Protection of Women Against Violence – New bill passed by the Punjab Assembly

On 25 February 2016, the Provincial Assembly of Punjab passed the Punjab Protection of Women Against Violence Bill, 2015 (the “Protection Bill”).

Q. What is it?

The Protection Bill aims to make a “special provision for the protection of women”, “to protect women against violence including domestic violence, to establish a protection system for effective service delivery to women victims and to create an enabling environment to encourage and facilitate women freely to play their desired role in the society, and to provide for ancillary matters”.

Q. What is domestic violence?

Section 2 (h) defines “domestic violence” as:

the violence committed by the defendant with whom the aggrieved is living or has lived in a house when they are related to each other by consanguinity, marriage or adoption;

Section 2 (r) defines “violence” as:

any offence committed against a woman including abetment of an offence, domestic violence, emotional, psychological and verbal abuse, economic abuse, stalking or a cybercrime;

Q. What are the other key definitions of the Protection Bill?

The following definitions, in Section 2, are key:

(a) “aggrieved person” means a woman who has been subjected to violence by a defendant;

(e) “dependent child” means a child who is below the age of twelve years of age and includes any adopted, step or foster child;

(j) “house” includes a place where the aggrieved person lives in a domestic relationship irrespective of right to ownership or possession of the aggrieved person, defendant or joint family;

Q. What are the plans for implementation?

For implementation, Section 3 provides that the Government shall, amongst others:

(a) institute (establish) a universal toll free dial-in-number for the aggrieved persons;

(b) establish Protection Centres and shelter homes under a phased programme;

(c) appoint necessary staff at a Protection Centre for mediation and reconciliation between the parties, rescue, medical examination, medical and psychological treatment and legal help of the aggrieved persons and proper investigation of offences committed against aggrieved persons;

(d) raise awareness about the issues involving women and the requirements of protection and relief of the aggrieved persons.

Q. What steps should be taken to seek protection and what happens then?

1. The aggrieved person, or any other person authorized by the aggrieved, or a Women Protection Officer, appointed under Section 14 of the Protection Bill, may submit a complaint for obtaining a protection, residence or monetary order for the aggrieved.

2. The relevant court shall be (1) where the aggrieved resides or carries on business; (2) where the defendant resides and carries on business; (3) where the aggrieved and the defendant last resided together.

3. The court shall then start proceedings not more than seven (7) days of the date of receipt of the complaint by the court.

4. The defendant shall be notified to show cause (appear in court) within seven (7) days. If a defendant fails to respond within the specific time, the court shall, subject to another notice to the defendant, assume that the defendant has no plausible defense and proceed to pass such order as the court deems fit.

Q. How will the court protect the victim.

1. Protective Order: If the court is satisfied that any violence has been committed, or is likely to be committed, the court may pass a protection order in favour of the aggrieved person and direct the defendant to, inter alia, not communicate with the victim, stay away from the victim, stay at a particular distance from the victim, wear an ankle or wrist GPS tracker to track the movement of the defendant at all hours, surrender any weapons, refrain from entering the place of employment of the victim, refrain from causing or aiding or abetting any act of violence; and/or refrain from committing such acts as may be specified in the protection order.

2. Residence Order: In the event of domestic violence, the court may pass a residence order directing that, inter alia, the victim shall not be evicted from the house, the victim has the right to stay in the house, the defendant shall not sell or transfer the house to any person other than the victim, the victim may be relocated to a shelter home (established under Section 13 of the Protection Bill), and/or the victim be relocated to some alternative accommodation.

3. Monetary Order: The court may also pass a monetary order ordering the defendant to pay monetary relief to meet the expenses incurred and losses suffered by the defendant which may include, inter alia, loss of earning, medical expense, damages for destruction of property, and/or maintenance of the victim and her dependent children.

Q. Where does the aggrieved person go during proceedings?

Under Section 5 of the Protection Bill, the victim shall not be evicted from the house without her consent.

