The Bhutanese Leading the way.
It is said that a court speaks through its verdicts and in recent times a string of verdicts from the Supreme Court, High Court and even district court shows a higher conviction rate of sexual harassment cases and a willingness to give weight to the voices of victims.
The verdicts
Recently the Supreme Court in March reversed the Judgments of the High Court and District court to uphold the dismissal of the 7 Taktse lecturers. The court said that the lecturers violated the teachers code of conduct and there was prima facie case of sexual harassment.
Interestingly, it said upholding the decision of the lower courts would set a bad precedence and it said its verdict was preventive in nature. It said the lecturers cannot be reinstated with the aim to prevent sexual harassment in school, colleges and other educational institutions.
This was a landmark verdict as it gave precedence to the issue of sexual harassment rather than the technicalities of how the lecturers were dismissed.
Similarly, the Supreme Court on 24 March overturned the decision of the high court in the case of the former STCBL CEO Kuenga Namgyel who had been compulsorily retired by his board with benefits after admitting to sexual harassment.
However, two months after the decisions of the board the lawyer of the former CEO filed a wrong termination suit with the main argument being that since sexual harassment is a penal matter the board cannot decide on it.
The district court upheld the board’s decision based on the legal principle of Estoppel which prevents person from asserting something contrary to a previous statement or action.
Things took a surprising turn in the High Court when it overturned the district court’s judgment saying the investigation committee did not have the legal authority to investigate or decide on the matter since sexual harassment comes under the penal code. The former CEO was given a six months Nu 80,000 compensation for harassment.
However, in what is another landmark judgment the Supreme Court overturned the High Court’s judgment, holding that Mr. Namgyel had not only admitted to the wrongdoing but also accepted the Board’s decision and resigned from the company with benefits.
The Court also applied the principle of estoppel, and said Mr. Namgyel stands compulsorily retired from his position.
The Court at the same time warned the STCBL Board to adhere to the relevant provisions of the law in such matters in the future.
This was the Supreme Court giving prominence to the admission of sexual harassment than issues of weather the committee has the right to decide on a penal matter.
The High Court itself on 29 March convicted a step father for rape of a child above twelve years of age by overturning the verdict of the Punakha District Court which had acquitted the defendant for lack of direct or credible evidence like a medical report or lack of eyewitness.
The High Court cited several reasons for its decision, including a letter sent by the defendant to the victim, in which he partly admitted to having committed the wrongdoing.
The court also noted that verbal evidence, including the victim’s statement to her friend, matron, and the police, which were all consistent was also sufficient to convict and sentence the defendant.
The court stated that in cases of rape, the victim is often the only witness. In this particular case the victim had also been living under the same roof as the step father as a dependent.
If the Supreme Court upholds the High Court decision, then it will be yet another landmark in terms of rape conviction for rape of children.
In the past, sexual abuse and rape of children have been notoriously difficult to convict as firstly the children in fear only report the crime a while after it has occurred which means no medical evidence. Then the testimony of children is also not taken seriously.
All of this could change if the Supreme Court upholds the High Court verdict in the Punakha case.
Even when it comes to district courts there is greater sensitivity on the matter.
Earlier in the year the Trashigang District Court convicted a Sherubtse College assistant lecturer for sexual harassment and harassment complaints against him by female students in his class.
Similarly, the Phuentsholing Dungkhag court recently convicted an assistant professor of College of Science and Technology (CST) for eight counts of sexual harassment and and one count of body shaming.
What is common to all the above cases is firstly the courage of students and women to come forward and file complaints against what are every powerful people in their lives like a step father, boss assistant lecturer and assistant professor.
The second common aspect is a judiciary which has become more attuned to the crime of sexual harassment and rape by firstly giving more weight to the victims’ statements and secondly give it precedence over other legal and procedural matters.
In criminal cases the judiciary tends to make the burden of proof very high and when it is not high enough a benefit of doubt is given to the accused. This is how many sexual harassment, abuse and rape cases are not convicted or many times not even brought to court for prosecution. However, the judicial verdicts are signaling a change.
The Judiciary speaks
The paper contacted the Chief Justice of Bhutan Chogyal Dago Rigdzin
on the issue and the Chief Justice in turn nominated a senior lawyer from the High Court to speak on the issue.
The senior lawyer said the judgments are all made keeping in mind the legal principles of ‘proving beyond reasonable doubt’ and ‘preponderance of evidence’.
At the same time, he said in Bhutanese culture it takes a lot of courage and is very rare for victims to come forward and file complaints on sexual crimes.
He said in the past sexual harassment was widely prevalent in Bhutan like ease teasing which was culturally accepted and there was even touching and in eastern Bhutan there were controversial practices like night hunting.
He said back then there was not much awareness about what constitutes sexual harassment.
However, the senior lawyer said the current times are different as there is widespread awareness about sexual harassment and how it is wrong and a crime.
The lawyer also said that sexual harassment must still be rampant and so when some people come forward it must be taking great courage.
He said for a student to report against a teacher it is not easy as the student gets knowledge from the teacher and gets assessed by the teacher.
He said in the Punakha case people may think that circumstantial evidence is not enough for proving beyond reasonable doubt, but when even circumstantial evidence meets the standard of proof then it is enough and in that case it was between a step father and daughter under the same roof.
The lawyer said that what matters also is how rampant sexual harassment is and official reports and media reports show it to be rampant.
He said there are various theories of punishment, and in a situation where sexual harassment is rampant the court needs to take apply the deterrence principle and hence take preventive measures.
However, he said, not withstanding the above the main thing at the end of the day is evidence or proof of the crime.
Another senior figure also from the judiciary said that the relationship between the teachers and pupil and is very sacred and such violations cannot be tolerated. He said that people in authority also have a certain responsibility to people under them.
He said if such things are not dealt with then they will keep happening. He said the issue of sexual harassment is more substantive and important than some procedures.
The senior figure said that every verdict of the Supreme Court is signed by all the Justices and each verdict creates a precedent and can be used for legal arguments in the courts.
Another official who also works in the higher judiciary said that under Article 9 of the Constitution on Principles of State Policy Section 18 clearly says, the state shall endeavor to take appropriate measures to ensure that children are protected against all forms of discrimination and exploitation including trafficking, prostitution, abuse, violence, degrading treatment and economic exploitation.
The official said that due process of law will always be followed but at the same time people making allegations of sexual harassment will also be taken seriously.
The Bhutanese had investigated and brought out the Sherubtse harassment case. The paper also brought out the plight of Punakha minor who had been raped by her step father and the police were not prosecuting the case at the time citing lack of evidence. This paper was also the first to write about the sexual harassment case of the former CEO of STCBL.
