It is unreasonable to deprive students from the harassment law’s purview

Published: March 2, 2017
SHARES
Email

An alleged sexual harassment victim tried to self immolate herself on Friday outside the Nankana Saddar police station in protest at police failure to arrest the suspects. PHOTO: AP

In 2010, after an effective campaign led by the Alliance against Sexual Harassment (AASHA), Parliament enacted ‘The Protection against Harassment of Women at the Workplace’ (PHWW). Little did people know that this statute would change the way we see, and often condone sexual harassment in our society.

From a handful of cases filed in the initial years, the number of claims began to rise. Mostly women, but even some men, complained to in-house workplace inquiry committees set up under the law. These inquiry committees comprise three members chosen from the workplace itself. Their decision could result in major or minor penalties against the harasser, if he was found guilty, it could include reprimands, fines, loss of a promotion or even dismissal.

Whoever is dissatisfied by the decision of the inquiry committee is allowed to appeal to an appointed provincial ombudsperson, and finally to the president or the governor. Students filed complaints against teachers and staff members, and employees against bosses and colleagues who had allegedly harassed them.

Law influences dialogue. Committees issued decisions and the media reported at least the high profile cases, for example, the Lahore University of Management Sciences (LUMS) case and the Pakistan Television (PTV) case. In the last seven years, there was a palpable evolution in our understanding of what constitutes sexual harassment and why it is harmful. People realised that unwelcome touching, remarks and innuendos of a sexual nature, making promotions contingent upon sexual favours were not only inappropriate and offensive, but also illegal.

Even lesser known forms of sexual harassment entered public discussion and consciousness. These include stalking, invasion of personal space, blackmailing, humiliation in public, making sexually explicit material visible to others, excessive monitoring and blaming, giving belittling jobs that were not part of the job duties, or contributing to vicious gossip. The wheels of justice were somewhat turning and for once, there was a powerful rebuttal to the perennial complaint against the justice system of good laws but poor implementation.

We are witnessing inquiry committees at work, the provincial ombudsperson was appointed and handling appeals and reviewing the decision of the committees. Overall, this was an accomplishment for feminists and women’s rights activists. It is a useful law, being vigorously implemented, enhancing the level of debate of one form of gender-based violence or discrimination and making women and girls (and men) safer in the workplace through a redress mechanism.

But no law is perfect. And the essence of a democratic society is to engage the public in constant improvement of the laws. Lawmaker and member of the National Assembly, Asiya Nasir, had thus proposed reforms to the 2010 law in order to address a few potential gaps. Specifically, she aimed for the law to explicitly cover students and domestic workers who suffer harassment.

However, the present law had already been interpreted to include students’ complaints against teachers and staff. Under the act, the ‘accused’ is an employee or employer of an organisation against whom a complaint has been made. A complainant includes a man or a woman. An employer who sets up the inquiry committee and the process includes, ‘any person or body of persons whether incorporated or not, who or which employs workers in the establishment under a contract of employment’. Hence, on a plain reading of the statute, one could infer that it extends to complaints filed by students against any employee of an educational institution.

A federal ombudsperson in a decision (2013 MLD 225) confirmed that universities are covered in the law. Based on an argument presented by the accused, in this case, that the PHWW is inapplicable to educational institutions and that only an employee of an institution could file a complaint against her employer for harassing her. The ombudsperson responded that a university is an educational institution and an organisation within the meaning of Section 2(l) of the Act.

This is why the conclusion made by the National Assembly Standing Committee on Human Rights, on Nasir’s proposal, that educational institutes do not fall under the ambit of the act is questionable. The Ministry of Law and Justice reached the same perplexing conclusion, as did President Mamnoon Hussain on an appeal filed by a student of Quaid-e-Azam University.

Are these folk suggesting that Parliament intended to provide redress to only those complainants who are employed by an employer? A more logical interpretation would be that the act strives to make workplaces safe for all. So while a workplace inquiry committee is rightfully empowered to hear complaints against its workforce (employers and employees), as opposed to a person on the street, the complainant could and should be anyone who suffers such harassment at the workplace. That could include a student, a co-worker, an invitee, a contractor, a client or anyone else even if the statute does not explicitly mention this.

Section 509 of the Pakistan Penal Code (PPC) is an alternative criminal remedy for those who suffer sexual harassment and is available to all parties including workers, students, and other citizens and is not limited to the workplace. PHWW, on the other hand, provides a civil remedy that is accessible, easier, safer, and possibly faster. It is unreasonable to deprive students from the law’s purview as they are a group vulnerable because of their youth and status vis-a-vis teachers, and they merit special protection.

A person who suffers sexual harassment can approach an in-house workplace inquiry committee. No lawyer is necessary. The criminal process, in contrast, is mired in delays and obstacles for the unaccustomed. If students had to lodge criminal complaints against their harassers under PPC 509, they would be daunted by the process and cost, and would perhaps opt to stay silent. And silence against sexual violence is the cancer we should seek to eradicate.

Khawar Mumtaz, head of the National Commission on the Status of Women (NCSW), rightfully opposed overhauling the law for a new one. That would be throwing the baby out with the bath water. Small amendments would just as easily do the job while retaining the law which has been quite successful in holding harassers to account and exposing the hypocrisy and misogyny in our society. Some minor but useful amendments could be to:

1. Explicitly include mechanisms for those who do not work in traditional workplaces like agricultural, domestic, and home based workers through district, union council, or village level committees.

2. Allow for better provisions to replace the members of the inquiry committee who demonstrate bias against victims, appoint committee members based on their experience with human rights and gender, and limit their tenure.

3. Allow a second appeal to a special branch of the high court (thus include the judiciary) and eliminate provisions permitting second appeals to the president or governor. Their precious time and authority should be limited to handling life pardons and other such matters. Moreover, a comprehensive review of how the system has worked should precede any reform.

The National Assembly committee’s response seems like an indirect way to contract the influence of this important legislation and is disappointing. Debate on reforms should be directed towards the expansion of rights, not the other way round.

Abira Ashfaq

Abira Ashfaq

A law teacher in Karachi who works with human rights organisations. She tweets @oil_is_opium. (twitter.com/oil_is_opium)

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • Hasan

    Pakistan still needs to go a long long way in realizing it is NOT OK to see women as sexual objects & sexual harassment of women is a crime. Often the whistle blower is the victim!
    Great article by the way & yes students need to feel safe too from predatory instructors in schools, colleges & universities.Recommend