Daily Times

Sexual harassment is a breach of a person’s basic right to dignity as enshrined in the Constitution of the Islamic Republic of Pakistan. The Constitution grants every citizen the right to undertake any occupation, trade or business, which includes the right to a safe workplace. Workplace sexual harassment, on the contrary, discourages an individual from pursuing gainful employment and unfavorably impacts their economic and social empowerment.

Women unhindered participation in the economic activity is beneficial both for equity and efficiency reasons. From the equity perspective, greater participation of women in labor force strengthens their relative place in the economy. In terms of efficiency, their participation enhances economic productivity. However, a critical factor that is acting as a barrier to the participation of the women in the workplace is the absence of secure environment where they can perform their work with respect and dignity.

March 2019, will mark the ninth anniversary of Pakistan’s first legislation specifically addressing the issue of workplace harassment i.e. the Protection against Harassment of Women at Workplace Act 2010, as it was enacted nine years ago on March 9, 2010. The legislation has been enacted with the objective of protecting the women from harassment at workplace and for effective redressal of their complaints of sexual harassment. The Act is meant to provide relief against acts of harassment to any man or woman who is a regular or contractual employee whether employed on the daily, weekly, monthly or hourly basis and includes an intern or an apprentice. A close examination of the implementation of Laws in Pakistan suggests that these rights are grossly violated. The political parties are quick at passing new laws. However, they are not serious when it comes to implementation.

As per our law, harassment is defined as, “any unwelcome sexual advance, request for sexual favors 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.” Whereas, Indian Anti-Harassment Act 2013 sexual harassment includes “such unwelcome sexually determined behavior (whether directly or by implication) as: a. Physical contact and advances; b. A demand or request for sexual favors; c. Sexually colored remarks; d. Showing pornography; e. Any other unwelcome physical, verbal or nonverbal conduct of sexual nature”. Comparative analysis shows that the definition provided in the Indian law is more specific and comprehensive.

The definition of laws where only man and woman are mentioned, instead of ‘persons,’ should be extended to address and include transgender persons in it. In this regard, the law must embrace the recently adopted Transpersons (Protection of Rights) Act, and allow the transgender person to also file complaints

By analyzing the Act, it appears that the law does not cover situations where employees of two different organizations interact in the ordinary course of business and the interaction gives rise to an act of sexual harassment. The law also does not cover household workers or those working in agriculture or informal sector. The shops and establishments which are not registered are also outside the domain of this law.

Moreover, the definition of “Organization” is also restrictive. Within the District Government, it only covers educational institutions and medical facilities. In private sector, it does not cover agriculture, livestock and dairy farms and shops and establishments that are not registered. Thus, unorganized sectors are outside the ambit of this Act. The girls or women who are students in a school, college or university are also not covered under this law. The law is imprecise as to which act of harassment merit minor versus major penalty. The word ‘sexual’ is also not defined in the law.

Furthermore, the inquiry committee constituted under the Act comprises of employees of the organization. In case the accused is owner or member of the senior management, the members of the Committee may be influenced by the management and may not be able to decide the complaint objectively. The members of the inquiry Committee do not have any experience or training of conducting inquiries of quasi-judicial nature that involves the recording of evidence, examination and cross-examination and appreciation of available evidence.

The law does not provide a framework or mechanism for capacity building of the inquiry committees so constituted. The tenure of the Committee is also not defined. The method of incorporating outside members is also not provided. The Committee has not been invested with the powers to enforce appearances and production or discovery of documents where parties or witnesses do not comply with the orders of the Committee.

The law also does not conceive of a situation where the employee or the Competent Authority may be complicit with the accused in his act of sexual harassment. The statute prescribes a punishment of up to Rupees one lac if the employer fails to constitute Inquiry Committee or appoint Competent Authority or display the Code of conduct etc. The law does not provide harsher punishments for the continuation of offense or recurrence of the violation on the part of the employer or any accused person. The Act does not cover the women who were the employee of the organization at the time of harassment but was terminated before she could file a complaint.

The law provides for following Institutional Arrangements that are, Inquiry Committee to inquire into the complaints of sexual harassment and submission of recommendations to the Competent Authority; Competent Authority appointed by the employer to decide on the recommendations of Inquiry Committee; Ombudsman for hearing the appeal against the decision of the Competent Authority. The complainant can approach the Ombudsman directly without recourse to inquiry committee; False and frivolous complaints may also be referred to the Ombudsman; The President and the Governor for deciding representations against the decisions of the Ombudsman.

It is observed that the organizations covered under the Act are spread over the length and breadth of the Provinces. In view of the widespread prevalence of sexual harassment, having an Ombudsman at the Provincial Level may be insufficient as well as inconvenient for the Complainants. For example, a school teacher serving in a co-education school in Rajanpur, South Punjab and having suffered sexual harassment may find it practically inconvenient to approach the Ombudsman in case the inquiry committee does not provide her the relief.

The Act is also silent as to what action can be brought against the Competent Authority if he fails to approve or implement the recommendations of the Inquiry Committee within the stipulated time frame. Under the law, the Government has no role in the implementation of the Act. The law has left it to the employers, their internal inquiry committees or the Ombudsman to handle the complaints arising out of the act of sexual harassment. Moreover, another pertinent issue which appears quite often is about the legal jurisdiction between provincial and federal ombudspersons. In connection with this, in September 2018, Lahore High Court has ruled that the jurisdiction of the Federal Ombudsperson regarding harassment cases is not limited to the federal capital territory as it is also competent to hear complaints related to trans-provincial organizations, institutions, employers and workplaces.

By taking a bird-eye view, in Punjab, 134 cases reached the ombudsperson during the last five years and office received 98 complaints from 2014 onwards. Data by Punjab Commission on Status of Women (PCSW) and the ombudsperson’s office states that 38 percent of these cases were withdrawn, 43 percent accused received punishment and the suspects in 18 percent cases were exonerated.

Thus, the Protection against Harassment of Women at Workplace Act 2010 is a step in the right direction. It partially fulfills the legal obligations of the Government towards women empowerment and international labor standards. However, the legislation suffers from severe limitations as well as implementation deficit.

In light of the above observations, the title of the act should be amended to ‘the protection against sexual harassment’ instead of limiting instances to the ‘workplace’ only as no woman is safe, no matter which sector she is working in – even if she is working from home.

The definition of laws where only man and woman are mentioned, instead of ‘persons,’ should be extended to address and include transgender persons in it. In this regard, the law must embrace the recently adopted Transpersons (Protection of Rights) Act, and allow the transgender person to also file complaints. Furthermore, there should be no deadline for the filing of a complaint because sometimes a victim faced emotional trauma and might take a long time before opening up.

The author has done MPA from Institute of Administrative Sciences (IAS) Lahore

Published in Daily Times, February 13^th 2019.