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The patriarchy operates in many realms. The workplace is one of them, and Pakistan’s is no exception. The situation of the female population in Pakistan has never been an easy one. Women have often been the victims of gender-based violence, sexual harassment, and discrimination: from 2008 until 2010[1], there were over 500 cases that were reported relating to workplace harassment. According to an empirical study, 50% of women in the public sector of Pakistan’s workforce have been victims of sexual harassment.[2]
Pakistan’s International Obligations
Pakistan’s international legal obligations lead us to the seminal International Convention of Civil and Political Rights (ICCPR).[3] The treaty, signed and ratified by Pakistan, recognises the equality and inalienability of every person and his/her rights, whilst also prohibiting any discrimination on the grounds of sex.[4] Under Article 2 of the treaty, the ICCPR essentially obligates States to legislate matters that eliminate any discrimination on the grounds of gender.
Beyond the general framework laid by the ICCPR, the Convention for the Elimination of Discrimination Against Women (CEDAW)[5], which Pakistan has both signed and ratified, offers greater focus in dealing with discrimination faced by women. A brief digression must be made here to delineate the effect of merely signing a treaty, as opposed to ratifying it as well. The former alludes to a state expressing its intent to be bound by a treaty, whereas ratification legally binds a state to such compliance. As will be seen down the line, this is a subtle yet crucial distinction. Back to CEDAW, however the treaty recognizes the equality of rights within the ICCPR and states that discrimination against women is a violation of the former. Article 1 of CEDAW defines discrimination against women as “any distinction based on gender which results in the “impairing or nullifying the recognition, enjoyment, or exercise by women…of human rights and fundamental freedoms…”. Article 2 obligates State parties to tackle discrimination against women by, inter alia: formally affirming the equality of the genders; adopting legislative measures that prohibit discrimination and protect the rights of women; and taking measures to ensure the likes of public authorities, enterprises, and existing legislation are all in accordance with non-discriminatory practice.
Some provisions of CEDAW come closer to hitting the nail on the head. General Recommendation No. 19[6] of the Convention’s Committee stresses the “close connection between discrimination against women, gender-based violence, and violations of human rights and fundamental freedoms.”, whilst CEDAW itself extends this coverage to matters pertaining to the workplace.[7] Article 11(a) holds the right to work as an inalienable right whereas Article 11(c) states that discrimination related to the right to promotion and job security must be eliminated. The protection afforded by such a provision is especially crucial considering how women’s job security or promotion is often made conditional on the basis of acquiescence to discrimination, including sexual harassment.
The abovementioned forms the bulk of Pakistan’s international obligations with respect to the harassment of women at the workplace and can be summed up as such: to prohibit the discrimination of women in the form of harassment at the workplace; to make laws that protect women and impose sanctions in such occurrences; to make all reasonable steps in ensuring that any organization acts in conformity with such measures.
There are problems, however, that relate to the operation of these obligations. Firstly, whilst Pakistan may be a signatory to CEDAW, it has neither signed nor ratified its Optional Protocol.[8] This must change; the Optional Protocol allows for oversight on the State by allowing women to communicate claims of any violations, including discrimination premised on workplace harassment, to the Committee. It also allows the Committee itself to conduct inquiries into any matter it may see as a grave violation of the rights protected by CEDAW. Not signing the Protocol means that any women harassed in the workplace cannot rely directly on a treaty to which Pakistan is a signatory to. Furthermore, the lack of signature means that the Committee has no standings to overlook and make visits to inquire as to the state of affairs regarding the rights of women to work in safe conditions with no impediments. Ratification of the Protocol to ensure legal compliance is a step too far for now; Pakistan must sign it in the first place.
Secondly, beyond these provisions, which are far and few in-between in specific relevance, there is a lack of international obligations on Pakistan specifically catering to the harassment faced by women in the workplace. This is to the detriment of affected women who can only seek to plead their case before Pakistani domestic courts, in moving against harassment, in molds of discrimination determined by CEDAW.
Notwithstanding, we must now venture to see whether Pakistani law on the matter, as it stands today, meets these obligations.
Pakistani Law on Harassment Faced by Women in the Workplace
Pakistan’s enactment of the Protection Against Harassment of Women in Workplace Act 2010[9], and its recent amendment,[10] constitutes the latest attempt to tackle this situation. The Act, in its original form, was highly ineffective and prone to complaints on the grounds that it was extremely limiting in scope as it portrayed sexual harassment simplistically as a non-consensual sexual act initiated on company premises, and strictly against “contractual” and “regular” employers. Pakistani jurisprudence has confirmed these limitations.
The cases of Meera Shafi v Office of the Governor Punjab[11], and Nadia Naz v The President of Islamic Republic of Pakistan[12], interpreted notions of “harassment” and “employee”, and confirmed that a lawsuit could only be brought forth, regarding these two notions, if: the victim’s employment status was officially confirmed by a contract, or if the complaint was based on a strictly sexual advance.