Q. What are some of the shortfalls of the Protection Bill?

Some shortfalls are:

  1. The offender, it appears, can only be a person who is known to the victim by consanguinity, marriage, or adoption and does not cover such relations that the victim may have to face on a day to day but do not fall within this category, such as relatives-in-law.
  2. The legislation only provides for domestic violence against women; whereas, men may also be victims of domestic violence.
  3. The stringent timelines in the Protection Bill places a heavy burden on the courts without any mechanism of assistance to the courts.
  4. The requirement to consistently monitor protection officers to ensure that such officers do not add to the distress and instead handle issues with care, empathy, and efficiency.
  5. Regular training to the toll-free number representatives to ensure that they are able to provide advice in a quick and efficient manner, respect anonymity, and are available round the clock.
  6. The legislation does not cover dowry and the culpability of giving or receiving the same. The analogous legislation in India, Protection of Women from Domestic Violence Act, 2005, criminalized the offence of giving and receiving dowry.
  7. The need for mechanisms to ensure that this legislation is not misused, for example, verbal abuse is a wide term to report violence. Such mechanisms, though, should not be at the cost of restricting, reserving or downplaying genuine cases of violence against women and should not give too much discretion to the reporting officers.
  8. Custody of children should have been included in the legislation to ensure that the victim is not deprived of full right to her children.
  9. The legislation appears to have the limited scope of civil instead of (the more preferable) criminal law. Criminal sanctions (arrest and imprisonment) require a further offense by the accused respondent (such as violating a protection order issued under this law). This may, however, be a deliberate factor of the legislators to ensure quick and flexible relief for the victim.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and (ex) Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

Whistleblower Protection in Pakistan

A whistleblower is a person who raises concern or awareness about a wrongdoing in their workplace, either state or private. 

In the recent years, with the testimonies of Edward Snowden (an American computer professional, former CIA and US Government employee who copied classified information from the United States National Security Agency (the “NSA”) in 2013 without prior authorization. This information revealed numerous global surveillance progams and brought the issue of privacy, security and surveillance to global discussion), Julian Assange (the founder of Wikileaks that publishes secret information, news leaks, and classified media from anonymous sources), and Bradley Manning (a US army officer who disclosed information to Wikileaks), whistleblowing has become a much discussed topic receiving equal amounts of support and opposition.

Whistleblowing, however, has been practiced for centuries. From the Ramayana, where Vibhishan, younger brother of the King of Lanka, Ravana, informs Ram about the whereabouts of Sita, the consort of Ram, to the Watergate scandal that toppled the presidency of Richard Nixon on the information provided by a secret informant known as Deep Throat (revealed in 2005 as Mark Felt). Whistleblowing has grave consequences for the accused and the accuser. The whistleblower, though seemingly working for the greater good, is oft seen as dangerous and misguided (e.g. why did he have to make the information public, why didn’t he use the correct mechanisms) and forced to live either in hiding, never revealing his identity, or in exile.

In Pakistan, there is no specific legislation on whistleblower protection on a Federal level. Within the provinces, only Khyber Pakhtunkhwa, vide the Khyber Pakhtunkhwa Right to Information Act, 2013 (the “KPK 2013 Act”), provisions for the protection of whistleblowers (Section 30). Section 30 of the KPK 2013 Act provides for protection of whistleblowers as follows:

30. Whistleblowers.—(1) No one may be subject to any legal, administrative or employment related sanction, regardless of any breach of a legal or employment obligation, for releasing information on wrongdoing, or which would disclose a serious threat to health, safety or the environment, as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing or a serious threat to health, safety or the environment.

(2) For purposes of sub-section (1), wrongdoing includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public body.

The other provinces also have similar acts: Punjab has the Right to Information Act, 2013; Balochistan has enacted the Freedom of Information Act, 2005; and Sindh has enacted the Sindh Freedom of Information Act, 2006 (collectively referred to as the “Acts”). However, there is no provision in the Acts which is analogous to Section 30 of the KPK 2013 Act or provides for protection of whistleblowers.

