Harassment ; A Power Crime

A landmark amendment in the domain of the Protections Against Harassment of Women in Pakistan has been adopted in 2022 enwidening its scope to cater and cover both formal and informal workplaces. For sure it has expanded the definition of word “harassment” to its true sense and modern-day world challenging issues, as it’s the closest definition of the very term which has been incorporated in the Violence and Harassment Convention C-190 of World Labour Organisation (ILO), which is yet not ratified by Pakistan.

World Economic Forum reports suggests Pakistan being 145^th in ranking out of 146 in terms of Gender based parity in 2022.A landmark judgement by Supreme Court in 2021 became the point of acceleration amid amendment Protection against Harassment of women at workplace 2010 Act. Section 2h (ii) is the “gamechanger”, discrimination on basis of gender, which may or may not be sexual in nature, but which may embody a discriminatory and prejudicial mind set or notion, resulting in discriminatory behavior on basis of gender against the complainant; Harassment”, as understood in this context, was held to include exploitation, humiliation and hostility, all of which would amount to actionable gender-based harassment. It was held that “harassment” includes behavior which is promoted on account of gender as a result of gender-based power dynamics, which is not necessarily a product of sexual desire or sexual activity.Hence giving effect to better development of understanding of Gender -Based-Discrimination in C-111 Discrimination ( Employment and Occupation) Convention, 1958 International Labor Organisation (ILO) as it says discrimination includes–any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;

The latest Amendment in 2022 signifies a significant advancement in workplace regulations, encompassing both formal and informal sectors. This aligns the legislation with the 2019 definition of the workplace by the International Labour Organisation (ILO) Violence and Harassment Convention (C190), pending ratification by Pakistan. One noteworthy expansion involves the inclusion of domestic workers within the legislative scope, affording legal protection to a demographic previously excluded despite being at an elevated risk of harassment.

The amended provisions necessitate all public and private organizations to adopt an internal Code of Conduct. Which although shall be amended to be given under the Suo moto jurisdiction of the Ombudsperson for protection against Harassment for effective and objective application purposes. Simultaneously, a comprehensive complaint and appeals mechanism must be established, aiming to cultivate a secure working environment for women. Fundamentally, the Act builds upon the principles of equal opportunity for both men and women, reinforcing their constitutional right to pursue a livelihood without fear of discrimination, as outlined in the Constitution of Pakistan. Ombudsperson on harassment issues, have been granted powers and procedures yet need and highly recommended to be granted Suo moto powers specifically in the Harassment cases for more efficient and speedy justice system hence Ombudsperson’s is the most effective mean of Resolution to the problem in this modern-day world dynamics.

The responsibility for Implementing this Act lies with employers. Key obligations include integrating the Code of Conduct into their management policies. The Act also mandates the conspicuous display of the Code of Conduct within the organization and workplace. It opens up arena of local language displays at the remote places along with Urdu language as well. Rather language will play as combating tool in the battle Against Harassment within rural to urban culture in our State. As punitive measure, Penalties for non-compliance are outlined in the Act. Employers failing to adhere to the stipulations may incur fines ranging from a minimum of twenty-five thousand rupees to a maximum of one hundred thousand rupees, serving as a deterrent for non-compliance, the test is of implementation; A check and balance mechanism implied. It is imperative that an awareness campaign is conducted in the each province of the to highlight the Provincial Government’s vision for creating a harassment free environment along with FOSPAH as well.This programme would involve mass awareness campaign in each and entire province especially women at workplace in both public and private sectors in urban and rural areas having basic idea to enhance awareness about the Legal procedure for redressal of grievance in cases of harassments in any form.

In the year 2023 Alone, a considerable increase is seen before Federal Ombudsperson Secretariate For Protection Against Harassment (FOSPAH). office have received 9578 complaints within two years from 2020 to 2022.Punjab Ombudsperson’s office alone have received 9578 complaints within two years from 2020 to 2022, which still is a big challenge!

In fundamental understanding; this very Legislative Initiative depicts a critical positive step towards formalizing workplace regulations, ensuring the safety and well-being of all employees. The successful implementation of the Protection against Harassment of women at the Workplace (Amendment) Act, 2022 depends and requires the diligent adherence of Organizations to the stipulated guidelines both at formal or Informal arrangements. Harassment law dynamic needs further more broader Jurisprudential interpretations, since it has finally added he term gender-based discrimination as a form of harassment. Needless to say, it is appreciable as a breakthrough on the following resulting legal impacts; One it has introduced informal and formal economy suggesting very clearly from this that domestic workers are a subject of the law. And now domestic worker indirectly has been a visible personality, Secondly it has added the workplace expansion to any area where work relation is possible, may it be dwelling house. Thirdly it has added all other kinds of workers into the protection domain against harassment including who is working remotely, at homes, it has introduced very clear application to freelancers, gigs etc. Fourthly  it has surely introduced and addressed the word “Any person” which opens avenues harassment of any form from male to male, female to female, male to female, female to male, gender minority to gender minority, any person may also include a child even. Here the Jurisprudence is yet to be developed in Pakistan by Courts, and the concerned Ombudsperson’s orders and decisions.A sign of hope is now manifested after admission of a case by a Complainant who was a transgender working at some Governmental Organization allowing any Complaint before the Forum of FOSPAH as maintainable which involves any gestures or expression conveying derogatory connotation causing interference with work performance or creating an intimidating, hostile or offensive work environment. Fifthly expansion of word Harassment to the inclusion of Discrimination on the basis of gender which is the heart of this very piece of Amendment as becomes the Test Clause for our Legal Regime ,Jurisprudence and the world of Legal Interpretation in Pakistan.

