Before 2010, Pakistan had no laws on sexual harassment. In 2010, Section 509 of the Pakistan Penal Code, which previously only referred to harassment as “insulting the modesty of a woman”, was amended to include a more detailed definition of harassment. The amended law prescribes an imprisonment of up to 3 years or a fine of up to Rs 500,000 or both, for insulting the modesty of a woman by uttering a word, gesture, intruding upon the privacy of a woman, or asking intending to ask for sexual favors, or making the same a condition of employment for the woman, thereby creating an offensive and hostile workplace environment. Section 509 further elaborates that this type of harassment could occur at parks, markets, in public transport, public or private gatherings, or workplaces such as offices or factories. The law does not explicitly mention educational institutions, but they will fall under “the place where an organization and/or employer operates”.
The Protection Against Harassment of Women at the Workplace Act was also enacted in 2010. The Act deals with a formal situation with the harassment faced by working women in Pakistan.
It too defines workplace as “the place where an organization and/or employer operates”. The term organization includes, according to the law, hospitals, educational institutes, companies and government institutes. Hospitals and educational institutes have a majority of female employees which means that the inclusion of both these organizations in the definition of organization provides them with a much needed legal cover.
Interestingly the term complainant includes both man and woman.
The Act calls for the formation of three member inquiry committees in organizations with at least one member being a woman and one member being a senior employee. Complainants can approach the inquiry committees in confidence for the resolution of any issue regarding harassment. The committee has the powers to call for evidence and witnesses, and to impose penalties, including major penalties such as removal from service.
Any person unhappy with the decision of the inquiry committee has the right to approach the Ombudsperson, who shall decide the matter within 60 days of the date of the complaint. A person unhappy with the decision of the Ombudsperson may make a representation before the President of Pakistan.
Perhaps the most important part of the Act is the Code of Conduct provided in the Act. The adoption of the Code of Conduct is mandatory by organizations and also includes the display of the Code of Conduct at the place of business of the organization. The Code empowers the complainant. It lays down minimum standards, allowing organizations to improve on it. The adoption of the Code does not only provide an organization with a mechanism through which it can systematically address complaints of sexual harassment, it also helps an organization change the attitudes of its employees, by raising awareness about the issue and consequences of its occurrence in the workplace.
To study the actual effects of the law, I visited Mrs Maliha Husain at Mehergarh. Mehergarh has been the secretarial hub for the Alliance against Sexual Harassment (AASHA), a movement that started the public private partnership which culminated in the inception of the Protection Against Harassment of Women at the Workplace Act. AASHA did not stop here. They partnered with employers for the successful implementation of the Code of Conduct in various organizations.
Mrs Maliha Husain is very happy with the manner in which organizations have adopted the Code and their compliance with the Act. She says more than 3,500 complaints of sexual harassment have been resolved successfully by inquiry committees of organizations alone. The State Bank of Pakistan played a very important role in the implementation of the Code, she says, when they made compliance with the Act a part of their audit compliance.
I also visited the office of the Ombudsperson to see how things were progressing with the complainants who were either not satisfied with the decisions of the inquiry committees in their organizations, or whose organizations did not have any inquiry committees. There are around 70 judgments of the Ombudsperson available on their website. But allthough the Ombudsperson disposes of the cases within her mandated 60 days, and although she enjoys the powers of the High Court regarding enforcement of her judgments, justice is at times delayed. Sometimes the party against whom the matter is decided by the Ombudsperson files a representation before the President of Pakistan and once that too gets turned down, a writ petition is filed in the High Court under Article 199 of the Constitution. Then starts the tedious matter of delayed hearings which means that the relief which the complainant received from Ombudsperson does not actually materialize and a sensitive matter such as sexual harassment which needs to be resolved quickly and in confidence is dragged into courts. Although the right to approach the High Court is a constitutional right, it needs to be seen whether the matter fall under the principle of Res Judicata, ie reopening of a decided matter.
The offices of the Ombudsperson and the laws empowering them have been enacted to provide people with speedy and cheap justice. That goal cannot be met if every decision made by them is challenged in the High Court. This is not to say that the decision of an Ombudsperson is not subject to Article 199, but sexual harassment is an issue that requires speedy and confidential resolution.
