Understanding Pakistan’s Sexual Harassment Law

Published as a three part series for Express Tribune Blogs starting Nov 9, 2019. This compiles all three parts

Meesha Shafi’s case has allowed sexual harassment to enter into the mainstream discourse in Pakistan. More recently, the traumatic experience recounted by Jami shows how harassment and sexual violence are acts of power that do not spare any gender. These victims, and the countless others who have come forward, have shown the problems of a legal system infused with patriarchy which prevents victims of sexual harassment from obtaining justice.

Shafi’s case put the Protection against Harassment of Women at the Workplace Act, 2010 in the spotlight. As the Act’s name suggests, it is a legislation that is limited in scope since it applies only to instances where harassment occurs at the workplace. This often means that before the merits of a harassment claim can even be begun to be heard, an adjudicatory body must first establish three things: was the victim an ‘employee,’ did the harassment happen at the ‘workplace,’ and was the accused an ‘employee?’ A negative answer to any of these questions will result in the case being dismissed before any arguments on the actual harassment can be heard. This is, in fact, what happened in Shafi’s case before the Lahore High Court. The High Court ruled that Shafi was not an employee and was not at a ‘workplace’ during the alleged incident as per the 2010 Act’s definition.

It is therefore important to understand that the 2010 Act comes with its own set of technical legal hurdles that must be overcome before its provisions can be invoked.

So, what happens if a woman or a man is harassed outside the workplace?

The Pakistan Penal Code provides in section 509 that an act of sexual harassment, wherever it may occur, is a criminal offence. Section 509 covers a wide variety of conduct that can constitute sexual harassment. Its definition of sexual harassment is reproduced as follows:

“conduct sexual advances, or demand sexual favours or uses verbal or non-verbal communication or physical conduct of a sexual nature which intends to annoy, insult, intimidate or threaten the other person or commits such acts at the premises of workplace, or makes submission to such conduct either explicitly or implicitly a term or condition of an individual’s employment, or makes submission to or rejection of such conduct by an individual a basis for employment decision affecting such individual, or retaliates because of rejection of such behaviour, or conducts such behaviour with the intention of unreasonably interfering with an individual‘s work performance or creating an intimidating , hostile, or offensive working environment.”

It may surprise some people that section 509 covers instances of harassment in the workplace as well. The logical question being: why have two laws on the same issue? This is because the 2010 Act creates what is known as ‘civil liability’ i.e. it sets out compensatory provisions, and at best, recommends that the accused be removed from employment. This is the maximum penalty. Section 509, on the other hand, creates ‘criminal’ liability. An offence under section 509, unlike the 2010 Act, can result in punishment which may extend to three years in prison. It may also involve payment of a fine to the state of up to PKR 500,000/-.

Therefore, in any situation, section 509 should be the first legal provision invoked by victims of sexual harassment. First, because it creates criminal liability and prescribes a harsher punishment, therefore serving a greater deterrent effect on acts of sexual harassment. Second, because it does not necessitate proving anything other than the act of harassment itself, such as an employer-employee relationship. Third, the forms of behaviour that are liable to be called sexual harassment are far more accommodating of the broad variety of actions that can be used to harass someone.

So, why isn’t section 509 used more frequently by men and women? Why, for example, would Shafi go the route of the 2010 Act rather than section 509? These questions can only be answered by understanding that while laws to protect women exist in Pakistan, institutional patriarchy prevents them from serving their purpose.

While I will examine and explain the 2010 Act in more detail later in this series of articles, let me briefly explain why it is often seen as a more preferable route for victims of sexual harassment: the 2010 Act’s adjudication process happens before an Ombudsperson – not a court. Section 509’s proceedings happen before our lower courts.

That should give you a clue. If my time in litigation has taught me anything, it is this: our court system is a swamp of patriarchy.

Our lower courts are not a conducive environment for women to bring claims of sexual harassment. The court system involves women being harassed within court premises. Male court staff, male lawyers, and predominantly male judges give some prurient gazes that would make Harvey Weinstein blush.

This should not surprise anyone. Our lower courts are public places, and like all public places in Pakistan, they are not healthy environments for women. Given this, we cannot blame women for trying to avoid all of that and try to go before an Ombudsperson, or, resorting to social media.

