PROTECTION AGAINST SEXUAL
HARASSMENT – A BURNING ISSUE
By:
SABEEN ARIF KHAN
Sexual
harassment, a commonly misunderstood term. To create awareness regarding sexual harassment is the need of the
time because we as a nation is going through a critical phase which desperately
needs an environment in which we can ensure higher productivity and this is
possible only if we succeed in providing a better quality of life at work
place. In a survey conducted by the Daily Times in August 2010, female govt.
& private sector employees complained about the abusive and harassing
behavior of their male colleagues as well as senior officials which shows that
the subject needs a serious consideration and effort to create an environment
which is harassment free. Because with the lack of awareness about the issue
many people and specially females do not get as much support as she would enjoy
in such situations. Apart from that it is very much important to make ourselves
clear about this concept for many other reasons like first of all ignorance of
law is no excuse. It means that even when you may not be aware of the fact that
what you are doing is the sexual harassment, you will be held liable for that.
Secondly, along with the awareness of your duties, it is also of vital
importance that you should be aware of your rights so that no one can take
advantage of you. Thirdly, in case you are a victim of sexual harassment and
interested in getting accurate and speedy justice, you must have accurate
knowledge of it and lastly as a responsible member of the society, this is our
duty to eliminate/abolish such kind of behavior by giving knowledge to others
and create an environment in which we can ensure higher productivity and this
is possible only if we succeed in providing a better quality of life at work
place which is possible only when first of all we are clear on the subject. To
achieve these goals though govt. has played its role by passing the Protection Against
Harassment of Women at Workplace Act, 2010[1] and making an amendment in the criminal law[2] but it was not of any worth as most of the people of
this country are still unaware of this development and resultantly its
implementation has become a big challenge. This is evident from the existing
state of affairs in our country as we can see that most of the organizations
didn’t display code of conduct despite the fact that it is compulsory for them
to display under the Harassment Act, 2010 and resultantly many people are still
going through this harassment process. Statistics indicate that in 2010 around
7000 cases regarding gender based violence were reported across the country
while in 2011 the number had risen to approximately 8,500.[3]
Though it is the
most widespread problem of the world but for
Act further
requires all public and private organizations to adopt an internal code of
conduct and complain and appeal mechanism aimed at establishing a safe working
environment. The definition clearly indicates that though the word “sex” has
been used in the definition but it’s not an obscene material rather a very
critical issue of the current era which is dealt by
Pakistani govt.
is taking care of the issue in two ways, as is mentioned earlier, one is by
passing “Protection against Harassment of women at workplace Act, 2010” which
is a comprehensive legislation which not only defines the term but also
provides for the creation of an independent forum and prescribes the procedure
and the punishment for it and secondly by making an amendment in sec 509 of
Pakistan Penal code, 1860 which defines sexual harassment in more detail and
also enhanced the punishment of the harasser.
These laws
adhere to the principles of Islam which ensures human dignity. The basis for
the current legislation and the amendment is the principle of equal opportunity
for men and women, their right to earn a livelihood without fear of
discrimination and dignity of human being as is protected by the Constitution of
our country. Constitution of Pakistan,1973 ensured human dignity, equality
among citizens and right to work in its numerous Articles like Art 14 which
states that the dignity of man, subject to law, the privacy of home, shall be
inviolable , then Art 25 ensures that there shall be no discrimination on the
basis of sex, again Art 27 lays down that no citizen otherwise qualified for
the appointment in the service of Pakistan shall be discriminated against in
respect of any such appointment on the ground of sex, Art 34 states that steps
shall be taken to ensure full participation of women in all spheres of national
life, Art 37(e) make provision for securing just and humane conditions of work,
ensuring that children and women are not employed in vocations unsuited to
their age or sex and for maternity benefits for women in employment, Art 38(a)
securing the well being of the people irrespective of sex…,etc and if we look
at the definition provided by sec 509 it would be crystal clear that an attempt
had been made to achieve all the above mentioned objectives. Sec
509 PPC states that, Whosoever:
I. Intending
to insult the modesty of any woman, utters any words, makes any sound or
exhibits any object, intending that such word or sound shall be heard or that
such gesture or object shall be seen by such woman or intrudes upon the privacy
of such woman
II. Conducts
sexual advances or demands sexual favours or uses
written or 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 work place 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 behavior or conducts such behavior with the intention of
unreasonably interfering with an individual’s work performance or creating an
intimidating, hostile or offensive working environment.
Shall
be punished with imprisonment which may extend to 3 years or with fine up to 5
hundred thousand rupees or with both.
