Sexual harassment and selective protection

The order of the Federal Ombudsman in a sexual harassment case of a student at the Lahore University of Management Sciences (LUMS) has elicited a series of vociferous responses, particularly on social media. These range from an exchange of allegations and explanations, a disclosure of academic politics, to an analysis of the social assumptions surrounding female sexuality. Yet, a critique of the legal regime regulating sexual harassment at the workplace in Pakistan has been visibly missing.

Under the law, sexual harassment at the workplace is a civil as well as a criminal offence. The Protection Against Harassment of Women at the Workplace Act (2010) lays down a framework of civil remedies. Section 509 of the Pakistan Penal Code, following amendments in 2009, classifies sexual harassment in the workplace as a crime.

The law, however, is vague in many places and leaves much to be desired in terms of the ambit of its protection.

The act governs ‘organisations’, which include government ministries and corporations, educational institutions, medical facilities and private sector companies. The informal sector then clearly falls beyond the purview of the act, leaving domestic workers — a group most vulnerable to sexual harassment — entirely defenceless. With the Domestic Workers Bill 2013, still awaiting approval of parliament, this lacuna in the law assumes greater significance. Recent legislation on sexual harassment at the workplace promulgated in India in 2013 has, on the other hand, extended such requisite cover to women employed in a dwelling place or a house.

The question as to whether a ‘complainant’, otherwise defined in the Act as any “man or woman”, must of necessity be an employee of the organisation is also controversial. A reading of the definitional clause of the Act controverts against such conclusion. Yet other provisions, namely section eight, seem to confine protection of the act to employees alone.

Such ambiguity in the law exists not only by reason of internal contradiction within the structure of the Act. Conflicting interpretations articulated by the ombudsman and the ministry of law confound the situation further.

In a case of sexual harassment of a student by an instructor at the Quaid-e-Azam University in 2011, the Ombudsman unequivocally ruled that the “Act equally applies to employers, employees and students”. The Ombudsman followed the same reasoning in its decision regarding the controversy at the university. The ministry, however, ascribes to a different opinion: that the 2010 Act only regulates employer-employee relationships and is inapplicable to students. On the basis of such restrictive construction, President Asif Ali Zardari set aside the order of the Ombudsman, and thereby the termination of the accused instructor from the university.

One may question the ascription of what are ostensibly judicial powers to the executive, but that would demand an independent analysis.

The following questions are more relevant for our current purposes: where exactly does the law stand regarding the scope of protection extended by the Act? Is a female student, who is otherwise an integral part of an educational institution, to be denied the remedies provided under the Act merely because she is not an employee? What of a man or woman sexually harassed by an officer during a visit to a government department or those employed in the informal sector? Do transgendered individuals, categorised neither as man nor woman, fall beyond the ambit of the legislation? Surely, legal recognition of the equal right to citizenship of these members of our society would render such denial questionable?

The answers to the above are at best obscure, or point to the exclusion of those who do not fit within the definitional paradigms set out in the Act. As a consequence, vulnerable groups — domestic workers, students, visitors or members of the transgender community — may be denied necessary legal protection from sexual harassment at a place of employment.

Legislative measures in Pakistan directed at the prevention and addressing of sexual harassment at the workplace are without doubt essential. However, the ambiguity and selective protection offered under the 2010 Act weakens an otherwise laudable legal regime. To ensure effective censure and reparation, the question regarding the scope of the Act must be answered with clarity and any exclusion made ought to be rational and justifiable. The 2010 Act in its existing form fails in this regard, and must be amended accordingly.

Published in The Express Tribune, November 18^th, 2014.

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