Harassment issues are at massive levels as Pakistan is one of the informal economies where females are less then 24% of the total economy, Gender parity (which are slowly alleviated after ratifying the ILO C-100 Equal Remuneration Convention, 1951) is another challenge needing to be conquered as Sustainable Development Goal # 5 (Achieve gender equality and empower all women and girls) is yet to achieved. Article 3(3) sanctions very clearly that Differential rates between workers which correspond, without regard to sex, to differences, as determined by such objective appraisal, in the work to be performed shall not be considered as being contrary to the principle of equal remuneration for men and women workers for work of equal value.UN SDGs suggest our low ranking has been exacerbated due to post Covid dimensions.

According to the Global Gender Parity Index Report 2022, Pakistan was 145^th out of 146 for economic participation and opportunity, 135^th out of 156 for Educational attainment, 143^rd out of 156 for health and survival, and 95^th out of 156 for political empowerment. We have shown considerable betterment in ‘women in politics’ yet we severely lack in other regards. Moreover, according to the Global Gender Gap Report 2023 by the World Economic Forum, Pakistan, ranked 142nd, demonstrates a gender parity rate of 57.5%, marking its highest level since 2006. Over the past decade, notable progress is evident in the Economic Participation and Opportunity subindex, with a commendable increase of 5.1 percentage points, resulting in a current parity of 36.2%. Despite this improvement, it is crucial to acknowledge that this level of parity remains among the lowest globally. The advancements on the Economic Participation and Opportunity subindex are widespread, with notable strides observed across all indicators. Particularly noteworthy are the improvements in the representation of women in technical roles and the achievement of wage equality for comparable work. Despite facing relatively high disparities, there is gradual progress in achieving parity in literacy rates and enrollment in secondary and tertiary education, contributing to an 82.5% parity on the Educational Attainment subindex. In terms of Health and Survival, Pakistan has achieved parity in the sex ratio at birth, resulting in a 1.7 percentage point increase in subindex parity since 2022. Similar to the global trend, Pakistan’s most significant gender gap lies in Political Empowerment, standing at 15.2%. Over the past 50 years, the country has experienced female leadership for 4.7 years, with women constituting one-tenth of ministerial positions and one-fifth of parliamentary seats.

Supreme Court  Nadia Naz v Federation of Pakistan 2021, has very rightly highlighted the very definition of word Harassment even before the Introduction of the aforementioned Amendment act 2022 herein referred to Catherine A.MacKinnon’s who, in her writing Sexual Harassment of Working Women by Yale University Press 1979 , has attempted to give understanding that sexual harassment is a  persuasive social problem hence sexual harassment is a form of sex-based discrimination, reducing a woman’s potential for social equality and decreasing her  workforce participation participation in the workplace.In this regard Gender based Violence is much emphasized as its urged in 2023 that Parliament take initiative to promulgate as National Commission on Human Rights published in its Domestic Violence report march 23 that ICT domestic violence Bill be enacted to ensure G.B.V Elimination indicator which ultimately would pave ways to further enactments at Provincial levels as well akin to post 18^th Amendment legal regime.

In Islamic perspective, we have a candid direction within the Holy Ko’ran that Whatever your females earn, it’s theirs ; “To men is allotted what they earn, and to women what they earn: But ask God of His bounty. For God has full knowledge of all things.”(An-Nisa’ 4:32)Hence financial empowerment as a basic concept is permissible unconditionally. We have to admit rather confess in today’s Data Age, that men and women If both perform equally in economy, do decent remunerational works, poverty line would decline, leading to sustainable living enhancement , paving our way to achieve SDGs effectively as well. Female empowerment, equality in all kinds of access to educational opportunities, political participation, socio-economic inclusions would create an atmosphere of balance, parity and happiness based on emotional strengths and peace at individual as well as collective level in our society. Peace of mind is the key indicator of any progression. In my opinion Harassment in what so ever form is A Power Crime; Countered alone by Gender Empowerment . Allah has sanctioned us Dignity and equality as Human Beings. Equality of rights featured with clarity in that Males have rights towards females and in the similar way females have rights towards male; (Sura Al- Bakra ; 2:228)

 Hence making all efforts are appreciated yet our pace is slow, and We must spread awareness, educate people especially males to understand through our academia syllabi the sensitivity of the gender parity issues and rights towards each other if we really want to evolve as a nation. Unless we all are a mob of people, not a Nation. Our Constitution of Pakistan 1973 Article 25(3)  creates spaces for  special laws and rules for specific issues facing women and children, which are being continuously or deliberately ignored, and Article 34 should play as umbrella-like guiding principle in the wake of development. We can combat the challenges of Harassment issues, Gender based Discriminations (G.B.D) and (G.B.V) Gender based Violence, Inequality approaches, Gender pay gaps and economic high positioning at various posts; only by school awareness programmes and Charactor Building classes, Colleges and Universities awareness with youth intervention, and Community based interactive arrangements. Significantly-focused training sessions of all categories of teachers in public and private sector, Sensitised training of our Judiciary, Police officers and Public officers. If we can fight Covid-19 Pandemic ,by determined and focused utilization of every kind of Media; from Press to Digital or  Electronic to Social why cannot we succeed in the war against Harassment. Without positive, inclusive and honest training of our male mindset, winning against patriarchal masculine perspective-based society is surely beyond expectation. Last but not the least we shall remember, follow and make people aware of the very direction which Almighty Allah endowed; Indeed, We have Dignified Mankind (17:70).

Syeda Fatima Batool Advocate

M.A, L.L.M (University of London)

[email protected]
+92 302 8431462