The Supreme Court has said it will allow an accused of harassment of woman at workplace to have leeway and escape punishment on the basis of technicalities in the law. Justice Azmat Saeed Sheikh, heading a three-judge bench, said: “We don’t want to have confusion in the law, which benefit the accused.”
The bench on Monday heard the appeals of former Ombudsperson Justice Yasmeen Abbasi against the then senior puisne judge of Lahore High Court Justice Mansoor Ali Shah and of GM Pakistan State Oil (PSO) against IHC regarding jurisdiction of Federal Ombudsperson for the protection against harassment of women at Workplace (FOPHWW).
Additional Attorney General (AAG) Sajid Ilyas Bhatti and Advocate Generals of all the provinces filed reports. The AAG informed that provinces’ law on protection against harassment of women at the workplace is almost the same of the federal Act 2010. It was further informed that except Balochistan the other provinces have also appointed the ombudspersons.
The AAG submitted that there is issue of jurisdiction of federal and the provinces ombudsperson. He contended hat under section 509 of Pakistan Penal Code, insulting the modesty of women or sexually harassing them, is a crime. The perpetrator of this crime may be punished with imprisonment, which may extend to 3 years or fine up to Rs 500,000 or with both. However, this crime is still bailable and compoundable (parties can settle the case between themselves even when matter is in the court, after permission of the court).
Justice Sajjad Ali Shah, another member of the bench, questioned what is the burden of proof in the cases under Protection against Harassment of Women at the Workplace Act 2010? Whether it is the same as in the criminal cases? He said in rape cases the affected women don’t come in the witness box for cross-examination, because don’t like to face embarrassment again in the court.
The bench directed the AAG and the advocate generals of all provinces to examine the judgments of the superior courts and the treaties, if any, signed by the federal government regarding harassment of women at workplace.
Federal Ombudsperson Protection against Harassment of Women at the Workplace point of view is that the wisdom enumerated in the NIRC case is applicable to this case. “Where an organization is trans-provincial as the bank with branches all over Pakistan, the federal ombudsperson is competent to look into the complaint of harassment at workplace.”
It submitted that the jurisdiction of the federal ombudsperson should not be limited to the federal capital areas, rather the federal ombudsperson should have jurisdiction in relation to all employers, organizations, institutions and workplaces, which has a federal character or are established under a federal law or are directly consequent to an international obligations under an international treaty or convention.
It said in case the jurisdiction of the federal ombudsperson is limited only to the federal area, then the organization or any institutions of federal nature or trans-provincial, the cases of harassment cannot be addressed properly by the relevant provincial ombudsman. It requested that the jurisdiction has to be interpreted in accordance with the natural principals of law. The overlap between the provincial ombudsperson and federal ombudsperson has created a situation which is not helpful for any ombudsperson to deal with the cases, which involves the federal nature of organizations or institutions. The case is adjourned till March 14.