The insufficiency of Pakistan’s harassment law
Earlier this month, the Lahore High Court dismissed, on jurisdictional grounds, Pakistani singer and actor Meesha Shafi’s claim of harassment against singer and actor Ali Zafar. This case, contested between two leading members of Pakistan’s music industry, not only in court but at electronic and social media forums, came to be viewed as a flag bearer of the MeToo movement in Pakistan. Many women and (more recently) men in Pakistan have thereafter come out to share stories of sexual abuse and violence.
To treat the High Court’s decision as amounting to rejection of the MeToo movement or of the merits of Meesha’s claim would be incorrect. The decision instead spells out the insufficiency of Pakistani law in protecting women against harassment.
In a detailed judgment, Justice Shahid Karim correctly articulated the purpose of the applicable law - the Punjab Protection of Women from Harassment at the Workplace Act, 2012 - as the provision of a safe working environment to “permanent or contractual female employees” of an organisation from harassment committed by an “employee” or an “employer” of the organization. The Act lays down civil remedies for claims of harassment at the workplace.
Why are arenas beyond the workplace not regulated to secure against harassment in Pakistan? Other jurisdictions around the world have promulgated harassment laws with broader reach, which are not restricted with respect to where the harassment occurred or at whom it was targeted.
Sahar Zareen Bandial
Steering clear from discussing the merits of the harassment claim, Justice Shahid Karim held that Meesha Shafi fell outside the purview of protection of the 2012 Act because she did not qualify as an employee. Meesha Shafi, the judgment reads, contracted with JS Events as an independent service provider for the purpose of performance at a particular event, and did not at any point come under the “administrative and supervisory” control of JS Events. The fact that one clause of the contract unequivocally stipulated against the creation of a relationship of employment between Shafi and JS Events was significant for the judge. Of equal significance was the fact that Ali Zafar was neither an employee of JS Events nor did he occupy the position of an employer in the organization.
Meesha Shafi, the judge ruled could not as a consequence invoke the protection of the 2012 Act, which only permits an “employee” to submit a complaint of harassment against an “accused” who under the Act, must be either an employee or an employer.
Could the Court have read the definition of an employee more broadly to cover independent service providers, like Meesha Shafi and Ali Zafar, who work under the administrative control of an organization, albeit for a specific purpose and short duration? Could the Court have accorded less significance to said clause of the Contract? Arguably, yes. Yet concerned with the unmanageable consequences that organizations may face on account of inclusion of non-employee “strangers” in the scope of the Act, the Court found it just to exclude from the protection, a woman who had rendered services to an employer under a contract similar to a contract of employment.
It may not be entirely fair to begrudge the judge for his interpretation of the 2012 Act. The Act permits such interpretation.
“The law,” as Justice Shahid Karim pointed out, “does not speak to every woman but only to a woman employee who happens to be harassed at a workplace.”
While the objective of this Act is “to create a safe working environment for women, which is free of harassment, abuse and intimidation with a view toward fulfilment of their right to work with dignity,” it arguably leaves unprotected women who do not strictly fall within the category of an “employee” employed in the formal sector.
Domestic workers, students studying in educational organizations, service providers of the likes of Meesha Shafi and clients who may enter a workplace to avail services have no remedy under the workplace harassment Act. Such selective legal protection is arbitrary and discriminatory, particularly since the criminal justice system (given its cumbersome procedures) may not provide an effective alternative remedy.
One may also question, why are arenas beyond the workplace not regulated to secure against harassment in Pakistan? Other jurisdictions around the world have promulgated harassment laws with broader reach, which are not restricted with respect to where the harassment occurred or at whom it was targeted.
The MeToo movement has made manifest - even to its detractors - that sexual harassment is pervasive, and any policy or law directed at it must be indiscriminate in its reach and effect. The law of harassment in Pakistan must be reformed to ensure equal and holistic protection to all categories of women (and men).
- Sahar Zareen Bandial is an Advocate of the High Courts and a member of the Adjunct Faculty at the Shaikh Ahmad Hassan School of Law, LUMs. She has a keen interest in gender issues and has worked extensively in the area of legislative drafting.