The lower courts also harbour many of the patriarchal biases that can be found throughout Pakistan. For example, Shafi would probably not get a fair trial before a judiciary dominated by men who assume that women in the entertainment industry are ‘characterless.’ Similarly, a male victim of sexual abuse is often publicly shamed by the court. Section 509 states that even things like whistling at a woman are to be construed as sexual harassment, yet it is hard to even imagine a judge in our lower judiciary ever taking such a claim seriously. Patriarchal structures in our courts mean that a woman will be harassed even in her attempt to prove harassment. Therefore, alternative avenues like the 2010 Act’s Ombudsperson, or social media, will continue to be the best options for victims to highlight their issues until we fix our courts and begin to treat sexual harassment as a societal problem.

Structural patriarchy does not just exist in our lower courts. It manifests in our police stations too. For a case under section 509 to actually arrive before a court, the victim of sexual harassment will first have to go to the police to get an FIR registered. The problem is that sexual harassment has become so normalised in our society that while the law can say that even a sound or gesture constitutes harassment, the police think these instances are commonplace and not really worthy of an FIR. And without an FIR, there is no trial.

Furthermore, the same problem regarding an environment of harassment exists in police stations just like it does in our lower courts. These patriarchal barriers prevent women from obtaining justice through the ordinary course of the criminal law. They prevent victims from coming forward. They force victins to relive the trauma of harassment. They are abhorrent hazards in the access of justice.

But even if an FIR is registered, and a victim braves the court environment, the substantive criminal law is still against them. This will be the point I will discuss in the next article in this series.

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In my previous article in this series I wrote about how section 509 of the Pakistan Penal Code makes sexual harassment a criminal offence. However, as I argued, structural patriarchy in terms of the court system and the police pose obstacles for victims of sexual harassment from coming forward. To conclude my analysis of section 509 it is vital to talk about certain substantive legal principles that perhaps fail to understand the unique issues that cases of sexual harassment exhibit.

Feminist theorists such as Catherine MacKinnon have spoken at length about how the female perspective has been historically excluded from debates regarding how the law should be developed. Therefore, legal principles often neglect to address issues that are predominantly faced by women while shaping the law on a particular area. The root cause of this is of course patriarchy. Patriarchy has made it difficult for both men and women to look to the law to obtain justice in cases of sexual harassment and abuse.

Consider first that a victim of sexual harassment must register a FIR as soon as possible after the alleged incident has occurred. The greater the delay between the registration of a FIR and the incident, the greater the possibility that the FIR will be treated as suspect by a court of law. Ordinarily, this makes sense, but this legal principle can be fatal given the particular nature of sexual harassment cases.

Victims of sexual abuse do not come forward until a significant amount of time has passed. In fact, most victims of sexual harassment don’t speak up at all. According to the National Sexual Violence Resource Centre (based in the United States), 63% of sexual assault cases are not reported to the police, while only 12% of child sexual abuse is reported to the authorities. Much of this has to do with trauma. The psychological trauma that harassment entails is the biggest deterrent against victims speaking up. For the retelling of harassment asks victims to relive the harassment. To battle that trauma, to eventually come to a place where someone can have a conversation about it with complete strangers (i.e. the police or lawyers) takes time, bravery, and resilience. This is over and above the courage needed by a victim to face the backlash that follows speaking up. The usual gamut of allegations of ‘liar,’ ‘attention seeker,’ and ‘opportunist.’

Of course, one might argue that the law is being perfectly reasonable in having a principle that asks victims to not delay going to the police. The justification for this rule is based on the concept that people will be unable to recollect what really happened once a considerable amount of time has passed, therefore making the victim’s recollection doubtful. My point is that delay should not be fatal to a criminal case of sexual harassment. To understand this point let’s take a look at the testimony of Christine Blasey Ford, a university professor who alleged that the nominee for the Supreme Court of the United States, Brett Kavanaugh, had sexually assaulted her 36 years ago.

Recounting before the Senate Judiciary Committee how Kavanaugh and his friend, Mark Judge, had harassed her, Ford said:

“Indelible in the hippocampus is the laughter. The uproarious laughter between the two, and their having fun at my expense.”