The fate of whistleblowers is, therefore, left to the jurors deciding each case upon its facts. The following factors act as a deterrent against whistleblowing:

  1. Red-tapism; no outcome of the complaint made using the correct procedures, if any, available.
  2. Defences, such as national security, interest of the state, and confidentiality obligations, argued, usually successfully, by the accused.
  3. No procedure for the protection of the identity of the whistleblower.

The Eighteenth Amendment to the Constitution of Pakistan, 1973, with the insertion of Article 19A, allowed citizens the right to have access to information in all matters of public importance. The Eighteenth Amendment was an attempt to bring information “in all matters of public importance” to the public sphere. Public bodies, officials, institutions were now required to record, store and be accountable for the information used and processed by them. Unfortunately, the Eighteenth Amendment was qualified with the proviso “subject to regulation and reasonable restrictions imposed by law” that resulted in curtailing the rights of citizens. The proviso provided an opening for the holders of information to restrict access. The only remedy available to citizens seeking information under Article 19A is challenging any refusal in the courts which include the usual issues with court proceedings, i.e. years of litigation, costs, waste of time, etc.

The text of Article 19A is as follows:

19A. Right to information.−Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Rights of Employees: Employed Directly or through an Independent Contractor

28 December 2015

In the recent years, many multinational companies and other companies have “outsourced” the workings of the department of human resources. This means that the company hires and fires employees through a middle-company, the independent contractor. Usually, the remuneration of such “contracted” employees is also agreed and disbursed by the independent contractor. The advantage for doing so for the company is that it does not assume any liability on the part of the employee. Therefore, the company protects itself from the benefits that are usually provided to the employee.

When such cases reach the courts of Pakistan, due to some grievance of the employee, the company regrets any responsibility on the defence that such employee was the employee of the independent contractor and not the company.

The courts of Pakistan deliberate on the status of the employee, whether of the company or the independent contractor, when such employee falls within the definition of “workman” under the dominant labour laws such as the provincially adopted Industrial Relations Ordinance and the Industrial Relations (Standing Orders) Ordinance. However, any employee employed in a supervisory role or such employee that is expected to use creativity, imagination, intellect, skill, know-how or generally apply his mind to the assignments, does not fall within the definition of a workman. Therefore, employees employed in multinationals or such companies would usually fall outside the ambit of the definition of “workman”.

The rights of the employees are then limited to the contractual terms and conditions agreed with either the employer or the independent contractor.

Notably, the concept of “independent contractor“, as defined in the laws of United Kingdom, United States of America, and other (Western) jurisdictions is different from the concept in Pakistan. The jurisprudence in Pakistan has not yet evolved to define independent contractor as separate from an employee, outside the definition of workman. The definition of independent contractor remains limited as, what appears to be, a sub-section of those employees defined as “workman”.

Although the considerations applied when determining the status of a workman as a worker of the company or an independent contractor may be applied to the status of an employee (who is not a workman), but these considerations have, as yet, not been incorporated in the precedents set by the superior courts of Pakistan.

Such considerations include: (1) technical and administrative control over the employee; (2) the decisions re hiring, firing, remuneration and other benefits, the employees; (3) the involvement of the employee in the company; (4) that the employee works in a department that would constitute the principal organ of the company; (5) the machines, equipment, and raw material belong to the company; and the department is controlled by the supervisors of the company; (6) the company benefits from the performance of the employees functions; (7) the employee is integrated into the company; (8) the reality of the contract with the employee.

If the above considerations are present in the relationship between the employer and employee, whether hired directly or through an independent contractor, such employee is deemed to be an employee of the company and not the independent contractor.

For all employees, not protected as “workman” under the labour laws of Pakistan, the contract with the employer is the most important document and establishes the rights of the employee with the employer.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

Gift under Islamic Law

18 December 2015

Under Muhammadan Law, a share in the estate of the testator can be transferred by way of a gift (Section 149).

