The deeply problematic act

March 30, 2014

The deeply problematic act

March 9, 2014 was a day that went largely unnoticed in Pakistan. This was not the case four years ago, in the year 2010, when the then PPP-led Federal Government celebrated with much fanfare the enactment of the Protection Against Sexual Harassment of Women at the Workplace Act, 2010 (Act of 2010). At the time of its enactment, the coming into force of this law was linked to women’s rights. The 8th of March (International Women’s Day) had served as a useful and convenient occasion to herald the dawn of this law.

Governments love passing new legislation, especially in a country where lack of legislation, rightly or wrongly, is blamed for many social evils. This allows governments, indeed all legislators, to wash their hands of implementing real change since the rhetoric of laws outlives their efficacy or enforcement. However, the jury is still out on the extent of social change that laws can bring about. It is a bit like the chicken and egg debate: what comes first? Legal reform or social change?

The intent behind the Act of 2010 was and remains noble. However, the law ignores many social as well as legal realities. It is no coincidence that despite the fact that this law is more than four years old, sexual harassment of women at workplace is an issue that has received little attention in real terms.

This is not meant to suggest that no good came of this law. We managed to convert whispers into a public conversation.

But cultures do not change by passing laws -- such change involves a long, often inconvenient and painful, engagement. There are those who point to the fact that laws in British India tackled the custom of satti. This example is often cited to make the point that legal reform can precede change in social attitudes and can even force social attitudes to change. But that is arguably one example and in any case relates to overtly public acts of harm involving loss of life. Moreover satti was recognised among communities. They did not always seek to hide it.

All of this makes the example of satti distinct from the issue of sexual harassment.

Those engaging in sexual harassment recognise that it is wrong and in an overwhelming number of cases they seek to hide their behaviour from the public domain -- particularly at the modern day workplace. The Act of 2010 also recognises that instances of sexual harassment usually occur when the victim and the perpetrator are alone.

What have we done to change our workplaces?

Sure, multi-national companies (MNCs) might have published glossy versions of their policies against sexual harassment but developing a culture requires something more. The government for its own part has failed to carry out any media campaign that encourages awareness of the law or assures victims that they shall be protected.

One question that one often hears is: "is it not discriminatory to protect only women and not men?"

In theory, yes, it is discriminatory but such (positive) discrimination is allowed by the Constitution of 1973 since it allows the state to positively discriminate in favour of women and children. Courts have upheld positive discrimination in favour of other marginalised groups as well.

But the most important facet of the Act of 2010 often gets ignored: it sets up legal forums that, arguably, are unconstitutional.

The law makes it compulsory for each private employer to set up a standing Inquiry Committee to investigate complaints of sexual harassment. The Inquiry Committee is also vested with the power to record evidence and to propose major or minor penalties to the ‘Competent Authority’. The ‘Competent Authority’ is to be designated by each private employer.

Sounds good in theory? No, deeply problematic, is the answer.

The Inquiry Committee exercises what we lawyers call ‘judicial power’, that is, it functions like a court of law in that it acts as a trier of fact and law in deciding an issue between two parties. It also records evidence and determines questions of guilt or innocence. Such ‘judicial power’ can only be exercised by the State of Pakistan under the Constitution of 1973. The people manning the Inquiry Committee will not be trained judges with security of tenure as judicial officers usually are. They will be in many instances private individuals acting like a court with no backing for such a mechanism in the Constitution.

The PM, Nawaz Sharif, would remember the words ‘judicial power’ well. In 1998, the Honorable Supreme Court in the Mehram Ali case struck down as unconstitutional multiple provisions of the Anti-Terrorism Act, 1997 (ATA 1997) that Nawaz’s government at the time had piloted through parliament. One of the reasons that the apex court struck down provisions of ATA 1997 was that the executive had appointed officers to various anti-terrorism courts and these officers were exercising judicial powers, that is, recording evidence and determining questions of guilt or innocence.

This was done without taking into account the supervisory jurisdiction of the Honorable High Courts under Articles 202 and 203 of the Constitution.

The Supreme Court noted that the Constitution only provides for specific tribunals (tax, service and election related cases) and apart from this only regular courts could exercise judicial power of the State. Well, the Federal Shariat Court too I suppose.

The current version of the Act of 2010 relating to sexual harassment vests judicial power of the state in the hands of private employers and the relevant Inquiry Committee. It is only a matter of time before the constitutionality of this legislation is imperiled before one of the Honorable High Courts or the Honorable Supreme Court.

The PPP government passed the law and many activists celebrated the achievement. But the fact remains that this was the easiest way out for the PPP -- it passed a law that it must have known will eventually be struck down as unconstitutional, at least in part.

And once that happens then whichever party is in power can blame the courts.

Now one can take issue with whether the Mehram Ali case went too far in restricting the scope of tribunals and the exercise of judicial power by such tribunals. But the fact is that it is capable of being read very broadly. If and when the constitutionality of the Act of 2010 is questioned, the activists and the liberal intelligentsia must not blame the courts. The only people responsible will be the legislators.

A law on the books never guarantees social change or empowerment of vulnerable groups such as women. Laws contain words that require life to be breathed into them through practice. It is worse if the lawmakers deliberately write down a law that is deeply problematic and is merely waiting to be thrown out.

Meanwhile, the women at the workplace in Pakistan continue to lack the protection that they deserve.

The deeply problematic act