Category: Work Place Harassment

ISLAMABAD: The Attorney General office is seriously considering moving a petition to seek review of the recent Supreme Court judgment relating to the Protection Against Harassment of Women at the Workplace Act, 2010 (PAHWWA).

There is a general realization among the senior law officers that the Supreme Court through its verdict has given a retrogressive meaning of the 2010 law when being the top court, after which there is no legal remedy available, the apex court should have taken a progressive interpretation of the act, said Attorney General for Pakistan (AGP) Khalid Jawed Khan while talking to Dawn.

The AGP is particularly disturbed over the observation in which the judgment stated that: “Since the PAHWWA itself limits the protection it offers to the harassment having sexual orientation, the Supreme Court is shackled to interpret in line with its express charging clause (h) of Section 2 of the act. Any other interpretation advanced by this court to enlarge the scope of the charging section will violate the rights guaranteed under Article 12 of the Constitution.

“Section 2(h) of the act 2010, which was adopted during the PPP government defines the meaning of harassment 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.

No assistance was sought by issuing notices to the AGP and the four provincial advocates general

“The judgment had explained that any misdemeanour, behavior or conduct unbecoming of an employee or employer at the workplace towards a fellow employee or employer in any organization is not actionable under the existing act, unless such behavior or conduct is shown to be inherently demonstrable of its sexual nature. Any other demeaning attitude, behavior or conduct which may amount to harassment in the generic sense of the word as it is ordinarily understood howsoever grave and devastating it may be on the victim, is not made actionable within the contemplation of actionable definition of harassment under section 2(h) of the act.”

But AGP believed that the Supreme Court – the top court of the country – was completely independent and free to interpret any law in a manner that should instill a sense of protection among the large number of working women who faced different kind of pressures and demeaning attitude during their everyday life.

The Supreme Court should have interpreted the law that should have advanced the cause of welfare towards the women who contribute 51 percent of the total population of the country, the AGP stated though conceding that harassment was also suffered even by men at the workplace but the womenfolk in a society like ours were at the most disadvantageous place.

Does any superior court judge was sensitive towards this aspect while deciding the case at hand, the AGP wondered, adding that the answer was a plain No.

He was also bitter over the fact that no assistance was sought by issuing notices to the AGP and the four provincial advocates general during the entire hearing of the case both at the levels of the high court as well as the Supreme Court.

When amicus curiae are appointed usually by the courts in every important cases both by the apex or the high courts, the Supreme Court should have appointed some senior lawyer to get proper assistance in such a sensitive case, the decision of which has been received with quite discomfort and when eyebrows have been raised over the judgment

The judgment is loud and clear in pointing towards the fact that the petitioner before the Supreme Court – a woman in this case – is proceeded against departmentally and charge-sheeted, show-caused and consequently terminated from the service after she lodged the complaint before the Federal Ombudsman for the Protection against Harassment of Women at Workplace alleging harassment at the workplace, the AGP said. Is she being punished for initiating a complaint before the ombudsman, he wondered, adding that this aspect should have been a deciding factor in the judgment.

Whenever the petition is filed, there is a possibility that an application may also be moved by the AG Office before the Supreme Court with a request to the Chief Justice of Pakistan that a larger bench be constituted to hear the review petition and revisit the judgment in the sexual harassment case, he said.

Source: Dawn

ISLAMABAD: The Protection against Harassment of Women at the Workplace Act 2010 (PAHWWA) surprisingly in its present form is just another piece of cosmetic legislation that is blinkered in its application, the Supreme Court has regretted.

“When the PAHWWA is examined as a whole, it does not live up to expectation as titled and preamble of the act suggests,” Justice Mushir Alam wrote in a judgment on a petition moved by a former employee of the state-run Pakistan Television (PTV).

A three-judge SC bench that heard the case of Nadia Naz regarding harassment at workplace, however, observed that the petitioner failed to establish the case of sexual harassment within the contemplation of the Act.

Nadia Naz was appointed as resource person (camera department) at PTV on Sept 4, 2007. She was proceeded against departmentally, charge-sheeted, show caused and consequently her service was terminated on May 13, 2017 during the pendency of her complaint before the Federal Ombudsman for Protection against Harassment of Women at Workplace.

Justice Alam observed that anyone could be subject to sexual harassment though in a culture and society like Pakistan women were the distressing majority of victims. Harassment in any society or organization was a testament to regressive behavior that created an intimidating, hostile, degrading, humiliating and offensive environment that had a devastating effect on any society or organization by adversely affecting its overall performance and development, the SC judge noted.

According to the judgment, the harassment, in all forms and manifestations, may it be based on race, gender, religion, disability, sexual orientation, age related, an arrangement of quid pro quo, and/or sexual harassment affects and violates the dignity of a person, as guaranteed under the Constitution.

Elaborating on the scope of PAHWWA, the judgment explained that rather than addressing issues of harassment in all its manifestation in a holistic manner, the Act was a myopic piece of legislation that focused only on a minute faction of harassment.

The Act confined or limited its application to sexualized forms, including orientation of unwanted or unwelcome behavior, or conduct displayed by an accused person towards a victim in any organization, Justice Alam observed, highlighting that insulting modesty or causing sexual harassment at workplace or public place had also been criminalized under Section 509 of the Pakistan Penal Code, 1860 that was punishable for a term that may extend to three years, or with fine up to Rs500, 000 or both.

The judgment explained that the definition of harassment under the Act suggested that any misdemeanor, behavior, or conduct unbecoming of an employee, or employer at the workplace towards a fellow employee or employer in any organization — may it be generically classifiable harassment — was not actionable unless such behavior or conduct was shown to be inherently demonstrable of its ‘sexual’ nature.

Any other demeaning attitude, behavior, or conduct which might amount to harassment in the generic sense of the word, as it was ordinarily understood, howsoever grave and devastating it might be on the victim, was not made actionable within the contemplation of actionable definition of harassment under Section 2 (h) of the Act.

Giving such restricted meaning to “actionable” harassment, by the legislature in its wisdom, impinges the very object and purpose for which the Act was promulgated, the judgement regretted, adding that the impact of harassment, as generically understood, and how restrictive its application had been made was very well articulated and thrashed out by the Islamabad High Court in the Shahida Masood case.

The Act was specifically legislated to protect not only working women but also men against “harassment having sexual nature” at workplace and, therefore, any conduct amounting to harassment of any other kind and nature, despite howsoever distasteful and injurious, was not made cognizable before the federal ombudsman, the judgment deplored.

The meaning of the term harassment as given in Section 2(h) of the Act could not be stretched to other conduct being not of sexual orientation, according to the verdict. Apparently, it noted, the reason for limiting the actionable offence of harassment could be its serious impact on all those involved, including both the potential ‘harasser’ and the potential victims, and the responsibility for avoiding instances of harassment on workplace regulators.

Source: Dawn

 Other Media Report: Express Tribune