The three (3) essentials of a gift (“hiba“) are:

(a) there should be a declaration of a gift by the donor;

(b) an acceptance of the gift, express or implied, by or on behalf of the donee; and

(c) delivery of possession of the subject of the gift by the donor to the donee (Section 150).

If these conditions are complied with, the gift is complete.

1. The Donor

Any person, who can execute a contract, can make a gift of his property in Islam.

Like the requirements of contract, the conditions to be able to make a gift are that, the donor should be: (a) at the age of majority, (b) of sound mind; (c) by his own free will and without any pressure or coercion to make the gift; and (d) the absolute owner of the property to be gifted.

The declaration, to make a gift, by the donor must be clear and  unambiguous and reflect the absolute intention of the donor to gift his property.

A gift by a married woman is valid and is subjected to same legal rules as mentioned above.

A gift by an insolvent person is also valid provided that it is bona fide and not with the intention to defraud the creditors.

2. The Donee

The one who can receives or accepts the gift is known as the donee.

Acceptance may be made expressly or implied by conduct. Any person can receive a gift if he or she is in existence at the time of the gift.

A gift to an unborn child is invalid, unless such child is born within six (6) months of the date of gift. In such case the gift to the unborn child will be valid as it was made on the presumption that the child was actually alive and existing in the womb of the mother.

In the case of a minor, possession of the gift is given to the legal guardian of the minor.

A lawful gift can also be made to non-muslim, so long as the Donee is in existence at the time of giving the gift.

The most important component of a gift is “acceptance” and “delivery”. A gift is void is acceptance has not been given by the Donee. A gift is also invalid if the possession of the property has not passed to the Donee so that the Donee reaps the benefit of the property. If the Donor is still enjoying the benefits of the property then such gift is invalid.

A gift that does not take effect immediately is of no effect whatsoever.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

Harassment at the Workplace – What should I do ?!

KNOW YOUR RIGHTS!

In addition to the earlier post re protection of women in Pakistan, many have queried in respect of what should be done if a woman actually experiences harassment in the workplace in Pakistan. With the harassment case at LUMS (read about it at the LUMS official website: http://dailystudent.lums.edu.pk/lds/the-vice-chancellor-dr-sohail-naqvi-on-the-sexual-harassment-case/) becoming widely popular, many are concerned of the steps that are to be taken, in law, if such sexual harassment is experienced.

TL;DR:

1. If you are or anyone you know is facing sexual harassment at your workplace, the law provides for certain rights and procedures.

2. It is the duty of your employer, by law, to have an Inquiry Committee and a Code of Conduct in place to deal with harassment internally. If such bodies/procedures are not in place, the employee is permitted to complain directly to the Ombudsman (appointee of the Government) or file a petition against the employer (for not complying with having the correct fora in place) in a District Court for which the employer, if guilty, will be liable to a fine.

3. Workplaces include universities, schools, colleges, businesses, corporations, public sector companies, private companies, multi-nationals, hospitals, clinics, factories, branches, departments and any place where an employee operates.

There are, practically, no places of work that are exempt from the ambit of the Protection Against Harassment of Women at the Workplace Act, 2010.

4. All proceedings, whether conducted internally or externally, are to be confidential.

5. Strict timelines are imposed by the law and therefore, the authorities are not allowed to delay the dispensing of justice or discourage the complainant.

6. Your organization is responsible to impose and implement penalties on the accused if found guilty. Such penalties range from warnings to fines to temporary and even permanent stoppage of work.

7. Your organization is responsible to compensate for the harm caused to you either by offering therapy, medical treatment or damages.

8. The intention of the law is to have a zero-tolerance policy with respect to harassment of women at work. This is an encouraging trend to facilitate women to continue working without the threats of harassment and abuse.

