Saud Bin Ahsan |
Sexual harassment is a breach of a person’s basic right to dignity as enshrined in the Constitution of the Islamic Republic of Pakistan. The Constitution grants every citizen the right to undertake any occupation, trade or business, which includes the right to a safe workplace. Workplace sexual harassment, on the contrary, discourages women from pursuing gainful employment and unfavorably impacts their economic and social empowerment.
Women unhindered participation in the economic activity is beneficial both for equity and efficiency reasons. From the equity perspective, greater participation of women in labor force strengthens their relative place in the economy. In terms of efficiency, their participation enhances economic productivity. However, a critical factor that is acting as a barrier to the participation of the women in the workplace is the absence of secure environment where they can perform their work with respect and dignity.
The Protection against Harassment of Women at Workplace Act 2010 is a step in the right direction. It partially fulfills the legal obligations of the Government towards women empowerment and international labor standards
Will legislation help?
Pakistan’s first legislation specifically addressing the issue of workplace harassment i.e. the Protection against Harassment of Women at Workplace Act 2010 (Act IV of 2010), was enacted seven years ago. The legislation has been enacted with the objective of protecting the women from harassment at workplace and for effective redressal of their complaints of sexual harassment.
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The Act is meant to provide relief against acts of harassment to any man or woman who is a regular or contractual employee whether employed on the daily, weekly, monthly or hourly basis and includes an intern or an apprentice. A close examination of the implementation of Laws in Pakistan suggests that these rights are grossly violated. The political parties are quick at passing new laws. However, they are not serious when it comes to implementation.
What is sexual harassment
Primarily, comparison of the definition of harassment as provided in the anti-sexual harassment laws of Pakistan and India is given in the table below:
| PAKISTAN | INDIA |
| Unwelcome Sexual Advance | Physical contact and advances; |
| Requests for sexual favors | A demand or request for sexual favors |
| Verbal or written communication or
physical conduct of a sexual nature |
Making sexually colored remarks
Any other unwelcome physical, verbal or non-verbal conduct of sexual nature |
| Sexually demeaning attitudes | Showing pornography |
| Creating an intimidating, hostile or
offensive work environment |
Interference with her work or creating an intimidating or
offensive or hostile work environment for her |
| The attempt to punish the
complainant for refusal to comply to such a request or is made a condition for employment; |
Implied or explicit threat of detrimental treatment in her
employment Implied or explicit threat about her present or future employment status |
Comparative analysis shows that the definition provided in the Indian law is more specific and comprehensive.
Moreover, from the title of this statute, it appears that the law is intended to provide relief only to women who are the victim of sexual harassment. The definition of “Complainant” also brings within its fold the sexual harassment encountered by men. The law, however, does not encompass transvestite population.
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The law does not provide the institutional arrangement for creating awareness regarding the law among the target population. It also does not envisage monitoring mechanism to oversee the compliance of the provisions of the Act
The law does not cover situations where employees of two different organizations interact in the ordinary course of business and the interaction gives rise to an act of sexual harassment. The law also does not cover household workers or those working in agriculture or informal sector. The shops and establishments which are not registered are also outside the domain of this law.
We need to expand the coverage of the law
The definition of “Organization” is also restrictive. Within the District Government, it only covers educational institutions and medical facilities. In private sector, it does not cover agriculture, livestock and dairy farms and shops and establishments that are not registered.
Similarly, the households and un-organized sector are outside the ambit of this Act. The girls or women who are students in a school, college or university are also not covered under this law. The law is imprecise as to which act of harassment merit minor versus major penalty. The word ‘sexual’ is also not defined in the law.
In view of the widespread prevalence of sexual harassment, having an Ombudsman at the Provincial Level may be insufficient as well as inconvenient for the Complainants
The inquiry committee constituted under the Act comprises of employees of the organization. In case the accused is owner or member of the senior management, the members of the Committee may be influenced by the management and may not be able to decide the complaint objectively. The members of the inquiry Committee do not have any experience or training of conducting inquiries of quasi-judicial nature that involves the recording of evidence, examination and cross-examination and appreciation of available evidence.
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The law does not provide a framework or mechanism for capacity building of the inquiry committees so constituted. The tenure of the Committee is also not defined. Ideally, such committees should have majority membership comprising women. The method of incorporating outside members is also not provided. The Committee has not been invested with the powers to enforce appearances and production or discovery of documents where parties or witnesses do not comply with the orders of the Committee.
The statute prescribes a punishment of up to Rupees one hundred thousand if the employer fails to constitute Inquiry Committee or appoint Competent Authority or display the Code of conduct etc
The law also does not conceive of a situation where the employee or the Competent Authority may be complicit with the accused in his act of sexual harassment. The statute prescribes a punishment of up to Rupees one hundred thousand if the employer fails to constitute Inquiry Committee or appoint Competent Authority or display the Code of conduct etc. The law does not provide harsher punishments for the continuation of offense or recurrence of the violation on the part of the employer. Similarly, the Act does not envisage harsher punishments in case of the second offense of sexual harassment by the accused person.
Section 13 of the Act empowers the Federal Government to frame Rules under the Act. More than seven years after the promulgation of the Act, the Rules have not been framed which is reflective of the lack of seriousness and commitment of the Federal Government.
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The Act does not cover the women who were the employee of the organization at the time of harassment but was terminated before she could file a complaint.
Review of Institutional Arrangements
The law provides for following Institutional Arrangement:
- Inquiry Committee to inquire into the complaints of sexual harassment and submission of recommendations to the Competent Authority.
- Competent Authority appointed by the employer to decide on the recommendations of Inquiry Committee.
- Ombudsman for hearing the appeal against the decision of the Competent Authority. The complainant can approach the Ombudsman directly without recourse to inquiry committee.
- False and frivolous complaints may also be referred to the Ombudsman.
- The President and the Governor for deciding representations against the decisions of the Ombudsman.
It is observed that the organizations covered under the Act are spread over the length and breadth of the Provinces. In view of the widespread prevalence of sexual harassment, having an Ombudsman at the Provincial Level may be insufficient as well as inconvenient for the Complainants. For example, a school teacher serving in a co-education school in Rajanpur, South Punjab and having suffered sexual harassment may find it practically inconvenient to approach the Ombudsman in case the inquiry committee does not provide her the relief.
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The Committee has not been invested with the powers to enforce appearances and production or discovery of documents where parties or witnesses do not comply with the orders of the Committee
The Act is silent as to what action can be brought against the Competent Authority if he fails to approve or implement the recommendations of the Inquiry Committee within the stipulated time frame. Under the law, the Government has no role in the implementation of the Act. The law has left it to the employers, their internal inquiry committees or the Ombudsman to handle the complaints arising out of the act of sexual harassment.
The law does not provide the institutional arrangement for creating awareness regarding the law among the target population. It also does not envisage monitoring mechanism to oversee the compliance of the provisions of the Act.
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The Protection against Harassment of Women at Workplace Act 2010 is a step in the right direction. It partially fulfills the legal obligations of the Government towards women empowerment and international labor standards. However, the legislation suffers from limitations as well as implementation deficit.
Saud Bin Ahsen is Post-Grad student of Public Administration at Institute of Administrative Sciences (IAS), University of the Punjab, Lahore and associated with a Think Tank Institute. He is interested in Comparative Public Administration, Post-Colonial Literature, and South Asian Politics. He can be reached at saudzafar5@gmail.com