it must perform.
This is a radical piece of legislation, and we salute the ambition of those who are working to make it a part of our statutory armoury as we aim to improve the quality of life of our citizens. However, it is far too important a legislation to get wrong, and Minister Grange should not sign off until the holes are plugged.
Matondo K Mukulu is a practising attorney and barrister in London, England. Send comments to the Jamaica Observer or email@example.com.
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