The situation has improved according to Mrs Maliha Husain, and continues to improve since the inception of the Act and the Amendment to Section 509 of the PPC. My own overall feeling is that although things may have improved for women as far as the workplace is concerned, there is much to be done in the domain of awareness and implementation. Section 509 of the penal code can be used effectively in dealing with eve teasing in markets and parks and outside girl’s educational institutions. But all in all, it was heartening to see that the enactment of laws on sexual harassment are actually helping women.
The writer is an advocate of High Court
Email: yousaf@yaa.com.pk
The Protection Against Harassment of Women at the Workplace Act was also enacted in 2010. The Act deals with a formal situation with the harassment faced by working women in Pakistan.
It too defines workplace as “the place where an organization and/or employer operates”. The term organization includes, according to the law, hospitals, educational institutes, companies and government institutes. Hospitals and educational institutes have a majority of female employees which means that the inclusion of both these organizations in the definition of organization provides them with a much needed legal cover.
Interestingly the term complainant includes both man and woman.
The Act calls for the formation of three member inquiry committees in organizations with at least one member being a woman and one member being a senior employee. Complainants can approach the inquiry committees in confidence for the resolution of any issue regarding harassment. The committee has the powers to call for evidence and witnesses, and to impose penalties, including major penalties such as removal from service.
Any person unhappy with the decision of the inquiry committee has the right to approach the Ombudsperson, who shall decide the matter within 60 days of the date of the complaint. A person unhappy with the decision of the Ombudsperson may make a representation before the President of Pakistan.
Sexual harassment is a sensitive matter that needs to be resolved quickly and in confidence
Perhaps the most important part of the Act is the Code of Conduct provided in the Act. The adoption of the Code of Conduct is mandatory by organizations and also includes the display of the Code of Conduct at the place of business of the organization. The Code empowers the complainant. It lays down minimum standards, allowing organizations to improve on it. The adoption of the Code does not only provide an organization with a mechanism through which it can systematically address complaints of sexual harassment, it also helps an organization change the attitudes of its employees, by raising awareness about the issue and consequences of its occurrence in the workplace.
To study the actual effects of the law, I visited Mrs Maliha Husain at Mehergarh. Mehergarh has been the secretarial hub for the Alliance against Sexual Harassment (AASHA), a movement that started the public private partnership which culminated in the inception of the Protection Against Harassment of Women at the Workplace Act. AASHA did not stop here. They partnered with employers for the successful implementation of the Code of Conduct in various organizations.
Mrs Maliha Husain is very happy with the manner in which organizations have adopted the Code and their compliance with the Act. She says more than 3,500 complaints of sexual harassment have been resolved successfully by inquiry committees of organizations alone. The State Bank of Pakistan played a very important role in the implementation of the Code, she says, when they made compliance with the Act a part of their audit compliance.
I also visited the office of the Ombudsperson to see how things were progressing with the complainants who were either not satisfied with the decisions of the inquiry committees in their organizations, or whose organizations did not have any inquiry committees. There are around 70 judgments of the Ombudsperson available on their website. But allthough the Ombudsperson disposes of the cases within her mandated 60 days, and although she enjoys the powers of the High Court regarding enforcement of her judgments, justice is at times delayed. Sometimes the party against whom the matter is decided by the Ombudsperson files a representation before the President of Pakistan and once that too gets turned down, a writ petition is filed in the High Court under Article 199 of the Constitution. Then starts the tedious matter of delayed hearings which means that the relief which the complainant received from Ombudsperson does not actually materialize and a sensitive matter such as sexual harassment which needs to be resolved quickly and in confidence is dragged into courts. Although the right to approach the High Court is a constitutional right, it needs to be seen whether the matter fall under the principle of Res Judicata, ie reopening of a decided matter.
The offices of the Ombudsperson and the laws empowering them have been enacted to provide people with speedy and cheap justice. That goal cannot be met if every decision made by them is challenged in the High Court. This is not to say that the decision of an Ombudsperson is not subject to Article 199, but sexual harassment is an issue that requires speedy and confidential resolution.
The situation has improved according to Mrs Maliha Husain, and continues to improve since the inception of the Act and the Amendment to Section 509 of the PPC. My own overall feeling is that although things may have improved for women as far as the workplace is concerned, there is much to be done in the domain of awareness and implementation. Section 509 of the penal code can be used effectively in dealing with eve teasing in markets and parks and outside girl’s educational institutions. But all in all, it was heartening to see that the enactment of laws on sexual harassment are actually helping women.
The writer is an advocate of High Court
Email: yousaf@yaa.com.pk