1. General

(1) Under the Protection Against Harassment of Women at the Workplace Act, 2010 (the “Protection Act”), (sexual) “harassment” is defined in Section 2(h) as:

(h) “harassment” means any unwelcome sexual advance, request for sexual favors or other verbal or written communication or physical conduct of a sexual nature or sexually demeaning attitudes, 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;

Therefore, the Protection Act provides for a restricted meaning of the term “harassment”. It states that “harassment means” and does not state that “harassment included”. The difference between “means” and “includes” in a definition has been noted in many judgments of our superior courts to point out that where “means” is used, the interpretation cannot expand the definition to include that which is not provided after “means”. This raises the concern that the matters such as gender based discrimination, same sex sexual harassment and the many examples of sexual harassment, particularly outside the “workplace”, are not within the ambit of the Protection Act. It may be argued that the Protection Act could encompass the protection of “men” also but the larger intention is to “women” specifically “at the workplace”.

2. Steps to be Taken in the Event of Sexual Harassment

(1) Most institutions are, under the Protection Act, required to formulate a sexual harassment policy to handle the complaints at an internal forum.

(2) Institutions and organizations are required to constitute an Inquiry Committee (Section 3) which consists of three (3) members of whom at least one (1) must be a woman. One (1) member shall be from the senior management, and one (1) member shall represent the employees or be a senior employee.

(3) If such an Inquiry Committee is formulated in your organization, the victim of sexual harassment is required to issue a written complaint to the Inquiry Committee and the Inquiry Committee is required, by law, to, within three (3) days:

(a) communicate to the accused the charges and statement of allegations leveled against him;

(b) require the accused within seven (7) days from the day the charge is communicated to him to submit a written defense and on his failure to do so without reasonable cause, the Inquiry Committee shall proceed ex-parte (without him); and

(c) enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defense of the accused as the Inquiry Committee may consider necessary and each party shall be entitled to cross-examine the witnesses against him.

(4) All proceedings are to be kept confidential.

(5) No hostility can be created for the complainant that may prevent her from freely pursuing the complaint.

(6) The Inquiry Committee is required, thereafter, to submit its findings and recommendations to “the Competent Authority”. The Competent Authority is appointed by the management of the organization and can be any such authoritative figure as the organization deems fit.

(7) The Inquiry Committee shall recommend to the Competent Authority whether, on the basis of its findings, one or more of the following penalties may be imposed:

(i) Minor penalties:

(a) censure;

(b) withholding, for a specific period, promotion or increment;

(c) stoppage, for a specific period, at an efficiency bar in the time-scale, otherwise than for unfitness to cross such bar; and

(d) recovery of the compensation payable to the complainant from pay or any other source of the accused;

 (ii) Major penalties:

 (a) reduction to a lower post or time-scale, or to a lower stage in a time-scale;

(b) compulsory retirement;

(c) removal from service;

(d) dismissal from service; and

(e) Fine. A part of the fine can be used as compensation for the complainant. In case of the owner, the fine shall be payable to the complainant.

The Competent Authority is required to impose the recommended penalty within one (1) weeks of the receipt of the recommendation of the Inquiry Committee.

(8) If the victim has suffered trauma, it is the responsibility of the organization to arrange for psycho-social counselling or medical treatment, or permit additional medical leave. The organization may also offer compensation to the complainant in the event of loss of salary or other damages.

(9) Any party aggrieved with the decision of the Competent Authority may appeal to the Ombudsman, appointed by the Government at a Federal and Provincial Level.

(10) The Ombudsman is either an ex-judge of a high court or qualified to be appointed as a judge of the high court. The powers vested in the Ombudsman are the same as those vested in a Civil Court under the Code of Civil Procedures, 1908.

(11) The Ombudsman shall within three (3) days of receiving the complaint issue a show cause notice to the accused giving the accused five (5) days to respond.

(12) Any party aggrieved by the decision of the Ombudsman, may, within thirty (30) days of the decision, make a representation to the President of Pakistan or the Governor, who may pass such order as he may deem fit.

