ISLAMABAD: The Attorney General office is seriously considering moving a petition to seek review of the recent Supreme Court judgment relating to the Protection Against Harassment of Women at the Workplace Act, 2010 (PAHWWA).
There is a general realisation among the senior law officers that the Supreme Court through its verdict has given a retrogressive meaning of the 2010 law when being the top court, after which there is no legal remedy available, the apex court should have taken a progressive interpretation of the act, said Attorney General for Pakistan (AGP) Khalid Jawed Khan while talking to Dawn.
The AGP is particularly disturbed over the observation in which the judgment stated that: “Since the PAHWWA itself limits the protection it offers to the harassment having sexual orientation, the Supreme Court is shackled to interpret in line with its express charging clause (h) of Section 2 of the act. Any other interpretation advanced by this court to enlarge the scope of the charging section will violate the rights guaranteed under Article 12 of the Constitution.
“Section 2(h) of the act 2010, which was adopted during the PPP government defines the meaning of harassment as any unwelcome sexual advance, request for sexual favours or other verbal or written communication or physical conduct of a sexual nature or sexually demeaning attitudes, causing interference with work performance or creating an intimidating, hostile or offensive work environment or the attempt to punish the complainant for refusal to comply to such a request or is made a condition for employment.
No assistance was sought by issuing notices to the AGP and the four provincial advocates general
“The judgment had explained that any misdemeanour, behaviour or conduct unbecoming of an employee or employer at the workplace towards a fellow employee or employer in any organisation is not actionable under the existing act, unless such behaviour or conduct is shown to be inherently demonstrable of its sexual nature. Any other demeaning attitude, behaviour or conduct which may amount to harassment in the generic sense of the word as it is ordinarily understood howsoever grave and devastating it may be on the victim, is not made actionable within the contemplation of actionable definition of harassment under section 2(h) of the act.”
But AGP believed that the Supreme Court – the top court of the country – was completely independent and free to interpret any law in a manner that should instill a sense of protection among the large number of working women who faced different kind of pressures and demeaning attitude during their everyday life.
The Supreme Court should have interpreted the law that should have advanced the cause of welfare towards the women who contribute 51 percent of the total population of the country, the AGP stated though conceding that harassment was also suffered even by men at the workplace but the womenfolk in a society like ours were at the most disadvantageous place.
Does any superior court judge was sensitive towards this aspect while deciding the case at hand, the AGP wondered, adding that the answer was a plain No.
He was also bitter over the fact that no assistance was sought by issuing notices to the AGP and the four provincial advocates general during the entire hearing of the case both at the levels of the high court as well as the Supreme Court.
When amicus curiae are appointed usually by the courts in every important cases both by the apex or the high courts, the Supreme Court should have appointed some senior lawyer to get proper assistance in such a sensitive case, the decision of which has been received with quite discomfort and when eyebrows have been raised over the judgment.
The judgment is loud and clear in pointing towards the fact that the petitioner before the Supreme Court – a woman in this case – is proceeded against departmentally and charge-sheeted, show-caused and consequently terminated from the service after she lodged the complaint before the Federal Ombudsman for the Protection against Harassment of Women at Workplace alleging harassment at the workplace, the AGP said. Is she being punished for initiating a complaint before the ombudsman, he wondered, adding that this aspect should have been a deciding factor in the judgment.
Whenever the petition is filed, there is a possibility that an application may also be moved by the AG Office before the Supreme Court with a request to the Chief Justice of Pakistan that a larger bench be constituted to hear the review petition and revisit the judgment in the sexual harassment case, he said.
Published in Dawn, July 8th, 2021