July 7th, 2021
By Ahmed Saeed
The Supreme Court of Pakistan in a judgment has regretted the limited definition of harassment provided in the Protection Against Harassment of Women at Workplace Act, 2010.
The court lamented that under the current scheme of legislation, the application of the law has been restricted to harassment of a purely sexual nature.
“To our great regret, all such acts of harassment that fall beyond the pale of restricted definition of actionable harassment under section 2(h) ibid; can neither be made cognizable or punishable by the Inquiry Committee and/or the Ombudsman,” the order read.
The 12-page document was authored by senior puisne judge Justice Mushir Alam as part of a three-member bench comprising of which included Justice Yahya Afridi and Justice Qazi Muhammad Amin Ahmad.
What was the case?
The judgment was delivered in the case of an employee of the state-owned broadcast station Pakistan Television (PTV), who had accused her seniors of harassing her.
The petitioner filed her complaint alleging workplace harassment under the 2010 Act before the Federal Ombudsperson for Protection Against Harassment of Women at Workplace against her two superiors in 2016.
She was subsequently terminated from the job in 2017 while her harassment was pending before the ombudsperson. However, the ombudsperson determined that not only the two accused persons were guilty of harassment, but also reinstated the petitioner on her service.
The ombudsperson also imposed a penalty of withholding of promotion for a period of two years and monetary fine against the two accused.
The accused challenged the decision before the President of Pakistan who set aside the ombudsperson’s verdict, declaring that the matter does not come under the ambit of sexual harassment. Rather, the case was an administrative matter, a decision that was also upheld by the Islamabad High Court (IHC).
Although the apex court also maintained the President’s judgment in the case, but also highlighted many legal deficiencies in the 2010 Act, bemoaning the narrow scope of the law. The verdict also held that the ombudsperson is not authorized to reinstate the petitioner.
Court avoids broad interpretation of ‘harassment’
The court also stated that it is obligated to interpret the act of harassment as defined in the 2010 Act, and demonstrated judicial restraint in interpreting the definition of harassment.
“Any other interpretation advanced by this Court to enlarge the scope of the charging section will violate the rights guaranteed under Article 12 of Constitution,” the order read.
The verdict declared that harassment in all forms and manifestations, may it be based on race, gender, religion, disability, sexual orientation, age-related, an arrangement of quid pro quo, and/or sexual harassment etc., affects and violates the dignity of a person as guaranteed under the Constitution of Pakistan, 1973.
“Current Act is a myopic piece of legislation”
The court observed that the current Act is “a myopic piece of legislation” that focuses only on a minute fraction of what constitutes harassment, and fails to address the issue in all its manifestations.
“Harassment in any society or organization is a testament to regressive behavior that creates an intimidating, hostile, degrading, humiliating, and offensive environment which has a devastating effect on any society or organization by adversely affecting its overall performance and development,” the order stated.
Restrictive definition of harassment counterproductive
The court pointed out that even in the title and preamble of the 2010 Act, the term ‘harassment’ is used rather than ‘sexual harassment’ but contrarily to the apparent intent, the term ‘harassment’ has been explicitly given a restrictive meaning in the legislation.
The judgement also held that this restrictive definition is a hurdle in the effective implementation of the law.
“Giving such restricted meaning to “actionable” harassment, by the legislature in its wisdom, impinges the very object and purpose for which the Act, 2010 was promulgated.”
The court further noted that, under the current law, if allegations levelled by a complainant are proven to be false and are made with malafide, action can be taken against the complainant. However, no such remedy is provided to the complainant.
“Unsurprisingly, given the draconian structure of the law, no remedy under the Act, 2010 is provided to the complainant, against whom action may be recommended by the Inquiry Committee for action making false and malafide complaint,” the court said.