Harassment and defamation

A culture of harassment is embedded in the foundations of societies worldwide. All over the world, women are faced with workplace harassment, sexual harassment, discrimination on the basis of gender and threats or use of violence when they refuse to accept harassment culture silently.

This harassment culture is so deeply embedded that, more often than not, we accept daily incidences of the same. It is only when we are quite literally pushed against a wall that some of us finally decide to speak.

So it is rather strange that the major concern in Pakistan vis-a-vis the issue of harassment revolves around false prosecutions and baseless allegations being instigated by women. In a country where women and girls comprise the bulk of the population, the harassment culture can be seen in the reality of the absence of women from public spaces.

It was reported that Pakistan was ranked 151 out of 153 countries on the Global Gender Gap Index Report 2020, issued by the World Economic Forum. The country's position in 2006 was at 112, reflecting how far we have fallen since. Therefore, when one hears the concerns of certain powerful men in this country, one is left befuddled: in a country where women are not even treated as human beings, how and why would we be able and/or willing to jeopardize the little we do have (or have struggled for all our lives) to level false allegations? Is the cost worth it for any woman? Never. The cost is character assassination, reliving your trauma and being at the receiving end of this society’s wrath.

That is not to say that no false allegations are ever made but to highlight that the likelihood of false allegations is slim in these cases, unlike the high percentage of false allegations in blasphemy cases, where one has a lot to gain by making a false allegation (property, political clout, etc).

Harassment is difficult for women to prove. We are harassed on a daily basis in almost all public spaces, whether on public transport; going to the market; or approaching government offices for routine work. We let the bulk of harassment we face on a daily basis slide because if we were to register cases each time we were harassed, we would have no time to do anything else. In the majority of these cases of everyday harassment, there is little to no evidence (apart from oral testimony) that we can provide to corroborate our assertions.

There is, thus, clearly a need to acknowledge the nature of harassment, and this requires a shift in our understanding of it as a legal concept as well. Let us take the example of the standard of proof developed by the inter-American Court of Human Rights in cases of enforced disappearances. Recognizing the difficulties for victims and their families in these cases, particularly with respect to proving facts that require cooperation of state authorities, the inter-American Court developed a two-step approach to move away from the traditional burden of proof standard. This reasoning was adopted specifically because the traditional standard of burden of proof would negatively impact a victim’s case within the context of an enforced disappearance.

Similarly, traditional standards of proof in cases of harassment, which are already extremely difficult to prove for women, must be done away and standards must be developed based on the experiences of women, recognizing the difficulties they face in coming forward and proving cases of this nature.

When it comes to harassment cases and celebrities or people who are famous for one reason or the other, things become even more complicated in Pakistan. It is difficult to believe the worst about someone you admire – especially when it comes to artists or celebrities. The separation of the art from the artist, or the value of such distinction, has been a subject of debate globally as well. In Pakistan, though, what we have seen is accused celebrities being rewarded for the accusations against them.

Let's face it: innocent people do not claim that a woman has leveled sexual harassment allegations against them to seek asylum abroad. A military dictator made the same claim when Mukhtaran Mai was gang-raped. Anyone else following the same line of argument quite evidently raises questions with respect to their ‘innocence’.

And yet we see the privileged accused crying defamation and loss of business – even though they remain more popular than ever. To be an alleged harasser in Pakistan is to roam freely, without any prospect of accountability because of the fundamental structure of this society, which is based on the idea that women should remain silent. The only time this society cares about a woman who has been a victim of violence is when she is being buried six feet under because when she is dead, she can no longer speak on or fight against the injustice.

Under General Comment No. 34, on Article 19 of the International Covenant on Civil and Political Rights (ICCPR), the Human Rights Committee has clearly stated: “States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty”. It is high time Pakistan decriminalizes defamation, which, till repealed, will continue to function as a tool to silence victims of harassment and sexual assault.

The writer is founding partner of Mazari-Hazir Advocates & Legal Consultants.

Email: imaanmazarihazir@ gmail.com