The parliament has amended the 2010 Protection Against Harassment of Women at the Workplace Act. The Act’s scope has been widened and aligns well with Article 25 of the constitution that guarantees equality to all citizens and prohibits discrimination. The amendments also reaffirm Pakistan’s international commitments under the Convention on the Elimination of Discrimination Against Women (CEDAW) and some of the commitments under the European Union’s Generalised Scheme of Preferences Plus scheme that requires beneficiary countries to adhere to 27 treaties, including labour and human rights related treaties, in return for subsidised trade with the EU. Pakistan is among the seven countries benefiting from the GSP Plus scheme. This law will help enhance Pakistan’s efforts towards Sustainable Development Goal 5 (gender equality) and Goal 8 (decent work and economic growth).

The amendments make gender discrimination illegal. Harassment now includes “discrimination on the basis of gender, which may or may not be sexual in nature, but which may embody discriminatory and prejudicial mindset or notion, resulting in discriminatory behaviour on basis of gender.” The pronunciation of Article 25 of the Constitution was much needed as it is widely-accepted that gender discrimination in places of work is rife.

However, prohibition of gender discrimination under this Act has also muddied the water with some confusion. How office committees, composed of lay people in an office organisation, and Ombudspersons’ offices, the primary forums to approach under this Act, in addition to judges, will interpret gender discrimination under the law on harassment, should be an important consideration. Remember, the initial intention of the legislature was prohibiting sexual harassment at the workplace; and both the Islamabad High Court and the Supreme Court havenoted this. I understand that many viewed this as a limitation; hence, the amendments. Yet, it can be argued that the narrow scope of the Act allowed for many successes under the law as many women were able to get justice. Can the widening of the scope complicate the implementation of a law originally meant for a specific purpose?

It is well understood that gender discrimination can (and does) take place without harassment. Harassment is not integral to gender discrimination; the two can take place together but also separately. The title of the Act has certain requirements - harassment, particularly, sexual harassment, and workplace being the key word(s) here. It is sexual harassment at the workplace that is examined by Ombudspersons and judges and in equal measure being argued for, or against, by counsel for the parties involved. Though gender discrimination is a standalone provision in the amended Act (it does not rely on having to establish harassment), it does not sit well with the remaining provisions of the Act, or with the Act’s title.

Some very important and welcome amendments to the law have been to widen the definition of employee to include contractual and part-time workers, domestic workers and voluntary workers and of workplace to allow for informal settings.

Some have argued that because of the existence of Article 25 as a constitutional provision, a separate law on gender discrimination is unnecessary. Case law shows that discrimination based on gender has been successfully argued in the country’s courts using Article 25 alone. As far back as 2009, in Khaki v Rawalpindi, SCP, the Supreme Court noted that discrimination based on gender (in this case against the transgender community) contravened Article 25 of the constitution.

Personally, I believe that this argument is not entirely persuasive as the constitution is a broad framework; a specific law making gender discrimination illegal is absolutely essential. Yet, I am not convinced that the Protection of Women from Harassment at the Workplace is the law that should house a provision as essential and wide-ranging as prohibiting gender discrimination. Addressing gender discrimination is so integral to society's functioning and such a fundamental violation of a constitutional right that it should not be limited to the jurisdiction of office committees and special federal and provincial workplace Ombudspersons.

Here was an opportunity to create a separate law that deals with gender discrimination. It could encompass both workplace discrimination and discrimination in the use of services, particularly, public services, where an employee and employer relationship does not exist. Alternatively, if the intention is to limit the prohibitionof gender discrimination to the workplace, employment and labour laws could be amended to make gender discrimination illegal. This would allow ordinary courts (not just Ombudspersons’ offices) to adjudicate and set precedence on the matter. The new provision prohibiting gender discrimination is well-meaning; unfortunately, it is not sufficiently ambitious. By limiting it to this Act, we have arguably settled for less than required.

Some very important and welcome amendments to the law have been to widen the definition of employee to include contractual and part-time workers, domestic workers and voluntary workers; and of workplace to allow for informal settings to be included. Also, the definition of harassment now includes cyber harassment, which considers many women who have previously been left seeking redressal for online harassment in cases where both on- and off-line harassment occurs and is linked. The amendments have now also made the legislation more inclusive with the replacement of the wordswoman or man with person, allowing the transgender community access to the legislation.

It is essential for Pakistan’s economic growth and social wellbeingthat more women join the workforce. A holistic approach to progress in this direction should include the strengthening of laws and establishing of new ones that allow women redress, protection and emancipation. Simultaneously, there is a need for a robust awareness campaign regarding the law among women and their employers to ensure that employers create effective anti-harassment committees. Spreading awareness of the law, holding public offices to account to ensure implementation and seeking regular updates from Ombudspersons’ offices is within the ambit of the Women’s Parliamentary Caucuses. After all, a law is only good if it is effectively enforced.

The writer is a lawyer and consultant. Twitter: @BenazirJatoi