Over the years, as a law practitioner and a lecturer, I realised that Pakistan’s law on sexual harassment at workplace requires immediate reforms.
Cases of sexual harassment in Pakistan are primarily being dealt under the Protection Against Harassment of Women at Workplace Act, 2010. For starters, section 2(e) of the Act that defines the Complainant doesn’t include a transgender citizen, even after the decision of the Supreme Court in the Aslam Khaki case reported in 2013, whereby transgender people have been recognized as the “third gender”.
Then, there is section 2(h), which defines sexual harassment as “…an unwelcome sexual advance, requests for sexual favours or other verbal or physical conduct of a sexual nature that interferes with work, is made a condition of employment or creates an intimidating, hostile or offensive work environment constitute sexual harassment…”. The above outline does not include sexually coloured remarks, gazing, gossiping, forcibly showing or discussing pornography, voyeurism and stalking.
Even the classification of an “employee” under section 2(f) of the Act is vague. Under the Act a complaint can only be lodged by an employee. The Act does not allow an accused or a Complainant to be represented through lawyers, which I feel is unconstitutional. The findings of the Ombudsperson would eventually be justiciable (before a High Courts’ constitutional jurisdiction) where the role of lawyers becomes imperative.
Over to Section 3(2), which talks about a sexual harassment committee that should be formed by all employers. It is worth considering whether at least one member of the Inquiry Committee should be drawn from the social sector, who has some experience dealing with instances or cases of harassment or sexual assault.
It is also important to note that the minor or major penalties provided for under section 4 of the Act, cannot be looked into in isolation. Would “sexual harassment” amount to “misconduct” under the Standing Orders Ordinance, 1968, for the purpose of termination? Would compensation paid to the complainant, through deduction from the wages of the accused employee, be sustainable under the provisions of the Payment of Wages Act, 1936?
Such issues need to be clarified to avoid the risk of conflict with other prevailing provisions of law.
One of the penalties that can be imposed under the Act is that of compensation. However, no criteria has been prescribed to determine such compensation. Factors such as mental trauma, pain, suffering and emotional distress caused to the aggrieved party, opportunities lost in her career due to the act of sexual harassment, medical expenses incurred by the victim for physical or psychiatric treatment, income and financial status of the Accused, feasibility of making such payment in lump sum or in installments must be considered before making an order for compensation as a penalty.
As for section 11, it requires an employer to display and circulate a code of conduct on sexual harassment both in English and Urdu. I can think of many companies in Pakistan that has failed to do so.
Training sessions regarding expected/acceptable standard of male-female interaction at the workplace should be made an integral part of the Act. It is important to note that under India’s new Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal Act), 2012, such trainings are mandatory.
Today is the modern age of electronic media, where a crime can be committed through other means such as social media or via texting etc. In Pakistan, the laws have given protection to women from cybercrime, yet the offence of sexual harassment is not clearly defined under the Prevention of Electronic Crimes Act, 2016.
Therefore, it can be argued that the laws do exist to protect women at workplaces and public spaces. The legal framework in Pakistan might not be perfect, but it is helpful enough. Yet, there is a strong need to educate women and raise awareness amongst the general public about the existence of these law.
Predators become bolder due to lack of reporting of their crimes. Instead, women should be emboldened to hold these people to task.
This article was originally written by Muhammad Ahmad Pansota