Daily Times

No less than 80 young teenage girls have reportedly been harassed in Bahria College Islamabad. The reported offender is an examiner employed by the Federal Board of Intermediate and Secondary Examination. He is said to have not only inappropriately touched these young girls but made inappropriate comments as well. What is more is that this was covered up by the College administration.  It is therefore important to have an informed discussion on the issue of harassment in general and sexual harassment in particular. Another disturbing aspect of this is the question posed by certain media houses as to what these girls were wearing. It is incredible that such a question can even be posed in this day and age. What follows in this article is the result of discussions I have had with leading feminist activists and women lawyers internationally on this issue and the conclusions I have drawn from them.

It should be remembered that when a professor at a law school in Lahore was accused of harassment by a female law student around four years ago, the professor’s defence made a mockery of the existing law on harassment at work place. The said professor had been accused of deliberately unzipping shoulder zippers on the student’s outfit. It was said it was merely an inadvertent tap on the shoulder that caused it and therefore it was not sexual harassment. Secondly it was argued by the counsel in the case that the Protection against Harassment of Women at Workplace Act 2010 did not apply because the student was not an employee.

Perhaps the learned counsel had not bothered to read the definition of harassment under the said law: “harassment means any unwelcome sexual advance, request for sexual favours or other verbal or written communication or physical conduct of a sexual nature or sexually demeaning attitudes, causing interference with work performance or creating an intimidating, hostile or offensive work environment, or the attempt to punish the complainant for refusal to comply to such a request or is made a condition for employment”.

The comma after sexually demeaning indicates that everything afterwards relates to harassment other than sexual harassment. To argue that an institution of higher learning is not a workplace also vitiates the spirit of the law.

The definition of the workplace under the law is: “workplace means the place of work or the premises where an organisation or employer operates and includes building, factory, open area or a larger geographical area where the activities of the organisation or of employer are carried out and including any situation that is linked to official work or official activity outside the office.”

The definition of an organisation may also be reproduced here: “organisation means a Federal or Provincial Government Ministry, Division or department, a corporation or any autonomous or semiautonomous body, Educational Institutes, Medical facilities established or controlled by the Federal or Provincial Government or District Government or registered civil society associations or privately managed a commercial or an industrial establishment or institution, a company as defined in the Companies Ordinance, 1984 (XLVII of 1984) and includes any other registered private sector organisation or institution”. It does not get any clearer than this.

A university is an organisation and a professor is an employee. The sexual harassment in question can happen against not just another employee but any woman who happens to be present at that workplace. For example if a woman customer is inappropriately touched by an employee of an organisation on the premises of that department, it would be sexual harassment in the law.

The inquiry committee tragically bought these spurious arguments by the professor’s counsel. The student in question appealed to Ombudsperson who ruled in her favour. Nevertheless, the said professor reportedly managed to get a ‘presidential pardon’ under the Section 9 of the aforesaid law. He was helped in this by the unstinted support he received from the Lahore’s ‘elite’ lawyers who rallied behind him and began a campaign of vilification against both the Ombudsperson and the student. The matter thus was hushed up.

Women are human beings who have agency of their lives and bodies. A truly empowered woman is a force stronger than the pen and the sword. This was said by none other than this country’s founding father

Obviously every accused deserves a robust defence and fair shake within the bounds of ethics by which all lawyers are bound at least in theory. In the case mentioned above, the facts were not really in dispute. The professor’s actions had made the student extremely uncomfortable. The test here is not even the professor’s intent — which can only be a mitigating factor at best — but whether or not the victim felt harassed. Secondly there should be a rebuttable presumption of truth attached to the victim’s claim because she has no reason to come forth and make such a claim in a society like ours.

There can obviously be a rebuttal whereby the accused should be able to show why a woman would go out of her way to accuse him of harassment. The defence in this case did not show any such motive on part of the complainant because there was none. If I were advising the professor in question, I would tell him to apologise unconditionally and profusely to his victim and accept that he had made a terrible mistake. To err is human and that acceptance is itself a mitigating factor.

This is where the system of plea bargains and good behaviour comes up. Unfortunately lawyers do not always think like that, at least in our part of the world. We come up with spurious arguments to get our clients off. Ethically if you are not convinced of your client’s innocence you only argue on mitigating factors. Ethics were long thrown out of the window in this country. Ideally the accused in the Bahria College case should be asked to show what motivation not one but close to a hundred girls have in accusing him. It would be a daunting task for his defence counsel.

Finally we, the men, must understand a few other things. Whatever a woman wears, jeans, a miniskirt or a bikini, it is not invitation for you to touch her inappropriately or to harass her in any manner.  Unless we get over this damnable mindset, all pervasive in this society due to people like Orya Maqbool Jan sadly a nominee of PTI for the Punjab caretaker CM position, that always blames the victim and resorts to ‘slut-shaming’ women, there can never be any progress in Pakistan. Women are human beings and have agency of their lives and bodies. A truly empowered woman is a force stronger than the pen and the sword. None other than the founding father of this country said this.

The men in this country must refrain from acting as guardians or control freaks out to make choices for women. A true gentleman’s honour does not reside in the choices and actions of his female family members who are individuals in their own right and vice versa. What she decides to do with her body should always be her consensual choice and not that of the male members in her family or hirsute members of the religious clergy.

The writer is a practicing lawyer and a Visiting Fellow at Harvard Law School in Cambridge MA, USA. Twitter @therealylh. He blogs at http://globallegalforum.blogspot.com

Published in Daily Times, June 4^th 2018.