Lawyers criticise sexual harassment act

The Equality for Men and Women Act has come in for some criticism from lawyers, mostly on the implications of a provision which seems to place the burden of proof partly on the person defending himself from allegations of impropriety.

The other provision which lawyers are finding difficult to come to terms with is the section which lays down the functions and status of the commission, particularly because nothing is said about their background and qualifications, and their independence from the executive.

The complaints led The Sunday Times to ask two lawyers, Lorraine Schembri Orland and Emmy D. Bezzina, to express their opinion on the implications of the law and specifically on the misgivings expressed by other lawyers privately.

But The Sunday Times also spoke to Chief Justice emeritus Joseph Said Pullicino, who had a completely different take on the matter.

Dr Schembri Orland and Dr Bezzina seemed to find some common ground, with both agreeing that the drafting of the law left much to be desired and Dr Bezzina calling it unhealthy in part and abusive overall.

Dr Schembri Orland said: "The constitution of an Office of Ombudsman on Gender Equality has long been discussed. The Commissioner does approach the function of an ombudsman but does not enjoy the same protection of tenure.

"The removal of the Commissioner is a purely administrative decision, whereas the removal of the Ombudsman would require parliamentary approval.

"The Commission is composed of members who are also appointed at the Minister's discretion.

Dr Bezzina does not like the way the appointments are purported to take place either. "In a truly democratic environment, this National Commission should be appointed with the joint consensus of the Prime Minister and the Leader of the Opposition and any other relevant body or organisation that may from time to time be deemed so competent."

Dr Bezzina does not like the idea of having the commission appointed by the minister "who, with all due respect, may feel free to appoint persons of a particular circle and which are well seen in his political eyes.

"A lot of discretionary power is left in the hands of the Prime Minister or the minister responsible for Social Policy. The commission cannot work in a truly democratic environment if it is directly responsible to the executive. The members of the commission have no rights of redress, bearing in mind that their appointment could be terminated or they could simply not be reappointed."

Dr Bezzina also points out that, whatever the commission does, can in truth be ignored by the complainant and the person against whom the complaint is directed.

He also has a problem with the fact that no qualifications are outlined, as does Dr Schembri Orland

"No qualifications are mentioned save for a vague reference to 'persons best suited to deal with issues of equality for men and women and/or, administrative issues connected therewith', Dr Schembri Orland said.

"Given the fact that the Commission will also have an investigative function into complaints on gender discrimination and sexual harassment, these guidelines are too vague," she says.

Dr Bezzina adds: "The commission should never be seen as a commission appointed by the political party in power... and, to add insult to injury, the prime minister (should not be given) complete discretion to choose such persons and form the commission...

"...the requisite qualifications are completely lacking in this law and remedial action should be taken in this regard to make the tribunal compatible and acceptable in a constitutional democracy..." he said.

Dr Schembri Orland notes that the Commission has the authority to:

¤ dismiss a complaint;

¤ report a case to the Commissioner of Police; or

¤ investigate ex officio.

"In the exercise of these functions, the decision of the Commissioner will be binding only if both parties agree to be so bound.

"Presumably, in the absence of such an agreement, if the Commissioner dismisses a complaint, the complainant can still proceed before the Industrial Tribunal.

"One would then have to see whether the dismissal would have any persuasive value on the Tribunal."

Moving on to the burden of proof, Dr Schembri Orland explained that the principle of the presumption of innocence "is a pillar of our legal system. The prosecution has to prove the charge 'beyond reasonable doubt' in criminal proceedings.

"In civil proceedings, the burden of proof 'on a balance of probabilities' rests with the plaintiff.

"To a certain extent, the Act however provides for an inversion of the burden of proof in civil complaints because it is the employer who will have to prove that he/she took such steps as are reasonably practicable to prevent such sexual harassment," she says.

"This defence, for example, may require knowledge of the organisation of the business, which information is more readily available to the employer but not to the employee.