3. Duty of the Employer

(1) It is the responsibility of the employer to ensure implementation of the Protection Act and incorporate a Code of Conduct for protection against harassment at the workplace as part of their management policy. The Code of Conduct is attached as a Schedule to the Protection Act.

(2) The employer must form the Inquiry Committee and appoint a Competent Authority.

(3) The management must display copies of the Code of Conduct in English and in another language understood by the majority of the employees at all conspicuous places in the organization.

(4) On the failure of the employer to comply accordingly, any employee may file a petition before the District Court which shall, upon being found guilty, make the employer liable to a fine which may extend to one hundred thousand rupees but shall not be less than twenty five thousand rupees.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

In protection of women…

9 March 2015

In the spirit of celebrating International Women’s Day (8 March 2015), here is a short note on the efforts of the authorities to ensure “fair representation” and “protection” of women in the workforce:

TL;DR:

1. At least 33% of the workforce should be women.

2. Female workers should be included in trade unions in proportion to their numerical strength in the organization.

3. Employer’s representation councils should include women in proportion to their numerical strength in the organization.

4. Governing body of the Employees Social Security Institution should include a woman.

5. Minimum Wages Board should include a woman.

6. National Committee on the Rights of the Child should consist of 4 women among the 10 experts employed.

7. All provisions of the law in respect of the protection of harassment of women at the workplace should be employed, implemented and extended to women.

8. Where 25 or more women are employed, the employer(s) shall reserve a suitable daycare room for children under 6 years of the women employed, maintained in accordance with such standards as may be notified.

Detailed Note: The Government of Punjab passed the Punjab Fair Representation of Women Act, 2014 (the “FRWA”) in respect of fair representation of women in the workforce, applicable to the various sectors and companies functioning in the Province.

The discussion, herein, is limited to the applicability of the FRWA to private limited companies.

The Schedule to the FRWA provides a list (the “List”) of sixty six (66) acts and ordinances that are amended by the FRWA to ensure fair representation of women in decision-making bodies and their empowerment at the workplace. The requirement of ensuring that the workforce consists of at least thirty three percent (33%) women, as stated in the Punjab Women Empowerment Package, 2012*, is provided in the following statutes.

None of the following laws are applicable to companies:

(a) The Town Improvement Act, 1922;

(b) The Punjab Government Servants Benevolent Fund Ordinance, 1960;

(c) The Punjab Health Foundation Act, 1992;

(d) The Punjab Information Technology Board Ordinance, 1999;

(e) The Punjab Medical and Health Institutions Act, 2003;

(f) The Punjab Technical Education and Vocational Training Authority Act, 2010; and

(g) The Punjab Holy Quran (Printing and Recording) Act, 2011.

The laws applicable to companies are:

(1) Punjab Industrial Relations Act, 2010

(a) The Punjab Industrial Relations Act, 2010 (the “PIRA”), included in the List, applies to all persons employed in any establishment.

PIRA defines “establishment” to include a company employing workers in Punjab:

(ix) “establishment” means any office, firm, factory, society, undertaking, company, shop, premises or enterprise in the Punjab, which employs workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches, whether situated in the same place or in different places having a common balance sheet and except in section 25 includes a collective bargaining unit, if any, constituted in any establishment or group of establishments; (emphasis added)

“Workman” is defined as follows:

(xxxi) “worker” and “workman” mean a person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied… (emphasis added)

The provisions of PIRA would, thus, be applicable to a company.

(b) The amended Section 6(2) of the PIRA provides:

(2) Without prejudice to the provisions of sub-section (1), a trade union of workmen shall not be entitled to registration under the Act– …. (c) if women are employed as workers in the establishment, group of establishments or industry with which the trade union is connected, unless it has included the female workers in the executive body, not being less than the proportion of their numerical strength in the work force of the establishment, group of establishments or industry. (emphasis added)

Section 6(2) provides that a trade union of workmen shall not be entitled to registration under the PIRA, unless the trade union has included female works in the executive body (management) in proportion to their numerical strength in the work force of the establishment (Section 6(2)(c)).