Due to such judgements, a majority of subsequent legal cases of a similar nature did not provide any legal remedy for the victims. Estimates show that from 2014 to 2017, in 38% of cases out of 98 lawsuits filed, the petitioners decided to withdraw from the legal process.[13] Even recently, according to the latest publication by the Human Rights Commission of Pakistan published in 2020, women were still in the position of being an “easy target” for sexual harassment, especially in areas of education and healthcare.[14]
The Protection Against Harassment of Women at the Workplace (Amendment) Act 2022[15] was passed after consultation with various stakeholders, including civil society organisations, to address the previous concerns and to amend definitions under the Act in a more inclusive manner. For one, the amendment does this by expanding the scope of its protection vastly. It now protects a “regular, contractual, piece-rated, gig, temporary, part-time, freelance employee whether employed through express or implied contract on daily, weekly, monthly or hourly basis, and shall include a student, a performer, an artist, a sportsperson, an intern, trainee, a domestic worker, a home-based worker or an apprentice whether working for renumeration or not, or whether working on a voluntary basis or otherwise.”[16] The move away from only recognising contractual or regular employees, to such comprehensive expansion allows for a grounded definition in touch with local realities. For example, common informal professions dominated by women often left helpless by power dynamics, such as domestic work, can now be regulated under the law. Granting coverage to such a vast spectrum of people falling under the Act, who previously had no remedy for discriminatory harassment, is in conformity with Pakistan’s international obligations to enact law that eliminates discrimination against women and allows them the right to safeguard their inalienable right to work freely, under Article 11 of CEDAW.
Furthermore, the notion of harassment, now includes “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…”.[17] The original version of the Act limited its application to acts of a sexual nature only. The amendment embraces CEDAW’s emphasis on discrimination-free practice and moves away from this original limitation. It correctly recognizes that not all acts of harassment are sexual in nature and, thus, offers a remedy to any woman harassed in the workplace by way of any non-sexual manner, such as offensive remarks alluding to her generally, her age, ethnicity, or religion. Some have noted that expanding the scope of the definition so widely may result in its dilution, especially when provisions in the Pakistan Penal Code (PPC) for such acts exist.[18] This is a valid concern. The overlapping of different statutory provisions that essentially talk about the same offence under the same context, especially Section 509(ii) of the PPC[19], leads to confusion within the law about the respective positions of the two streams of law and must be clarified.
Lastly, another significant improvement the amendment brings is modifying the definition of a “workplace” to include: “any place where services are rendered or performed by professionals, including educational institutions, gigs, concerts, studios, performance facilities, courts, highways, sporting facilities and gymnasiums”. By listing such comprehensive examples and including “any situation that is linked to official work… outside the office” the amendment marks its intent to cover acts of harassment at the workplace as broadly as possible. Doing so allows victims of workplace who were not harassed on ‘official premises’ to seek their rights, including women commuting or women on a work-related trip. By doing so, Pakistan admirably dispenses its international obligation, under Article 2 of CEDAW, to adopt legislative measures that protect women and eliminate discrimination against women by employers..
The Way Forward
The situation is still far from perfect. Issues that have yet to be answered still exist. One of the main issues is the lack of enforcement in implementing the Act within organizations. Whilst the Act provides sanction for someone found guilty of harassment, there is no provision that mandates any kind of sanction for an employer who does not implement the steps provided by the Act; it seems that this implementation is solely up to the “goodwill” of an organization’s management.
Thus, while the creation of an “Inquiry Committee” is mandated under Section 3 of the Act, there is no provision to enforce such an act. This means that the employer is under no strict obligation to form what is the very backbone of any proceeding under the Act. The latter is supposed to: oversee any complaints, inquire into any evidence, provide a safe environment for complainants, and forward its findings to the final authorities. Leniency as to its formation essentially defeats the purpose of such a practical and progressive law. Furthermore, the formation of such a committee may be questionable if carried out against a high-ranking executive, who can influence the committee and its composition to his favor. This necessitates an outside mechanism that oversees the fair creation and operation of the Act within a company and does not leave such operation on a non-binding basis, especially if the management sees no use in promoting such actions.
The International Labor Organization’s Violence and Harassment Convention 2019[20], to which Pakistan is not a signatory, is the latest endeavor to comprehensively tackle harassment. The Convention is a holistic manifestation of what an effective solution targeting the problem would look like. It recognizes the right to a world of work free of harassment and acknowledges that “gender-based violence and harassment disproportionately affects women and girls…” Whilst Pakistan’s domestic definitions of ‘worker’, ‘workplace’, and ‘harassment’ line up with the Convention’s, the latter goes further in providing a sturdier framework that protects women from harassment at the workplace. Thus, Article 4 of the Convention obligates signatories to adopt national laws that are “ inclusive, integrated and gender-responsive approach…” and holds that such approaches include access to remedies for victims and improving monitoring/enforcement mechanisms,[21] as well as increasing awareness.[22] The Convention recognizes that some occupations are more prone to harassment, and on these lines of realism, obligates states to consult and identify such sectors and work on protecting them.[23] Crucially, the Convention, under Article 9, obligates states to “adopt laws and regulations requiring employers to take appropriate steps commensurate with their degree of control to prevent violence and harassment in the world of work…” This is currently a lacuna in Pakistani law, and one which the Convention would fill by making mandatory the formation of a workplace harassment policy, and the provision of training on the hazards of harassment to workers. The accompanying Recommendation Number 206 of the Convention thoroughly explains how these provisions can be followed upon.[24] International law has its answer to the question of how women can be protected from harassment in the workplace: Pakistan should sign the Convention and follow suit.