The amendment of
sec 509 does not only covers every unwelcome sexual behavior under the ambit of
sexual harassment but also enhanced the punishment of harasser which was 1 year
previously but now it is extended up to 3 years and a fine up to 5, 00,000 or
both. So in this way an attempt is made to create fear in the heart of a wrongdoer.
Though it is a good attempt to deal with the
issues but unfortunately it’s not that fruit full as people are not aware of it
and are ignorant towards their own rights. They have closed their eyes towards the
fact that awareness is important not only for the awareness of their own rights
but also for the reason so that one may not become a harasser due to his/her
ignorance. Apart from that one can also become a source of information for
others. Because of these reasons internationally, number of efforts had been
made and are still going on to make the working environment , a harassment free
place like in May 2002, the European Union Council amended a 1976 Council
Directive on the equal treatment of men and women in employment to prohibit
sexual harassment at workplace. Similarly, The United Nations General
Recommendation 19 to the convention on the “Elimination of all forms of
discrimination against women” dealing the subject by defining the term sexual
harassment of women. In U.S.A Barnes vs. Train,[4] was the first case in which this subject was in
question though they did not used the term by itself in that case which was
used later in Meritor Savings Bank vs. Vinson[5] for the first time. Similarly India is also working
on the subject and passed a sexual harassment law from both of its houses
(upper & lower) and now waiting for the assent of the President to become a
law but their courts are already working on the issue since Vishaka’s
judgment[6] in which sexual harassment was made illegal for the
first time.
Another
misconception is that it’s something which relates to females only, which is a
total misconception. This misconception is due to the name of the Protection
against Harassment of women at workplace Act, 2010 law is misleading as it
doesn’t just provide protection to the women as is understood by its name, but
protects every human being who is being harassed including male, female and
even third gender and manifests itself in different ways like it could be
physical, verbal, visual, written, etc. So both victim and the harasser could
be of any sex even of the same sex and people of any age or race. Data
collected directly from the office of Federal Ombudsman revealed that out of 54
cases 13 applications were filed by men. This fact reveals that the name of the
Act[8][9] needs an immediate change to remove the
misunderstanding and so the word “Women” should be replaced by the word
“Person”. Whenever the person in authority asks the victim in any manner a
sexual favour or make an unwelcome sexual advance or
make it a criteria for her/his wage increase, promotion or even job itself,
which disturbs the victim and make it next to impossible for her/him to perform
his/her duties comfortably and in case of refusal try to punish her/him by
creating a hostile working environment for the victim, this law will come into
operation to rescue the victim and protects the victim. The examples of it are
filthy jokes, making personal comments, blocking a way, unnecessary physical
contact, giving unwanted personal gifts etc. This kind of behaviour
can affect the victim in a very negative manner and could make her life
miserable resulting even into suicidal thoughts or even its attempts so it is
of vital importance in these circumstances that people must have knowledge of
the law so they could save themselves from any kind of unwanted advances.
At this stage one must also clear one’s self
regarding the scope of both the laws which is bit different. Where
at one hand the Harassment Act, 2010 covers work places, the amendment in PPC
of sec 509 on the other hand covers the area outside work place like roads,
shopping centers, parks, etc.
At this stage it
won’t be out of context to make a comparison between the two laws (Haraasment Act, 2010 & PPC SEC 509) so to make the
topic more clear in the minds of the readers of this
article. If we look at the Haraasment Act, 2010, it
covers only the wrongs done at the work places whereas Sec 509 covers the area
outside workplace. Then forum for justice in case of Haraasment
Act, 2010 is Inquiry Committee or Federal/Provincial Ombudsman whereas an FIR
will be lodged against the harasser under sec 509. Major or minor penalties
will be imposed on the harasser under Haraasment Act,
2010 but harasser under sec 509 shall be punished with imprisonment up to 3
years or with fine up to 5 hundred thousand rupees or with both. This law
covers only work places but does not provide protection on roads, markets and
even at homes. For that purpose we have Sec 509 of Pakistan Penal code which
not only defines harassment on those places but also provide punishment. According to which the harasser could be imprisoned for a maximum
period of or fined up to or both. The right forum for justice in these
issues is.