(c) The amended sub-section (2) to Section 29 (Workers Management Council) provides as follows:

(2)   The employer’s representative in the council shall be from amongst the directors or their nominees or senior executives and the workers’ representatives shall be workmen employed in the same establishment and shall– (a) where there is a collective bargaining agent in the establishment, be nominated by it, or (b) where there is no collective bargaining agent in the establishment, be elected by simple majority at a secret ballot by all workmen employed in the establishment; and (c)   if women are employed as workers in the establishment, be women not less than the proportion of their numerical strength in the work force of the establishment. (emphasis added)

Section 29(2)(c) thus provides that the employer’s representative in the council shall be from amongst the directors/ their nominees/ senior executives and the workers’ representatives shall be workmen employed in the same establishment provided that if women are employed as workers then the proportion of their representation shall be in proportion to their numerical strength in the work force.

(2) The Provincial Employees’ Social Security Ordinance, 1965

The Provincial Employees’ Social Security Ordinance, 1965 is amended to the extent that sub-section (1) of Section 5 (Governing Body) includes that at least one (1) woman should be included in the three (3) persons to represent the employers (Section 5(1)(c)) and secured persons (Section 5(1)(d)) in the governing body of the Employed Social Security Institution.

(3) The Minimum Wages Ordinance, 1961

The Minimum Wages Ordinance, 1961 is amended, by virtue of sub-section (1) to Section 3 (Establishment of Minimum Wages Boards) to include that the three (3) persons to represent the employers (Section 3(1)(c)) and workers of the Province should include at least one (1) woman (Section 3(1)(d)) in the Minimum Wages Board of the Province.

(4) The Employment of Children Act, 1991

The Employment of Children Act, 1991 is amended to include “four (4) women” in the National Committee on the Rights of the Child that shall consist of the Chairman and ten (10) experts, in sub-section (2) of Section 5 (National Committee on the Rights of the Child).

(5) The Protection Against Harassment of Women at Workplace Act, 2010 (the “PAHWWA”)

(a) The PAHWWA provides for the protection of women from harassment at the workplace. Section 2(n) defines workplace to be a place of work where an organization or employer operates.

(b) “Organization” is defined in Section 2(l) to include a company:

(1) “organization” means a Federal or Provincial Government Ministry, Division or department, a corporation or any autonomous or semi-autonomous body, Educational Institutes, Medical facilities established or controlled by the Federal or Provincial Government or District Government or registered civil society associations or privately managed a commercial or an industrial establishment or institution, a company as defined in the Companies Ordinance, 1984 (XLVII of 1984) and includes any other registered private sector organization or institution; (emphasis added)

(6) The Punjab Shops and Establishment (Amendment) Act, 2014

The Punjab Shops and Establishment (Amendment) Act, 2014 (the “Act”) amends the West Pakistan Shops and Establishments Ordinance, 1969 (the “Ordinance”) to the effect that daycare rooms for children should be added to any establishment or company where twenty five (25) or more women are employed:

10-A. Daycare rooms for children.— (1) Where twenty five or more women are employed in an establishment, the employer shall reserve a suitable daycare room for under six years old children of the women. (2) The daycare room shall be established, managed and conformed to such standards, as may be prescribed.

*The Punjab Women Empowerment Package, 2012 is a guide prepared by the Women Development Department, Government of Punjab to intimate the proposed amendments to various laws for the empowerment of women in the workforce. The Punjab Women Empowerment Package, 2012 does not have statutory force and is not a legal document.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

The Resignation of the Prime Minister under the Constitution and Long March Politics

26 August 2014

The following note is a brief memorandum on Article 95 of the, oft-ignored, foundation document of Pakistan, the Constitution of Pakistan, 1973 (the “Constitution”), long march politics and relevant examples from India.

