In 2019, Pakistan was rankedthird-laston the Global Gender Gap Index. This was followed by the World Bank’s report that highlighted the deeply concerning disparity between male and female participation at the workplace. Statistics regarding women’s economic and labour force participation are dismal and call for strict action as women’s economic empowerment is crucial for Pakistan’s economy as well as its human rights record.
The right to economic participation is an integral component of the right to equality and non-discrimination as enshrined in the Constitution of Pakistan and international human rights instruments that Pakistan has ratified. For women in Pakistan this right is impended by a number of factors, ranging from patriarchal norms, socio-cultural practices and lack of facilitation of women at workplaces.
Perhaps one of the most significant factors that hinders women’s participation in the workforce is the prevalence of sexual harassment. Due to the threat of harassment, most women are either not allowed to work or they themselves choose not to work. For many others, incidents of sexual harassment become reasons for leaving work altogether.
Statistics indicate that fifty percent of women working in the public sector have faced harassment in some form. This coupled with the absence of any law onsexual harassment at the workplace was a serious cause of concern for the rights of women and their role in Pakistan’s economy. In 2010, parliament enacted the Protection Against Harassment of Women at the Workplace Act, which provided for the definition of sexual harassment andestablished avenues for redressal. While initially intended for women only, the law was later amended to cater to men as well.
The law defines sexual harassment broadly and includes a number of acts including unwanted physical contact, assault and battery, lewd jokes or sexual innuendo, and unwelcome comments about a person’s clothing or body. The definition also includes incidents of exposing or sharing sexual material, and using blackmail, threats or offering benefits for sexual favours. These can be done either in person or through messages, calls, or any other medium. Importantly, the law states that it is the relationship that must be connected to the workplace and not the physical location. Therefore, a co-worker who harasses a victim outside of the workplace is also liable under the law.
The legal remedies available to a victim of harassment include filing a written complaint before the inquiry committee of the organisation or before the Ombudsperson for Protection against Harassment. A criminal complaint under Section 509 of the PPC may also be filed.The lawrequires every public and private organisation to constitute an inquiry committee to look into complaints relating to sexual harassment.
The inquiry committee must consist of three members, one of whom has tobe a woman. While there is a legal requirement upon every organisation to establish an inquiry committee, there are serious problems relating to the implementation of this law as most organisations have yet to constitute these committees. The Sexual Harassment Watch reports that only 833 organisations within Pakistan are compliant with the law with duly constituted sexual harassment committees.
The second avenue for redressal is the office of the Ombudsperson for Protection against Harassment. Asper the law, every province is to have an ombudsperson dedicated to ensuring protection from harassment. However, Balochistan and KP both appointed their first ombudsperson in 2019, nine years after the law was enacted. In relation to Sindh, the Federal Ombudsperson for Protection against Harassment informed the Supreme Court of Pakistan that there have yet to be any reported incidents of harassment. This is a serious cause of worry as highlighted by the court as well.
Most cases of harassment never reach the ombudsperson due to socio-cultural barriers to access and practical issues of accessibility for victims of harassment. Additionally, a survey by Dawnrevealed that sexual harassment, abuse and discrimination in Pakistan’s workplaces and educational institutions though pervasive is massively unreported and often ignored by senior managers and thus never given the momentum to be taken to the ombudsperson.
The Sexual Harassment Watch reports that only 833 organisations within Pakistan are compliant with the law with duly constituted sexual harassment committees
A procedural issue with a complaint or appeal to the ombudsperson is the lack of an appeal mechanism. While the Lahore High Court in Saleem Javed v Federal Ombudsperson justified this on the basis of expediency and speedy justice, this may be problematic for parties to the case who may be aggrieved by the decision of the ombudsperson. Their only other recourse is a representation to the governor, whose decision is to be final. A third option available to victims of sexual harassment at the workplace is to file a criminal complaint to the local police under Section 509 of the Pakistan Penal Code. The police would then commence investigation, followed by the general procedure of criminal courts. However, practical difficulties especially in relation to procedural delays, evidentiary requirements and prosecutorial flaws are endemic in the criminal justice system, which makecriminal complaints rare.
Moreover, despite the availability of legal options to victims of harassment, there are certain ambiguities within the law that still need to be addressed.The most pertinent in this regard is the definition of a complainant and the contours of an ’employment relationship’. The ombudsperson in 2013 decided that the Act may also extend to students despite the absence of an employment relationship. However, more recently in the high-profile case of Meesha Shafi against Ali Zafar, Shafi’s complaint was dismissed on the basis that there was no employment relationship. This discrepancy can be particularly problematic when dealing with situations where the victim’s employment is terminated before the victim files a complaint.
Another concern regarding the Act of 2010 is the lack of training and capacity building programmes for members of the inquiry committee. This is essential when ensuring that confidentiality of both parties is preserved and adequate justice is dispensed especially in relation to the penalties imposed, as the law does not lay down an objective scale for imposition of penalties. Additionally, the Act does not specifically provide for any option if the management of the organisation fails to implement its own decision or the decision of the ombudsperson, except a minimal fine of up to PKR 100,000 upon a complaint filed before the ombudsperson.
While the Protection against Harassment of Women at the Workplace Act 2010 and the inclusion of workplace harassment in the Penal Code are important strides for Pakistan in the protection and promotion of the rights of women, there is much that is still required especially in relation to the grassroot implementation of these laws. It is important for top-down legislation to be coupled with bottom-up initiatives that encourage the participation of women at the workplace by providing awareness on issues of harassment and the available legal remedies.
With only 26percent of the female population engaged in gainful employment, there is a strong need for the state of Pakistan to ensure that more women are made a part of Pakistan’s formal economy through the robust implementation of laws relating to women’s protection and promotion.
The writers are lawyers working at the Research Society of International Law, Pakistan