When Democratic Senator Dianne Feinstein asked her how, after decades, she could be sure of what had happened, Ford explained how trauma and memory work.

Ford wasn’t quoting some Wikipedia article – she is an expert in the field of psychology, with a doctorate in the subject. She explained how because of “norepinephrine and epinephrine” in the brain, neurotransmitters embed memories. The consequence of this, according to Ford, was that “trauma related experience is locked there, so other memories just drift.”

What this means is that victims of sexual harassment are unlikely to forget the experience. It is seared into their brain. According to psychiatrist, Richard A Friedman, survivors of traumatic experiences vividly recall the events even after a long period of time.

If this is true, then the legal principle that delay in a FIR is fatal must make an exception in cases of trauma such as sexual harassment. Furthermore, given that there is sufficient scientific research on this subject, the rationale for the delay rule seems to fall apart in sexual harassment cases. Of course, context matters given the broad wording of section 509 and the types of harassment it encompasses. How such an exception is to operate and how it needs to be tailored must be debated. Currently, the debate doesn’t even exist.

The second substantive point that the law must address is regarding evidence.

Sexual harassment often occurs against the victim by someone they know well, and, occurs where there are only two people present: the victim and the predator. In such cases the only evidence available is the testimony of the victim.

The criminal law generally demands that an independent witness, or, independent evidence exist in order to verify the account of the victim. The sole testimony of the victim is in most cases not seen as sufficient for a conviction.

In cases of rape, the law in Pakistan allows that the sole testimony of a victim can be sufficient evidence for convicting an accused. This doesn’t mean that whatever a victim says is taken as the gospel truth. The victim must stand the test of cross-examination by the accused’s counsel. If after cross-examination the victim’s testimony still remains free of contradiction, then the court may view their testimony as sufficient evidence.

The law must make sure that the same principle applies in cases of sexual harassment. The nature of the offence is such that the victim’s statement will usually be the sole evidence available. Asking other people whether or not they saw the harassment happen is usually not going to yield fruitful results. So instead, given the science that shows that trauma victims vividly recall the ordeal they have gone through, there is no reason not to take the victim’s testimony as sufficient evidence to convict – provided it withstands the test of cross-examination.

It is essential that these two elements – delay and lack of independent evidence – be moulded to fit the unique nature of sexual harassment cases. This will allow section 509 of the Pakistan Penal Code to achieve its true purpose in providing justice to victims.

In the next article in this series I will discuss the Protection against Harassment of Women at the Workplace Act, 2010.

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It took far too long but in 2010 Parliament passed the ‘Protection against Harassment of Women at the Workplace Act, 2010.’ Initially operating solely as a federal law, it was subsequently adopted as a provincial enactment through legislation such as the ‘Punjab Protection against Harassment of Women at the Workplace (Amendment) Act, 2012.’ The amending statutes did not change the substance of the 2010 Act, but merely amended it to bring it within the provincial domain as required by the 18th amendment.

The main components of the 2010 Act allow for any man or woman who has been sexually harassed at the workplace to file a complaint through one of two routes. The first is to file a complaint before an inquiry committee at their workplace. The 2010 Act makes it mandatory for every ‘organisation’ to constitute an inquiry committee which may hold investigations into allegations of sexual harassment. For the purposes of the 2010 Act, an organisation is defined as:

““organisation” means a Federal or Provincial Government Ministry, Division or department, a corporation or any autonomous or semi-autonomous body, Educational Institutes, Medical facilities established or controlled by the Federal or Provincial Government or District Government or registered civil society associations or privately managed a commercial or an industrial establishment or institution, a company as defined in the Companies Ordinance, 1984 (XLVII of 1984) and includes any other registered private sector organisation or institution.”

Therefore, if a place of work falls within this definition it is mandatory upon it to constitute an inquiry committee under the law.

The 2010 Act empowers the committee to penalise whoever is accused of sexual harassment. The penalties may be minor or major. Minor penalties include censure and withholding promotion, while major penalties include dismissal from service and a fine which may be used to compensate the victim.

