January 11th, 2021
An important decision taken by a three-member bench of the Supreme Court on Monday, resulted in them granting “Leave for Appeal” after hearing an appeal filed by Meesha Shafi’s legal team on whether a self-employed person has a legal right to invoke the “Protection against the Harassment of Women at the Workplace Act 2010”.
Tomorrow, the Supreme Court of Pakistan hears my appeal on whether I, a ‘self employed person’ have a right, as per the law, to be heard after being harassed and therefore expect justice on merit as an equal citizen.
— MEESHA SHAFI (@itsmeeshashafi) January 10, 2021
It is integral to note that “leave to appeal” does not mean that the SC bench has agreed to the arguments presented by Shafi’s legal counsel, rather it implies that the technical and legal points raised by Meesha’s counsel regarding the Lahore High Court’s interpretation of the “Protection against the harassment of women at the workplace act 2010” are worth deliberating/debating on and have been slotted before the apex court for a hearing.
At the same time, the decision has been widely celebrated by women’s rights activists and civil society organizations who have termed it an important victory for the resilient complainants and their legal teams.
Supreme Court of Pakistan grants leave in @itsmeeshashafi case! Congrats to SC team Khuwaja Ahmad Hosain & @noorejazch 👏🏾👏🏾
Granting leave to appeal means SC has accepted to hear the case on legal points whether Meesha falls under the jurisdiction of Sexual Harassment Act.
— Nighat Dad (@nighatdad) January 11, 2021
A BREAKDOWN OF THE LEGAL ARGUMENTS
The fundamental legal argument raised by Shafi’s legal team being led by Advocate Khwaja Ahmad Hussain pertains to the scope of the Protection against the Harassment of Women at the Workplace Act 2010.
“It is of the utmost importance that the Supreme Court decides which ‘category’ of people are being awarded protection under this Act. Because the LHC had previously decided that people like Meesha who are not ‘full-time employees’ (and are working under flexible/informal arrangements) cannot even invoke the law for their protection,” he said. “I argued in front of the apex court that such a ‘narrow interpretation’ goes against the ‘spirit of the law’ and that the law deserves a ‘broader interpretation’ to be effective. The SC decided that the points we raised are worth examining and hence granted us the leave to appeal,” explained Khwaja while talking to Journalist Asad Ali Toor outside the SC.
The Supreme Court not only deemed Khwaja’s arguments worthy of debate but also declared the issue “a case of first impressions” which means that this technical or legal point regarding the interpretation of the Harassment of Women at the Workplace Act has never been heard of before.
Meanwhile, the SC will not hear arguments from both sides to decide on how the law should be understood in the future, as It goes without saying however the SC chooses to interpret this law will end up having long-term legal implications for women who allege harassment in the workplace in future.
BROADER IMPLICATIONS OF THE DECISION
Advocate Noor Ijaz Chaudhry, an assistant of Advocate Khwaja, while discussing the possible broader implications of the law, explains that the Protection against Harassment of Women at the Workplace Act 2010 was passed as a ‘beneficial statute’, meaning that the law was intended to benefit “all women”. But the way this law had been interpreted by the LHC, has ended up in excluding a large segment of the population which according to their legal team goes against the spirit of the law.
“Consider students for instance or rural women employed via informal contracts,” she said, speaking to Voicepk.net. “According to the LHC’s interpretation, these segments of the female population cannot even invoke the law for their protection. This is such a big issue because we have been trying to get this appeal through for over a year now.”
Advocate Noor’s argument makes sense in the context of a large chunk of Pakistan’s economy being informal and that a majority of these workers do not have employment contracts which leaves them outside the protection offered by this law. Moreover, owing to the growth of the gig economy, whereby employees work under flexible work arrangements a limited or narrow definition of the law will be tantamount to excluding remote, home-based, freelance workers from the ambit of the law.
Meesha’s case has now become bigger than the issue, not just limited to her celebrity persona. The ball is now in the proverbial ‘court’. How the SC interprets this law will make or break Pakistan’s pushback against ‘workplace harassment’.