Daily Times

The Maternity and Paternity Leave Bill, 2018, presented by Senator Quratulain Marri, appears to have been passed by Senate, which will double the paid maternity period for women from the existing 90-day leave to 180 days in the federal capital. There is no argument that a 90-day maternity leave is insufficient, and taken without any context, the proposed law does deserve applause as it will allow mothers to focus on the wellbeing of newbornsand themselves, ensuring better health and recovery of the newborn as well as the mother. The proposed law will be more aligned with those of developed countries and should create a more positive image of Pakistan in the international communitywhile setting a good precedent for the provinces.

The other (de)merits of the proposed law aside, and while the above-mentioned onesdo seem promising, when looked closely and within the context of the social practices in Pakistan, the proposed law on maternity leave is nothing short of a delusional exercisethat will unintentionally but ultimatelycause a climb in the already prevailing gender discrimination against women.

Article 25 of the Constitution of Pakistan stipulates that there shall not be any discrimination on the basis of sex, although the state may make any provision for protection of women (and children). While some may consider it to be a stretch, the language of Article 25 of the Constitution of Pakistan itself renders women as a class requiring protection, as implicit within this language is the acceptance that discrimination against women in Pakistan does exist and women do require protection against such discrimination. However, there are no laws in Pakistan, other than the provisions of the Constitution of Pakistan, that outlaw gender discrimination in employment practices.

If the law is passed, what stops an employerfrom hiring a young woman or dismissing a pregnant woman to avoid granting her a paid maternity leave in the future?

It is customary to see employment opportunities that specify the preferred gender for the job. Any company can refuse to hire women or refuse them an equivalent wage for equivalent work to that undertaken by their male counterparts.The remedy in such cases will be restricted to a constitutional petition, which as the state of affairs stands is quite an unusual practice in Pakistan due in part to the lengthy and emotionally and physically tolling judicial process.

If the law is passed, what stops an employer, other than the prospect of a constitutional petition, from hiring a young woman or dismissing a pregnant woman to avoid granting her a paid maternity leave in the future? To add to that, the law allows women to voluntarily give up their right to maternity leave. In an environment where the odds are stacked against women in the form of discrimination as well as religious and cultural norms, and lack of any legal protection, the power dynamic is such that any woman will be willing to succumb such a right to paid maternity leave to keep her job. The question of whether the proposed law will override the current 90-day maternity leave available to women therefore allowing a surrender of the current 90-day minimum maternity leave will also need consideration once the text of the proposed law is made available, as in the event the proposed law has such an effect, there can be no argument that the proposed law is a disservice to women.

Even if the proposed law is amended or otherwise supplemented with laws penalising and granting protection against gender discrimination, any benefit of the proposed law in relation to maternity leave will primarily be restricted to women of a certain privileged background,either working in organisations adamant on following such regulations or bearing powerful positions. Unless the lack of enforcement of labour laws can be addressed adequately, most young women will continue to either write away their rights to maternity leave or suffer gender discrimination due to the presence of a lengthy paid maternity leave.

In view of the above, while various women in the country are joyous over the prospective passing of the proposed law and demand that the provinces follow this lead because they consider that such a law will allow them more time to spend with their newborn and focus on themselves and their families, the proposed law is, in fact,chimeric at best.Itwill only create more hurdles for young womenseeking employment immediately from the time it passes as law. If anything, women should, in fact, be protesting against the passing of such a law unless gender discrimination within the employment sector is not only outlawed but any violation is, and is seen to be, effectively penalised.

With all due respect to the legislature, and while commending the efforts of Senator Quratulain Marri in not only putting together the law but driving it successfully through the Senate, which must have been a very difficult task, a maternity leave to the tone of the proposed law today is nothing short of being fanciful.Itwill only increase the woes of women in the short as well as the long run as the state is unable to prevent the large-scale gender discrimination against women in employment practices.

If the legislaturewishesto address the issue of maternity leaves effectively, then appropriatesupport from the legal fraternity needs to be extended to the legislature in implementing reforms that unroot gender discrimination and pave way for not only the much-needed increased maternity leaves for women, but also better employment opportunities for women in general.At the outset it may be useful to undertake a three-tiered approach.

In the first tier,an expansive exercise may be undertaken from an academic and practical perspective that focuses on the overall wellbeing and collective responsibility of the nation in relation to maternity leaves. In the second tier, relevant quarters shall be educated on forms of gender discrimination and recognition of such practices, and ultimately, in the third tier,gender discrimination shall be rendered culpable with heavy penalties as is the case in the countries that have at least amoderate duration of maternity leave in place.

It is only after this exercise should a law be passed mandating a moderate maternity leave taking into account views from all relevant quarters to ensure that the proposed mechanism will operate efficiently within the context of Pakistan.

The unrooting of gender discrimination will take several years of dedicated efforts and regularisation, which may mean that women may not have a legal right to paid maternity leaves beyond the 90-day period currently available in law. However, just because the proposed law looks good on paper, given the context of employment practices in Pakistan, on balance, a promise of a 180-day maternity leave that is unlikely to materialise for most women, and will give rise to further discrimination by employers is not a good bargain. The proposed law, to the extent of maternity leaves, should therefore be rejected without further ado.

The writer is a Freelance writer