February 20, 2022
By Asra Haque & Xari Jalil
While some aspects of the Protection against Harassment of Women at the Workplace (Amendment) Act 2022 are welcome, many problems of the original 2010 Act, especially pertaining to the role and constitution of sexual harassment inquiry committees, are not addressed.
This was the sentiment echoed by speakers of a webinar on the 2022 amendments, organized by Voicepk.net and the AGHS Legal Aid Cell. Panelists included anchorperson and co-founder of Women in Media Alliance Pakistan, Tanzeela Mazhar, whose own sexual harassment case against her immediate superior in Pakistan Television (PTV) has been highlighted in the mainstream; academician, writer and founding member of the Women’s Action Forum (WAF), Amar Sindhu; and former chair of the Law and Justice Committee of the National Commission on the Status of Women (NCSW), Sohail Warraich.
The discussion began with Mazhar recounting her own experience of being sexually harassed for years by her boss at PTV. She stated that the harassment began in 2009 and took seven years for her organization to finally take action against the accused, during which she was professionally tortured and discredited by the PTV itself.
“Workplace harassment is made worse when a boss, who comes from a position of power, uses his authority to victimize you further when you refuse his advances.”
She detailed that her show was taken off air and that she was not given any professional assignment for five months.
“Because he was the sole authority, I could only appear on screen if and when he wanted.”
Mazhar recalled that her situation opened her eyes to the way power dynamics play a role in harassment complaints, where if one is harassed by a colleague or someone from their own tier, it is far easier to launch proceedings against them. However, if the harasser is a superior, they have the power to affect one’s career.
“I was taken off air, isolated… my panels kept changing last minute, my producers were scolded every day. It got to the point that no producer in PTV wanted to work with me,” she related. “The case wasn’t public at that time and no one except the two managing directors whom I formally complained to knew what was going on.”
She said that when she formally submitted her complaint per the 2010 Act, an inquiry committee was formed composed entirely of administrators of the organization – people who were colleagues of her harasser and therefore with vested interests.
“The support and bias is always in the favour of the boss. While these committees in some cases are helpful, when you make a complaint against a superior or someone with power, then that committee itself turns against you.” Mazhar stated, adding that her request for the inquiry report compiled by the committee was realized only after an order from the court after three years.
But her nightmare is far from over as she provided that she is currently embroiled in a defamation case lodged against her by her harasser for the past five years.
Sindhu believed there were three aspects to the 2022 Amendment that need due focus, the first being criminalizing harassment itself. She pointed out that sexual harassment in public spaces is recognized as a punishable offence, however it is not considered so within organizations. Secondly, it is made that much more difficult, and in some cases impossible, for a victim of harassment to attain justice if the harassment is taking place within a hierarchical order.
“One may ask how many institutions have committees set up in the first place, how many of them have a female member, etcetera. However, the real question is what the committee’s position is when a subordinate brings forth a complaint against a superior,” she said, providing the example of universities. “The Vice Chancellor has the power to form committees which will ultimately favour him.”
The writer also talked of the functions of sexual harassment committees, which she explained do not have the power to penalize those found guilty of harassment, but rather are authorized to recommend actions against the accused.
“However, the recommendation report is sent to the same mighty power who is interested in protecting himself and his organization.”
Referring to the reignited debate surrounding the harassment and violence against female students in Sindh’s varsities, especially Parveen Rind’s accusations and the mysterious deaths of Nimrita Chandani and Nosheen Kazmi, she said that once again no one has yet to be penalized despite the findings of inquiry committees in such cases.
“If sexual harassment is a criminal act, then the fact that guilty harassers are not penalized in institutions is a cause for immense frustration and mental torture. And then pressuring harassment complainants, their situation is made worse especially since there’s no legal, social and support system for them.
Former member of the NCSW recalled that in the September 2019 meeting of the Law and Justice Committee, in which parliamentarians, practitioners and even Tanzeela were present, it was agreed that the 2010 Act is inherently a faulty law
“It was inherently a problematic law because of the aspect of political negotiations, which the parliamentarians of that time had pointed out to us. The title of the law contains ‘protection for women against harassment’ but defines the complainant as ‘men and women’. And then, the rest of the provisions of the law were for women,” he explained.
He also pointed out that problem also lay in how harassment was explained which, interpreted by Justice Athar Minallah and then later by the Supreme Court of Pakistan in the Nadia Naz case, included a closed and exhaustive definition that harassment is rendered for the purpose of extracting a sexual favour.
“And now here we are,” he said, speaking of the changes that eventually were made in the 2022 Amendment, especially pertaining to how employees, employers and workplaces are defined. However, these changes do not address obstacles to implementation.
“The law depends on the goodwill of the employer. It gives employers the responsibility to implement it, form committees, display the code of conduct, share information etcetera, and no one else has the authority to maintain a check on this,” Warraich stated.
He agreed that while the Amendment does indeed talks of the composition of the committee, representation of employees, collective bargaining agents, as well as the role of a next of friend to proceedings (aspects already present in the 2010 Act), he also highlighted that these provisions pertain to support systems that are absent from organizations and are neither followed.
“Committees are still obligated to forward recommendations to the employer who is the only one empowered to implement a decision, and the law has yet to say whether the copies of the actual recommendation can be forwarded to the complainant or defendant so that they may challenge the decision of the employer if need be,” he explained some of the other pitfalls of the law.
He noted that the two new protections offered by the law are for former employees and for complainants against counter defamation suits filed by their harassers. However, he was of the view that many of the problems pointed out by Mazhar and Sindhu have yet to be safeguarded.
“Some aspects, especially regarding discrimination, are excellent,” he determined. “But there’s a long way to go.”