Here by working
environment we means not only offices of Federal, Provincial departments,
Corporations, autonomous and semi autonomous bodies, NGO’S, Privately managed
organizations but also all the educational institutions and harasser does not
necessarily means your boss or senior officer, teacher principal but it could
be your co worker, student and even a stranger who is calling you or trying to
harass you while you are in the office. In this regard one must keep in mind
that if one is at home or in market, park, public transport, private gathering
or road and harassed by a relative, person of acquaintance or even a stranger,
Pakistan Penal code will come for the rescue and the victim needs to file an
FIR in the relevant Police Station for the purpose but if he or she is being
harassed at workplace, Harassment Act,2010 will come to rescue him/her and then
they have two options either to go for formal means or opt informal means to
save themselves by looking at the intensity of the matter. This statement
itself indicates that there are two types of harassment. In
For this purpose all the cases at work place will be
entertained by an independent forum which is established by the Harassment Act,
2010 i.e an office of an Ombudsman or by an Inquiry committee
which needs to be established in every office and consists of 3 members out of
which at least one member should be a woman and if the victim is not satisfied
with the decision of inquiry committee she/he can make an appeal in the office
of an ombudsman. Again on being unsatisfied with the decision of Ombudsman one
can make appeal even to the President or Governor (as the case may be). The
time limit for making appeals is 30 days. All the cases occurred outside
workplaces will be entertained under PPC, 1860 and victim could make a
complaint to the police at the relevant Police Station for the purpose.
But one can go for
those formal means if he/she is a victim of higher degree harassment otherwise
informal means could be applied which includes steps like one can make it clear
to the harasser that he/she don’t like his/her advances, inform one’s colleague
or friend about the harasser, inform one’s supervisor or inquiry committee
informally, etc. In such a case the matter would be resolved through mediation
between the parties on strictly confidential basis.
If the victim’s
case falls under the higher degree harassment then he/she will go for the
formal means. In which case a formal written application, either in urdu or English will be submitted to the inquiry committee
or in the office of Registrar (as the case may be) either personally or through
her representative or even by post or email and contains all the statement of
facts, all necessary details like exact date, time, etc, evidence in support, list
of witnesses, affidavit by the complainant, addresses of the parties and it
should also be signed or contains thumb impression. Committee/ Ombudsman will
decide the case within 30 days and impose major or minor penalties accordingly.
If the victim is not satisfied with the decision of Inquiry committee/ Ombudsman
he/she can file an appeal against the decision to the
Ombudsman/Governor/President within 30 days. This right of appeal is available
to both the parties i.e
harasser & victim. Time limit for the decision of the appeal is again 30
days. According to the nature of the wrong done to the victim, major or minor
penalties will be imposed on the harasser which ranges from mild reprimands to
firing the accused. It is also important to note that every public and private
organization is bound to display the copy of the code of conduct at conspicuous
place and constitute enquiry committees to probe into the incidents of
harassment.
In order to
cover the deficiencies and lacunas in the Harassment Bill, 2010 a meeting was
held in April 2013 in the office of Federal Ombudsman Secretariat in which
different aments were proposed like an amendment in the definition of sexual
harassment proposes the addition of an improper conduct by an employee that is
directed at and offensive to employee or to feel that she or he is working in a
hostile environment, change in name of the Act as it is not only for the
protection of women but also covers males and the third gender, etc
Now let’s have a look at the implementation of
these laws in
Ignorance on the
part of the society could be cured only by holding seminars, guest lectures, by
organizing media (both print & electronic) campaigns and writings. .Apart
from the govt, it is also the duty of the society to
bring awareness and change our own views regarding this issue. Every individual
has to play a significant role in this regard because it is difficult for the govt to implement the laws without the support and
cooperation of citizens. A mass education drive can break the shell of
ignorance .It is also very imp for the community to gain complete knowledge
about its rights as what our society lacks is not the rights but the
consciousness of their rights. Again necessary follow up system is also the
need of the day because many times the victim faced even more problems after
he/she filed a complaint against the tormentor. To tackle the issue, victim
could file another compliant with the office of the ombudsman. Office of the
Federal Ombudsman has also launched a “Complaint Management Information System
(CMIS)” through which victim would be able to launch his/her complaint from his
own computer and he/she need not to go to the office of the Ombudsman in person
for the launch of the complaint.
There is an
urgent need to establish an office of the Provincial Ombudsman in the provinces
of Balochistan and KPK as
Only after these
steps we can hope that one day we would be able to control if not completely
eliminate it. And this is the only mode through which we can achieve the
objectives of this law i.e to create a safe working
environment and ensure higher productivity and a better quality of life at
work.
[1]. Hereinafter referred to
as Harassment Act, 2010.
[2]. Sec 509 -
[3]. The Express Tribune, Friday 19 October,
2012.
[4]. 1974.
[5]. 1986.
[6]. Vishaka vs. State of
[7]. The News, August 30, 2013.
[8]. 2010
[9]. Federal Ombudsman Secretariat Protection
against Harassment of Women at workplace.