"This inversion has been a cause for concern but is justified on the assumption that it is necessary to 'level the playing field' between the employer and the employee (complainant)," she concedes.

Dr Bezzina is a little harsher.

"This Act runs counter to established principles of law. It has always been maintained that he who alleges must provide proof of what is alleged, otherwise the case should be dismissed.

"In this Act, it is the defendant who has to produce this proof in certain instances. In other cases, resort must be had in the courts.

"Hence, in reality this Act is no more than a political gimmick to win the feminine vote, even though it refers to equality for men and women," Dr Bezzina concludes.

But Judge Said Pullicino sees things differently.

"One should be careful not to go beyond what the legislator willed when interpreting a law," he says.

"The law in no way mentions a tribunal. It set up a commission with functions that are mainly targeted at generating greater awareness on problems of gender equality.

"It is a pro-active body that has the task of identifying areas of discrimination on grounds of sex and to suggest and promote remedial and corrective measures.

"The commission does have an investigative role, both generally and specifically, but the legislator clearly stopped short of empowering it with passing definitive judgment on particular complaint.

"The proviso that the commissioner's decision cannot affect the interests of the parties unless they both agree that they should submit themselves to it means that the commissioner's decision does not directly determine the guilt or innocence of the accused and still less the civil rights and obligations of the parties."

Judge Said Pullicino also points out that the commissioner investigating the complaint is bound by the provisions of the Inquiries Act to ensure that the rights of the person under investigation are adequately protected.

"The commissioner simply decides whether, in his opinion, a complaint is founded. Since the commission is not a tribunal per se, it does not appear that the independence of the commission and the security of tenure of its members are mandatory requisites."

The constitution already provides protection from discrimination on grounds of sex, Judge Said Pullicino said.

"The Act attempts to incorporate that fundamental human right in ordinary legislation. It also provides a practical tool to ensure gender equality and identifies specific situations as criminal offences or discriminatory acts, providing machinery to obtain redress.

"When investigating individual complaints, the commissioner can only marginally affect individuals. This is generally indicated when he decides to dismiss the complaint. Even then, however, that decision in no way affects the individual's right to seek redress under other laws.

"When the commissioner is satisfied that the facts as proved constitute a criminal offence, he has the duty to refer the case to the Commissioner of Police for appropriate action.

"His conclusion in no way prejudges the case," Judge Said Pullicino stressed.

"The Commissioner of Police would still have the duty to investigate the case himself and, if he decides to institute any criminal proceedings, the accused would still enjoy all the constitutional safeguards to a fair trial by an independent and impartial court.

"In these cases there is obviously no shift in the onus of proof.

"In civil proceedings, the Act stipulates that justification can be a line of defence. It is up to the defendant to prove that justification. The complainant, however, still has to prove that the facts that aggrieved him or her have really taken place and that it was the defendant who should answer for them.

"It is therefore not enough for the complainant to allege that the facts that aggrieved him had taken place. There is certainly no shift in the burden of proof in these cases," Judge Said Pullicino concluded.

He does have some criticism for what he describes as bad drafting in some parts of the Act.

"It is actually not clear, from a reading of the whole act, whether the power lies with the commissioner or with the commission. The law seems to indicate that the power ultimately lies with the commissioner and that decisions are taken by him, with the assistance of the commission, rather than the commission as a whole.

"The Act also stipulates that the commission has to be made up of 'at least three women'. This in reality means that six women could be appointed as members of the commission and the commissioner could also be female. I do think that the drafting is rather unfortunate."

Judge Said Pullicino agrees it would have been wiser to stipulate minimum qualifications for the commissioner "that would ensure the persons' suitability for the office". He does not feel that there is need to specify qualifications for the other members of the commission.

"The law much depends on how it is applied. If it is applied in a reasonable manner, it could be very useful," he says.

It would seem, then, that there is less to fear from the Equality of Men and Women Act than some would think.