The second route through which a complaint of sexual harassment can be filed is to approach the relevant Ombudsperson appointed by the federal or provincial government. The Ombudsperson serves as an independent adjudicator over the dispute and has the same penalty powers as the inquiry committee. The choice of forum is entirely up to the complainant.

This gives an overview of the basic framework of the 2010 Act. However, there are certain requirements that must be met before a complaint of sexual harassment can be filed under this legislation. First, the sexual harassment must occur at a ‘workplace.’ The Act defines the ‘workplace’ in broad terms as the following:

““workplace” means the place of work or the premises where an organisation or employer operates and includes building, factory, open area or a larger geographical area where the activities of the organisation or of employer are carried out and includes any situation that is linked to official work or official activity outside the office.”

Second, the complainant and the accused must either be ‘employees’ at the same workplace, or, be in a ‘employer-employee’ relationship. The term ‘employee’ and ‘employer’ are defined as:

““employee” means a regular or contractual employee whether employed on daily, weekly, monthly or hourly basis, and includes an intern or an apprentice.”

““employer” in relation to an organisation, means any person or body of persons whether incorporated or not, who or which employs workers in an organisation under a contract of employment or in any other manner whosoever…”

If these conditions are fulfilled, then, an inquiry committee or Ombudsperson can adjudicate over the claim of sexual harassment under the 2010 Act.

However, there are a few problems with the law as it stands that must be debated and acknowledged.

As I have already explained, whether or not a victim of harassment is an ‘employee’ is a key issue that will determine whether a claim can be adjudicated under the 2010 Act. Now, a salaried individual working in a company is obviously a black and white case of an ‘employee.’ But what about, as in Meesha Shafi’s case, people who are hired on an informal basis to provide certain services? Usually referred to as ‘independent contractors.’ Or better yet, people who have no contracts at all – like domestic workers?

With regards to ‘independent contractors’ the Lahore High Court has held in Meesha’s case that they do not fall within the definition of an ‘employee.’ This formed the basis upon which the court dismissed Meesha’s claim. It did not give any finding on the merits of her claim against Ali Zafar. An appeal against this judgment has been filed before the Supreme Court, but until that appeal is heard, the Lahore High Court’s decision is where the law stands.

While I will not comment on the technical legal aspects of the Lahore High Court judgment until the Supreme Court gives its verdict, however, if the Lahore High Court judgment is accepted as correct, then, this means that the 2010 Act excludes independent contractors from its protection. Even though they are just as vulnerable to being harassed – or in a position to be harassed – because of their work.

Consider an example. Suppose someone hires an interior decorator for their home. The service provider comes to the client’s house and is sexually harassed there. For the interior decorator, the client’s house is their workplace. They had to go there because of the nature of their work. To exclude such people from the ambit of the 2010 Act makes its scope of operation very narrow. It would operate only in the case of salaried employees working in corporations or government offices. This would mean that the 2010 Act is out of touch with how many people earn a livelihood in the modern age.

Furthermore, if the Lahore High Court judgment is correct it would mean that domestic workers cannot avail the protection of the 2010 Act. There is no arguing that other people’s homes are the ‘workplace’ for these individuals, yet, the Lahore High Court has interpreted the term ‘employer’ to mean only an employer in a corporate organisation, or, a government office. The home is completely excluded under this interpretation.

It seems that the legislative intent behind the 2010 Act was different than what the Lahore High Court concluded. In cases of doubt, where the words of a legislation are not clear, it is sometimes essential to look at what those who were drafting the law intended. The Parliamentary debates during the passage of the 2010 Act have a passage by member of the National Assembly, Ishrat Ashraf, where she talks specifically about how rural women working in farms are sexually harassed and must be protected by the 2010 Act. Furthermore, Dr Atiya Inayatullah speaks about how more than 90% of domestic workers are sexually abused in Pakistan, and therefore, the law must protect them.

The legislative debates seem to display a different intent behind the 2010 Act then the one adopted by the Lahore High Court. Parliament did not seem keen to exclude independent contractors and domestic workers from the ambit of the law. Either the Supreme Court of Pakistan must weigh these factors, or, the law must be amended to clarify its scope.