The Need for a Reformed and Holistic Anti-harassment Framework in Pakistan

Semra Islam (21090067)
Hammad Hussain Shah (21090040)

The crime of gender-based harassment is quite rampant in Pakistan. It is an unfortunate state of affairs that being harassed has become a rite of passage for the women in this country. For a long time, such experiences were only recounted in closed spaces, but this culture of silence and misplaced shame came to an abrupt halt in the form of the Me Too movement, when many women came forward with their experiences of harassment. The opening of these floodgates reflected the massive scale of the problem. However, the overarching structure governing harassment crimes in Pakistan is quite lacking in its scope and approach.

Currently, the anti-harassment legal framework constitutes the almost dead provision of the Pakistan Penal Code (“PPC”), Section 509, with a very limited jurisprudence, and the series of workplace related anti-harassment legislations in the country. This piece discusses the Punjab Protection of Women Against Harassment at the Workplace Act of 2010 (“Act of 2010”) as a representative of its federal and provincial equivalents.

Section 509 of the PPC lays down punishment for any individual found guilty of insulting the modesty of a woman, or causing sexual harassment. This provision and the related jurisprudence reflect the patriarchal underpinnings of our societal setup. While the intentions of the lawmakers with regards to protection of women are admirable, their approach lends support to certain problematic ideas. The criterion of ‘insulting the modesty of a woman’ is concerning because of its consequences in the form of victim blaming, as women are then expected to act in a socially ordained modest manner to earn the protection of law. The ramifications of this outlook were seen in one case where the court distinguished between the modesty of an ‘innocent girl’ and a ‘prostitute’ (PLD 1979 Lahore 659). Such remarks by the judiciary reveal the need for a reframing of this provision, and sensitization training of both the judiciary and the police on a broader policy level, as authorities usually do not consider instances of harassment to be serious enough to warrant registration of a case. Moreover, the higher threshold of burden of proof, which is difficult to fulfill as sexual harassment usually takes place behind closed doors, and lengthy trials in criminal cases have made it more difficult for women to pursue this legal recourse.

The Act of 2010 also restricts its scope to incidents of sexual harassment only, despite the usage of the general word ‘harassment’ in its title and preamble. This limitation is problematic in light of the imbalanced gender and power dynamics of our society, which lead to women facing harassment on a multitude of grounds such as their ethnicity, financial standing, education-level, etc. This results in the creation of a troubling environment for women in their workplaces, and unfortunately, this Act is not equipped to deal with it, as seen in a matter before the Federal Ombudsman where it was held that the words "Jahil" and "Badtameez Aurat" did not qualify as harassment within the purview of the Act (2013 MLD 198).  

The scope of the Act becomes further limited in light of the interpretation by the Lahore High Court in the Meesha Shafi case where the Court held that her case against Mr. Ali Zafar was not tenable under the Act because their professional relationship did not fit within the bounds of a traditional employment contract. This decision highlights the need for an amendment in the Act because currently, many working women are excluded from its scope, including domestic workers, bonded labourers, workshop labourers, or those women who do not have a proper employment contract. 

It is also imperative to note here that the legal limitations only come subsequent to the culture of stigmatisation and silence, which is the first factor that discourages women from pursuing harassment cases. Those women who persevere and do pursue their cases face disdain from many segments of the society. This dilemma was highlighted by Retired Justice Yasmin Abbasey, a former Ombudsperson under the federal equivalent of the Act, when she stated that every day, we might have around 5000 cases of harassment at workplaces in need of investigation, but barely one or two cases are registered, investigated, and prosecuted.

The aforementioned issues, and the lacunae in the anti-harassment framework of Pakistan make it imperative for the State to adopt a more holistic legal and policy structure. The amended framework should make it easier for all women to pursue legal avenues against harassment, regardless of where it takes place and in what capacity. An overarching policy agenda should be adopted for the purpose of creating awareness, and removing stigmatisation around this issue in all sectors of the society. The problematic phrasing of section 509, the apathetic attitude of the authorities, the higher burden of proof, and the lengthy criminal trials make it difficult for women to seek relief under this particular provision. On the other hand, the Act of 2010 which provides for civil remedies and a lower threshold for burden of proof has a very limited scope both in terms of its purview and application. If these legal and societal dilemmas are resolved in a holistic manner, harassment crimes in Pakistan can be curbed to a large extent.