Earlier this month Justice Justice Jawad Hasan passed a judgement in the Lahore High Court pertaining to a case of sexual harassment at a university. The judgement stood out for its take on the Protection Against Harassment of Women at Workplace (Amendment) Act, 2012.
After the judgement was passed, digital rights activist and lawyer Nighat Dad tweeted: "Justice Jawad Hasan passed a landmark decision around sexual harassment law... It doesn’t only elucidate the “employer-employee” relationship under the act but further extends protection to workers employed in any capacity to ensure constitutional right of equality."
She was referring to a part of the judgement which states: "In view of the above, the protection of women from being harassed at the workplace is already enshrined under the Constitution and was given under the Act and protected by the Executive and Judiciary. Moreover, this Act is not confined only to the relationship of an employer and employee; but it extends to all acts of sexual harassment committed by employer or employee with any women (at the workplace) by misusing/exploiting his/her official position/capacity."
Though the law on sexual harassment passed in 2010, lawyers and activists have pointed out that the act needs further clarification as it includes loopholes. For example, in the case of Meesha Shafi and Ali Zafar, commentators have claimed that it is unfair that Meesha Shafi’s sexual harassment complaint against Ali Zafar was dismissed by the Punjab ombudsperson on the basis of a technicality, ie. the fact that Shafi did not have an 'employment relationship' with the entity against whom the complaint was filed, ie. JS Events.
In light of the above, is the Lahore High Court's latest judgement a step towards greater clarity about the application of the sexual harassment law? Images spoke to four lawyers to shed light on the matter.
1. The judgment accounts for the experiences of workers who are self-employed or contracted through third parties.
According to lawyer Zainab Malik, the Lahore High Court's recent decision to extend the ambit of the Protection against Harassment of Women at Workplace Act, 2010 is an important step towards ensuring legal protections to Pakistani women in the work force.
"Whereas, previously the law was interpreted restrictively as applying only to sexual harassment committed by an employer towards an employee, the Honorable Court's decision has extended its protections to all women in the workplace from acts of employer and employee," she says. "In previous applications of the law, complaints of victims have routinely been dismissed on account of their not falling withing the ambit of the restrictive employer- employee relationship. This includes women who enter the workforce as self-employed individuals, including artists, entertainers and experts and workers contracted through third parties. The Honorable Court's decision has finally provided an avenue for redressal for this significant group in the workforce."
However, she points out that sexual harassment laws are still limited in some areas. "A continuing limitation in the law is its failure to extend its protection to the informal workforce as a result of the restrictive definition of what constitutes workplace. In a country where a significant number of women work in informal settings, including domestic work, and are vulnerable to all forms of harassment and abuse the law has thus far failed to extend any protections," she adds.
2. The judgement employs greater gender-sensitivity than ever before
According to advocate Sara Malkani, the judgment adopts a gender-sensitive approach to legislation designed to prevent and punish sexual harassment, providing much needed guidance on the application of the law.
"The decision moves away from a narrow interpretation of the law by reading it in light of entrenched gender-based inequality in society and the vulnerability of women to sexual violence and abuse," she says. "It is particularly noteworthy that Justice Jawad Hassan has cited with approval case law from other jurisdictions which says that in evaluating whether behaviour towards women amounts to sexual harassment, courts should adopt the perspective of the "reasonable woman" rather than a "reasonable man" or a "reasonable person." This reflects the understanding that women and men are likely to experience the workplace in fundamentally differently ways due to sexual discrimination and harassment, and the proper application of sexual harassment law must recognize this fact."
3. The judgement takes a stand against trivialising sexual harassment
According to lawyer Nighat Dad, the judgment deals expansively with workplace harassment in light of precedents from major legal systems. She says: "It explicates the “employer-employee” relationship and further extends protection to workers outside the said relationship and employed in any capacity."
"This will not only guarantee the constitutional right to equality but it will also maximize the scope of the Act thereunder any worker can seek legal recourse without having their case dismissed on “technical grounds.” It is also crucial to note that the decision was rooted in fundamental rights to equality and dignity of person and special emphasis was laid on safe working spaces of women to ensure their participation “in all spheres of national life.”
She adds: "Another highlight was the Honorable Judge’s opinion against trivializing sexual harassment. He dismissed the Petitioner’s frivolous claim that the victim was merely jealous and discussed the adverse consequences that women suffer in reporting such cases. He further identified an unsafe working environment as a deterrent towards women participation and discerned such violations as a fundamental breach of “the implied term of mutual trust and confidence.”"
4. However, the judgment may not necessarily have an impact on future rulings, especially outside Punjab
Lawyer Abira Ashfaque says: "My interpretation of the para "Moreover, this Act is not confined only to the relationship of an employer and employee; but it extends to all acts of sexual harassment committed by employer or employee with any women (at the workplace) by misusing/exploiting his/her official position/capacity” is that that regardless of the nature of the relationship between the accused and the victim – as long as the context of that relationship is the workplace, the statute is designed to cover that harassment."
"He goes on to allude to how a student-teacher relationship is not a typical employer-employee one – but still covered. But this is not new as many cases of teacher-teacher and student-teacher (possibly even school staff- teacher-student) have been found to be covered by the different versions of the act and decisions."
The more interesting part is “The intention of the legislature for enacting the Act to protect all employees from being harassed or exploited during employment which can be at the workplace or any environment as specified in their terms and conditions of the employment.”
This means as long as you are an employee (contractual or regular) you are within the ambit of the act’s protection. Contractual employees include apprentices and interns and the judge specifically says they can be hired on an hourly, daily, weekly or monthly basis.
He then goes on to describe workplace as “any place of work which includes any situation that is linked to official work or official activity outside the office.” This could mean the main or sub office, factory, field, or studio – anywhere the employer expects employees (contractual or not) to perform services.
Basically – any worker (regardless of their terms and duration of employment) is protected anywhere they work - would be a fair reading – and this seems substantiated throughout the decision by the judge’s multiple references for the need for women to attain dignity and feel safety at workplaces.
However - since the case involves a student and teacher, the question is whether the generous interpretation of the act to cover all employment settings is obiter dicta - which is literally other things said - as it does not pertain directly to the facts at hand - and therefore is not necessarily binding but persuasive (convincing but not precedent) for further cases in this jurisdiction - ie. Punjab - for us in Sindh, the whole case is persuasive and not binding."