Workplace harassment: special SC bench to hear review plea

Petitioner, AGP filed petition against dismissal of case

ISLAMABAD:

Chief Justice of Pakistan Umar Ata Bandial has formed a special bench to hear a review petition challenging the Supreme Court’s judgment wherein it was held that sexual intention must be proved in cases proceeded under the Protection against Harassment of Women at Workplace Act, 2010 (PAHWWA).

Justice (retd) Mushir Alam, while presiding over a three-judge bench, had dismissed a case filed by a female employee of PTV against her male colleagues.

“The aggrieved person under the provisions of the Act, 2010 has the responsibility to prove that the perpetrator truly had an accompanying sexual intention or overture with his act, demeanour, behaviour, and/or conduct,” read a 12-page judgment authored by Justice (retd) Alam on July 5, 2021.

Later, the petitioner as well as the attorney general for Pakistan’s (AGP) Office had filed a review petition against the judgment.

A three-judge special bench, led by Justice Yahya Afridi and comprising Justice Muhammad Ali Mazhar and Justice Ayesha Malik, will take up the review petition on Tuesday.

The review petition stated that the Islamabad High Court as well as the SC, while considering and interpreting the provisions of the Protection Against Harassment of Women at the Workplace Act, 2010,  had not issued a notice to the AGP under Order XXVIIA of the Code of Civil Procedure, 1908.

“Where the question of interpretation of the provisions of the Constitution and/or the law is involved, issuance of notice under Order XXVIIA, Code of Civil Procedure, 1908, to the Attorney General for Pakistan has been held by this Hon’ble Court to be mandatory,” it added.

The petition referred to judgments in the Federation of Pakistan vs Aftab Ahmad Khan Sherpao, Federal Public Service Commission vs Syed Muhammad Afaq, Pakistan Automobile Corporation Ltd vs Mansoor-ul-Haque, and Superintendent Central Jail of Adiala Jail vs Hammad Abbasi.

It stated that while interpreting the provisions of the Act in general and the meaning, the scope and ambit of the jurisdictional term “harassment” as defined in Section 2(h) of the law in particular, the judgment gave an unduly “narrow and restrictive” meaning to it.

“It is submitted that while interpreting the term ‘harassment’ as defined in Section 2(h) of the Act, 2010, the judgment did act give effect to the words ‘sexually demeaning attitudes’ which were used in the definition disjunctively as these were preceded by the word ‘or’,” the petition read.

“Section 2(h) of the Act, 2010, defines ‘harassment’ as any unwelcome sexual advance, request for sexual favours 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 with such a request or is made a condition for employment,” it read.

The petition stated that the words “sexually demeaning attitudes” incorporated by the legislature in the definition of harassment in Section 2(b) was an independent category.

It added that it would constitute harassment on its own besides other specific acts as mentioned in the definition.

“From the plain language of the statute it is apparent that ‘harassment’ is not restricted to ‘harassment of purely sexual orientation and nature’ as has been held in Para 21 of the impugned judgment. With profound respect, it constitutes harassment even where any one of the acts as mentioned above are committed provided it is based on or triggered by considerations relatable to the gender of the victim. The latter interpretation is also supported by the fact and such fact is duly acknowledged in Para 21 of the impugned judgment itself that not only preamble of the Act but also in the title of the Act, the term ‘harassment’ and not ‘sexual harassment’ is used by the legislature,” the plea stated.

The petition read that as the menace of sexual harassment at workplaces was not peculiar to Pakistan and was indeed a regrettable universal phenomenon, it would be prudent to examine the jurisprudence that had developed in other jurisdictions.