Despite the fact that Pakistan legislated on sexual harassment of women at workplaces in 2010, and subsequently Punjab adopted this enactment in 2012, Balochistan in 2016, KPK in 2017 and Sindh in 2018, the jurisprudence of sexual harassment is still developing in Pakistan.
It has been almost a decade that the law criminalizes sexual harassment or harassment in general at workplaces but the number of cases reported under these legislations is quite negligible. Yet, the frequency, intensity and probability of sexual harassment of women, at workplaces or otherwise, in Pakistani society is self-evident and undeniable.
In this regard, the latest landmark judgment pronounced by The Honourable Lahore High Court at its principal seat is a huge development in the law of sexual harassment. His Lordship Mr. Justice Jawad Hassan, in the case titled Asif Saleem vs. BOG University of Lahore, not only observed that such cases of harassment should be viewed with a pro-victim lens but also dilated upon the fact that technicalities and formalities be avoided to enforce the spirit of the Law.
The judgment is a prime example of the doctrine of harmonious construction of statutes and is based on harmonious reading of the Article 25 and Article 34 of the Constitution of Islamic Republic of Pakistan, 1973 as well as the Sexual Harassment of Women at Workplace Act 2012. The judgment discusses in detail how the law of sexual harassment budded, grew and developed with time in various important jurisdictions like United States of America and India etc.
The Court highlighted the significance of bringing women into mainstream in our national discourse and to do so, The Court said, it was important to brush out all such threats and fears that women face on basis of their gender
The case at hand was a typical sexual harassment case whereby a female student was harassed by her male teacher (the Petitioner in this case) at the University. She was sent illicit text messages extending unethical demands to her and reportedly she was not the only student being harassed at the hands of this teacher. Hence, upon the complaint of the student, the University conducted a detailed inquiry and found him guilty. Therefore, the Petitioner was dismissed from his job and was expelled from the PhD program that he was as student in at the same University. The matter was taken to Higher Education Commission which after deliberating upon the issue stood with the University and upheld the penalty awarded to him. This decision of the University was challenged before the Ombudsman Office whereby the penalty of dismissal from service was converted into removal from service. This Order of the Ombudsman was subsequently challenged before the Honourable Lahore High Court Lahore which passed a historic judgment in this case.
Submissions of the Petitioner were that the Orders of the University as well as the Ombudsman are illegal and that the Petitioner has been condemned unheard. The Petitioner also took a stance that the Protection against Harassment of Women at Workplace Act was not applicable in the instant situation as the Petitioner was being trapped on the basis of jealousy. Moreover, the Petitioner’s counsel argued that dismissing the Petitioner from his service as well as expelling him from PhD program at the same University tantamount to double jeopardy.
The Respondents, on the other hand, identified that a proper inquiry of the matter was conducted and all the relevant rules, regulations and policies including the HEC rules and regulations were kept in mind while adjudicating upon this matter. After thorough investigation, the Petitioner has been found guilty of sexual harassment and then he was awarded major penalty of dismissal from service. Moreover, as per HEC policy guidelines regarding sexual harassment, the Petitioner could continue his PhD at the same university.
The Honourable Lahore High Court while deliberating upon the case not only considered the Sexual Harassment at Workplaces Act but also gave due weightage to Article 25(3) of the Constitution of Pakistan, 1973 which encourages enactment of special provisions for protection of women and children to ensure equal access and opportunities for them. The Court also brought in the jurisprudence behind Article 34 of the Constitution of Pakistan, 1973 which provides for full participation of women in national life. While discussing these laws, the Court said that women are already a vulnerable and marginalized group of our society. The Court highlighted the significance of bringing women into mainstream in our national discourse and to do so, The Court said, it was important to brush out all such threats and fears that women face on basis of their gender. The Honourable Lahore High Court, while tracing back the roots of the law of sexual harassment, discussed that “Sexual harassment of working-women was first conceived as a special type of wrong entitled to legal remedy in the United States, thirty years ago by Catharine MacKinnon in an article, Sexual Harassment of Working Women (New Haven: Yale University Press, 1979)”
Exploring Indian jurisprudence, the Court delved into some of the leading Indian cases e.g Vishaka’s case (AIR 1997 SC 3011) and Manisha Sharma case (2014) on the law of sexual harassment.
Along with these cases, the Court emphasised upon The International Labour Organization Declaration of Philadelphia (1944) as well which safeguards the right of freedom, economic security and equal opportunity for all human beings.
After expounding plethora of judgments, legislations and international principles, His Lordship Mr. Justice Jawad Hassan dismissed the Petition and expatiated that institutions need to play an active role in making workplaces inclusive for women where they can work with equal freedom and dignity.
The writer is Lawyer, Human Rights Activist, Researcher