The Supreme Court of Pakistan in Nadia Naz vs The President of the Islamic Republic of Pakistan and others (PLD 2021 SC 784) observed that the term “harassment” is restricted to conduct which is sexual in nature and all other acts of harassment fall beyond such definition of actionable harassment, thereby, observing that such an element of ‘sexual in nature’ is mandatory to trigger harassment under Section 2 (h) of the Protection against Harassment of Women at the Workplace Act, 2010 (the “2010 Act”). The Court interpreted that the definition of harassment under the 2010 Act is only limited to actions or conduct having sexual intent or overture and does not include gender-based harassment.
The Federal Constitutional Court of Pakistan (the “FCC”) has, recently, in the case of “Usman Shahid vs Nadia Sarwar” endorsed the view taken by the Supreme Court in 2021 Nadia Naz judgment. However, the FCC’s judgment is based on misapplication of the term “harassment” used under Section 2 (h) of the 2010 Act and its interpretation by the Supreme Court in its prior judgments.
The FCC, while restricting the definition of harassment under Section 2 (h) of the 2010 Act and endorsing the view taken in 2021 Nadia Naz, has failed to take into account the legislative intent enumerated in the parliamentary debates of 21.01.2010 and 25.02.2010, and the preamble of the 2010 Act, which reads as “An Act to make provisions for the protection against harassment of women at the workplace”. The preamble further recognizes the fundamental right of dignity of persons enshrined under Article 14 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”). The afore-mentioned parliamentary debates, and the title of the 2010 Act including the preamble when read with the definition of harassment under Section 2 (h) of the 2010 Act clearly depict that the purpose of the said Act has always been to protect women from all sorts of harassment at workplace including gender-based harassment and discrimination and is not limited to only sexual form of harassment.
Following the passage of the Twenty-Seventh Amendment to the Constitution, the Federal Constitutional Court is vested with the power to revisit and correct its recent judgment by considering the Supreme Court’s review of Nadia Naz and the overlooked principles governing sexual and gender-based harassment.
The FCC despite taking cognizance, in paragraph 9 of the judgment, fails to appreciate that the ‘Code of Conduct’ given in the Schedule identifies three ingredients of harassment: abuse of authority, a hostile environment, and retaliation. None of these is inherently sexual. The Court recites this and then ignores it. The Code was issued under sections 2 (c) and 11 of the 2010 Act which forms integral part of its statutory scheme. Thereby, such an interpretation and ignorance by the Court renders the Code’s own ingredients inoperative and redundant.
Another blatant mistake committed by the FCC, while rendering its judgment, was the ignorance of the “2022 Amendments to the 2010 Act” which extended the scope of the definition of ‘harassment’ to gender-based discrimination. The Court also ignored the pertinent precedent by the Supreme Court in Nadia Naz review judgment titled as “Nadia Naz and another vs The President of the Islamic Republic of Pakistan and others (PLD 2023 SC 588)”. In review of the Nadia Naz, the 2021 judgment was set aside by the Supreme Court on the pertinent observation that the meaning of the word “sexual” has not been defined under the 2010 Act and, therefore, its literal meaning can be taken from dictionary which reads as “relating to physical attraction between individuals, and relating to gender – Oxford English Dictionary”.
The word “sexually” in Section 2 (h) is used to mean demeaning attitudes on the basis of gender. The Supreme Court further observed that the 2021 judgment failed to consider the second meaning of ‘sexual’ relating to gender, thereby, holding that the earlier judgment erroneously restricted and narrowed the definition of the term ‘harassment’ prescribed under the 2010 Act. The interpretations of the afore-mentioned terms by the Supreme Court in the review of Nadia Naz were clearly aligned with the intent and purpose of the 2010 Act, the fact which the FCC has failed to elaborately interpret or consider.
The FCC departs from views taken by the subsequent judgments of the Supreme Court which followed the review of Nadia Naz, without overruling or properly distinguishing or discussing them and by evasively stating “with due respect to the view of Supreme Court we do not agree with this observation well within our powers under Article 189 of the Constitution on the basis of the very definition of sexual harassment under Section 2 (h)”. The ignorance of the review of Nadia Naz and the correct scheme of the 2010 Act is reflected in the unsubstantiated and barely reasoned observations by the FCC in the judgment. The FCC’s judgment results in the repetition of the extracts from the 2021 Nadia Naz judgment, without proper elaboration of its own observations on the said definition under Section 2 (h) of the 2010 Act.
However, after the passage of the Twenty-Seventh Amendment to the Constitution, only the FCC is vested with the power to revisit and correct its recent judgment by taking into account the ratio of the review of Nadia Naz case and all other ignored/overlooked aspects involved in the development of ‘harassment at workplace jurisprudence’ including but not limited to the interpretation of the term “sexual” and “gender-based harassment”.