Over eight years have passed since the enactment of Protection against Harassment of Women at Workplace Act, 2010, but the Khyber Pakhtunkhwa government is yet to appoint a provincial ombudsperson under this law.
While harassment-related issues have frequently been reported in the province, the provincial government has turned a blind eye to the commitment made by it before the Peshawar High Court last year wherein it had assured the court to appoint provincial ombudsperson within two months. However, about a year has passed since then, but the government has yet not implemented the order.
Recently, the issue of harassment related to female polio vaccination workers surfaced and it was also reported in local press. A polio worker has also released audio-recording of her conversation with an area in-charge and alleged that he had been harassing female workers, but so far no action was taken against him.
The prevalent social norms, lack of awareness about the law and its non-implementation by the departments in public and private sectors are believed to be reasons for silence on part of aggrieved persons. On Sept 19, 2017, a Peshawar High Court bench had disposed of a writ petition filed against non-appointment of the provincial ombudsperson with the direction to the government to make this appointment within two months.
An NGO, Da Hawwa Lur (daughter of the eve), had filed a writ petition seeking the court’s orders for the provincial government to immediately make the said appointment. The high court bench comprising Justice Qaiser Rashid Khan and Justice Mohammad Ghazanfar had expressed its displeasure over the non-appointment. An additional advocate general (AAG) Mohiuddin Humayun had assured the bench that the appointment process was in progress.
“Where the Act was passed way back in 2010 and where Ombudsmen have been appointed in other provinces, we wonder why Khyber Pakhtunkhwa is lagging behind,” the bench had observed.
“The learned AAG is directed to pass on the directions of this court to the concerned authorities to expedite the matter. However, the process shall not take more than two months,” the bench had ordered. Under section 7 of the Act, the respective federal and provincial governments should appoint an ombudsman at the federal and provincial levels.
Initially, under the same section a person shall be qualified to be appointed as an ombudsman who has been a judge of high court or qualified to be appointed as a judge of a high court. Subsequently, the parliament passed the Federal Ombudsmen Institutional Reforms Act, 2013, in March 2013, through which amendments were made in different laws related to the offices of federal ombudsman, federal tax ombudsman, and anti-harassment ombudsmen.
Through section 21 of the 2013 Act, an amendment was made in the qualification given for appointment of federal or provincial ombudsman under the anti-harassment law. An additional qualification was given along with the initial one, which provides that a woman, with an experience of at least 10 years in the matters related to protection of women against harassment shall also be eligible to be appointed by the President as ombudsperson under the Protection against Harassment of Women at the Workplace Act, 2010.
Interestingly, instead of implementing the court’s order the KP government enacted the KP Protection against Harassment of Women at the Workplace (Amendment) Act, 2018 through which the qualification required for the provincial ombudsperson was amended. The said amendment law was passed by the KP Assembly on Feb 19 and received the assent of governor on Feb 28. The qualification given in said amendment Act is: “A person who is or has been or is qualified to be a judge of a High Court or a retired civil servant of known integrity having law background with at least 15 years’ service; and not more than 65 years and not less than 45 years of age.”
These amendments also provide that the provincial ombudsperson shall be appointed by the government from a panel of candidates recommended by a search and scrutiny committee.
The ombudsperson shall be eligible to all perks and privileges admissible to BPS-21 officer of the government and shall hold the office for three years.
Advocate Saifullah Muhib Kakakhel, who had represented the petitioner before the high court last year, said that by not appointing the provincial ombudsperson in the specified time the government had been committing contempt of court.
He pointed out that there were several provisions of the law which had been violated in the public and private sector organisations due to which this law had not been implemented in the province.
After enactment of the 2010 Act it is now binding that each organisation shall constitute an inquiry committee within 30 days of the enactment of the law to enquire into complaints. The said committee shall consist of three members of whom at least one shall be a woman, one from senior management and one shall be a senior representative of the employees or a senior employee where there is no CBA.
“Harassment” in the law is defined 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 attitude, 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. Non-compliance of some of the provisions of the law amounts to penal offence for which the concerned official could be fined.
The schedule of the Act provides a “Code of conduct for protection against harassment of women at workplace,” which includes guidelines for behaviour of all employees, including management.
Section 11 of the Act makes it binding on the employer to ensure implementation of this law and to incorporate the Code of Conduct as a part of their management policy and to form inquiry committee and designate a competent authority.
An employer who fails to comply with this provision is liable to be fined up to Rs100,000. Any employee of an organisation may file a petition before the district court against an employer for violating this provision.
An expert on the issue said that several government departments had yet to notify the inquiry committees under the law due to which a “victim” could not decide who to approach in such a case.
Published in Dawn, September 24th, 2018