[1] Munir Moosa Sadruddin, ‘Sexual Harassment at Workplace in Pakistan – Issues and Remedies about the Global Issue at Managerial Sector’ [2013] 7(1) Journal of Managerial Sciences, 114.
[2] Maria Khan and Ayesha Ahmed, ‘The Protection against Harassment of Women at the Workplace Act 2010: A Legislative Review’ [2017] 3(1) (LUMS Law Journal) 91.
[3] The International Covenant on Civil and Political Rights 1996.
[4] Ibid, Article 26.
[5] Convention on the Elimination of All Forms of Discrimination Against Women 1979.
[6] UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendation No. 19: Violence against women [1992].
[7] Article 11 (n 7).
[8] Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women 1999.
[9] Protection Against Harassment of Women in Workplace Act 2010.
[10] The Protection Against Harassment of Women at the Workplace (Amendment) Act 2022.
[11] [2020] PLD 54.
[12] [2019] Civil Petition No. 4570.
[13] Rida Tahir, ‘Nadia Naz v President of Islamic Republic of Pakistan: Supreme Court of Pakistan Restricts the Scope of ‘Protection against Harassment of Women at the Workplace Act 2010’ (Oxford Human Rights Hub, 19 October 2021) <https://ohrh.law.ox.ac.uk/nadia-naz-v-president-of-islamic-republic-of-pakistan-supreme-court-of-pakistan-restricts-the-scope-of-protection-against-harassment-of-women-at-the-workplace-act-2010> Accessed 09 March 2022.
[14] Human Rights Commission of Pakistan, ‘State of Human Rights 2020’ [2020] <http://hrcp-web.org/hrcpweb/wp-content/uploads/2020/09/website-version-HRCP-AR-2020-5-8-21_removed.pdf> Accessed 10 March 2022.
[15] Ibid (n 10).
[16] Ibid, Section 2(f).
[17] Section 2(h) (n 14).
[18] Iqra Bano Sohail, ‘Protection Against Harassment Of Women At Workplace Act 2010’ (Research Society of International Law, 2020).
[19] The sections defines and mentions all cases that may will be considered as an ‘insult to modesty’ or ‘sexual harassment’. It prescribes imprisonment up to three as well as potential fines. Alongside the application of the 2010 Act, this essentially creates parallel jurisdiction for the same matter.
[20] Violence and Harassment Convention 2019.
[21] Ibid, Article 10.
[22] Ibid, Article 11.
[23] Ibid, Article 8.
[24] Violence and Harassment Recommendation 2019.
Bibliography
Pakistani Cases
Meera Shafi v Office of the Governor Punjab [2019] PLD 54.
Nadia Naz v The President of Islamic Republic of Pakistan [2019] Civil Petition No. 4570.
Pakistani Legislation
The Protection Against Harassment of Women at the Workplace Act 2010.
The Protection Against Harassment of Women at the Workplace (Amendment) Act 2022.
Treaties
Convention on the Elimination of All Forms of Discrimination Against Women 1979.
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women 1999.
The International Covenant on Civil and Political Rights 1996.
Violence and Harassment Convention 2019.
Secondary Sources
Human Rights Commission of Pakistan, State of Human Rights 2020 (Human Rights Commission of Pakistan 2020) <http://hrcp-web.org/hrcpweb/wp-content/uploads/2020/09/website-version-HRCP-AR-2020-5-8-21_removed.pdf> accessed 10 March 2022.
Khan M and Ahmed A, The Protection against Harassment of Women at the Workplace Act 2010: A Legislative Review (LUMS Law Journal 2017).
Sadruddin M M, Sexual Harassment at Workplace in Pakistan – Issues and Remedies about the Global Issue at Managerial Sector (Journal of Managerial Sciences 2013).
Sohail I B, Protection Against Harassment Of Women At Workplace Act 2010 (Research Society of International Law 2020).
Tahir R, Nadia Naz v President of Islamic Republic of Pakistan: Supreme Court of Pakistan Restricts the Scope of ‘Protection against Harassment of Women at the Workplace Act 2010 (Oxford Human Rights Hub 2021).
Violence and Harassment Recommendation 2019.
Gowans, C., [image] Available at: < https://www.theguardian.com/world/2017/oct/16/facts-sexual-harassment-workplace-harvey-weinstein> [Accessed 28 March 2022].
Authors
Smam Abdallah Mir
Team Lead and Coordinator, RCIL & HR
Amina Zekovic
Research Assistant, RCIL & HR