ISLAMABAD: The Islamabad High Court (IHC) has explained the anti-harassment law and quashed proceedings pending before the Ombudsperson for Protection against Harassment of Women at Workplace, saying that mere meanings in dictionaries cannot be used to explain sexual harassment.
The court set aside the complaints filed against three individuals — a grade 22 officer, Mohammad Younis Dagha, head of the Overseas Pakistanis Foundation (OPF) schools, and an official of a private online cab service.
The decisions in these cases, which were reserved by the court last month, were issued here on Monday.
These complaints were filed before the Ombudsperson under the Protection against Harassment of Women at Workplace Act, 2010 and were pending in the Ombudsperson Secretariat.
The court ruled that harassment as defined in the above-mentioned Act cannot be generalised as the legislature introduced it for certain behaviour and gestures. Mere administrative actions could not be treated on a par with sexual harassment.
It may be mentioned that in the past some people in public sector organisations, against whom their subordinates complained of sexual harassment, were removed from service on the basis of this Act.
While explaining offence, court quashes proceedings pending before ombudsperson for protection against harassment of women at workplace
Athar Farooq Buttar, former director news of Pakistan Television, has recently been reinstated by the IHC. Mr Buttar was removed from office after a complaint was registered against him under this Act.
Giving brief facts and background of these three cases, IHC Chief Justice Athar Minallah observed that “the reasoning recorded by the learned Ombudsman regarding the scope of jurisdiction vested in the said statutory public office explicitly shows that the provisions of the Act of 2010 have been grossly misinterpreted and misconstrued”.
He ruled that “in all the cases in hand, the acts, attitudes, conduct or gestures were not of a sexual nature and, therefore, did not fall within the jurisdiction of the learned Ombudsman. The complaints in all these cases could not have been entertained by the learned Ombudsman because the alleged acts, conduct or attitudes were not sexual in nature.”
As per the court order, “when the provisions of the Act of 2010 are read as a whole, it unambiguously shows that the public office of the Ombudsperson has been established with specific object and purpose i.e. to protect women against harassment”.
The court observed that “the expression harassment has been defined in section 2(h) of the Act of 2010…it explicitly refers to various phrases such as “unwelcome sexual advice”, “request for sexual favours”, “physical conduct of a sexual nature”, “sexually demeaning attitudes”.
Chief Justice Minallah noted that “it is therefore, obvious that a gesture made towards another person with the intention of gaining sexual gratification would fall within the definition of ‘harassment’ in the context of the Act of 2010. For physical conduct to attract the consequences described in the Act of 2010 it has to be of a sexual nature.”
The court order added that, “the legislature through unambiguous language, has defined the expression ‘harassment’ and its exhaustive meaning has been confined to the acts, advances, requests, attitudes, conduct etc which are of sexual nature”.
Distinguishing the sexual harassment and scope of jurisdiction, the court order said, “Depending on the facts and circumstances, harassment for the purposes of the Act of 2010 can be of different forms, verbal non-verbal or physical. The most crucial ingredient for determining jurisdiction of Ombudsman is that the conduct, attitude or act etc complained of must be of sexual nature and the other factors mentioned in section 2(h) are also in existence.”
According to the court order, “the legislature has obviously not intended to extend the scope of the Act of 2010 to the expression ‘harassment’ as it is understood in its ordinary sense explained in the dictionaries”.
The court held that “the learned Ombudsman has not properly appreciated the language of section 2(h) of the Act of 2010, wherein the expression ‘harassment’ has been defined”.
The court advised the Ombudsman to entertain the complaints strictly in accordance with the above mentioned section of the Act.
Published in Dawn, July 2nd, 2019