ISLAMABAD: The Supreme Court on Tuesday sought written arguments explaining how the parties interpret harassment at workplace, observing that the court may hear the matter in detail if it was convinced that the definition needed further elaboration.
Presided over by Justice Yahya Afridi, a three-judge Supreme Court bench consisting of Justice Mohammad Ali Mazhar and Justice Ayesha A. Malik asked Attorney General for Pakistan (AGP) Shehzad Ata Elahi and petitioner Nadia Naz to furnish detailed arguments on the maintainability of their review petitions.
The court had taken up a set of petitions moved by the AGP office, seeking review of the July 6, 2021 judgement in which the apex court had held that the Protection Against Harassment of Women at the Workplace Act (PAHWWA) 2010was a cosmetic legislation that blinkered in its application.
“When the PAHWWA is examined as a whole, it does not live up to expectation as titled and preamble of the act suggests,” Justice Mushir Alam had held in the judgement.
The review petition before the Supreme was filed through Deputy Attorney General Syed Nayab Hussain Gardezi to defend PAHWWA. The petition said it was an important welfare legislation enacted by parliament for the protection of working women in the country pursuant to the constitutional mandate as enshrined in Article 14, 25(2) and 34 of the constitution.
“The July 6 judgement is aimed at curbing gender-based harassment at the workplace in all its manifestation; therefore, it should be recalled by the court,” argued the petition.
Likewise, Nadia Naz also filed the review petition arguing that she had been removed from the job.
Ms Naz was appointed on a temporary basis as Resource Person (camera department) of Pakistan Television (PTV) on Sept 4, 2007. But she was proceeded against departmentally and terminated from service on May 13, 2017 during the pendency of her complaint before the Federal Ombudsman for Protection against Harassment of Women at the Workplace.
In his judgement, Justice Alam had observed that though anyone may be subject to sexual harassment, in a culture and society like Pakistan, women were the distressing majority of victims. Harassment in any society or organisation is a testament to regressive behaviour that creates an intimidating, hostile, degrading, humiliating and offensive environment which has a devastating effect on any society or organisation by adversely affecting its overall performance and development.
On Tuesday, the AGP argued before the court that the purpose of the review petition was aimed at seeking further interpretation of PAHWWA since the definition offered by the court will have a bearing on pending cases at different forums.
It is not necessary that the court may also be in agreement with the view taken by the government relating to the harassment, observed Justice Yahya Afridi.
The AGP office had stated that it was seeking a review only to the extent of the legal questions and not concerned with the particular facts, adding the judgement had adopted an unduly restrictive interpretation of ‘harassment’ as defined in Section 2(h) of PAHWWA and would significantly curtail the scope and may even frustrate the objective behind the enactment of the act.
It is apparent that the pure language of the statute is not restricted to harassment of purely sexual orientation and nature, as has been held in the judgement, the review petition said, highlighting a clear distinction between the identity of the victim triggered by her gender and the ingredients of harassment.
The review petition added that a female employee was subjected to demeaning attitude at the workplace owning to her gender and it amounted to harassment within the definition given in Section 2(h).
Moreover, the judgement was based on misconception and confined and limited its application to sexualised forms of conducts. This is incorrect appreciation of the language as well as the object and purpose of the legislation, the petition contended.
Published in Dawn, March 15th, 2023