A. The Constitution

(1) Article 95 of the Constitution provides as follows:

  1. Vote of no-confidence against Prime Minister.− (1) A resolution for a vote of no-confidence moved by not less than twenty per centum of the total membership of the National Assembly may be passed against the Prime Minister by the National Assembly.

(2) A resolution referred to in clause (1) shall not be voted upon before the expiration of three days, or later than seven days, from the day on which such resolution is moved in the National Assembly.

(3) A resolution referred to in clause (1) shall not be moved in the National Assembly while the National Assembly is considering demands for grants submitted to it in the Annual Budget Statement.

(4) If the resolution referred to in clause (1) is passed by a majority of the total membership of the National Assembly, the Prime Minister shall cease to hold office.

Article 95 provides the democratic procedure to remove the Prime Minister from his office if he loses confidence of the majority of the members of the National Assembly. In this respect a resolution for a vote of no-confidence is moved by not less than twenty percent (20%) of the total membership of the National Assembly. If the resolution is passed by majority of the total membership of the National Assembly, the Prime Minister immediately relinquished powers.

B. The History of Long Marches to Oust the Government in Pakistan

In Pakistan, “long march politics” has been witnessed during the regimes of elected governments since 1990. These have basically been exercised to bring about regime change, with the help of the army.

(1) 1992 – Benazir Bhutto formed the National Democratic Alliance and marched towards Islamabad from Lahore, against the government of Nawaz Sharif. The long march failed due to the lack of preparation from Bhutto and support from the then Chief of Army Staff (“COAS”), General Asif Nawaz.

(2) 1993 – Bhutto planned another long march against the Sharif Government. This time, more prepared, and with the support of COAS, managed to achieve the abdication of the President and the Prime Minister and elections within ninety (90) days.

(3) 1996 – Sharif became Prime Minister after the dismissal of Bhutto’s Government by President Sardar Farooq Ahmed. Bhutto formed the Grand Democratic Alliance in 1998 and initiated the long march with the support of the then COAS, General Pervez Musharraf and the United States government.

(4) 2009 – Sharif joined the hype of the Lawyers Movement and led a long march from Lahore to Islamabad for the restoration of the judiciary and the resignation of the government. The COAS, General Ashfaq Kayani however, asked him to call off the march before he had reached Islamabad, confirming that his demands had been met.

C. Examples under Indian Jurisprudence:

1. In 1971, after a re-election victory over the opposition, Indira Gandhi became the fourth Prime Minister of India. However, during the next few years she presided over increasing civil unrest brought on by food shortages, inflation, and regional disputes. Moreover, the Socialist Party hailed charges that she had defrauded the 1971 election leading to a national scandal. In 1974, the Allahabad High Court convicted her of a minor election infraction and banned her from politics for six (6) years. She, instead, refused to resign and declared a state of emergency, which allowed her to arrest dissenters, censor the press, restrict various personal freedoms, and rewrite India’s Constitution.

In 1977, long-postponed national elections were held, and Gandhi and her party were voted out of office by a clear majority. The next year, Gandhi’s supporters broke from the Congress Party and formed the Congress (I) Party, with the “I” standing for “Indira.” Later in 1978, she was briefly imprisoned for official corruption. In 1979, divisions with the ruling Janata Party led to the collapse of its government. New elections were held in January 1980, and the Congress (I) Party, with Indira as its head, won back the lower Indian parliament in a stunning reversal of its political fortunes. Gandhi again became prime minister. The legal cases against her were subsequently dismissed.

2. Important points to consider:

(1) Gandhi was voted into power by a clear majority in 1975;

(2) Due to flawed governance and a strong opposition, she was tried and convicted for electoral fraud by the Allahabad High Court and banned from politics for six (6) years;

(3) She refused to resign and instead declared a state of emergency which allowed her to control to affairs of the State and amend the Constitution;

(4) She was eventually voted out in the next elections, in 1977;

(5) With the collapse of the government in 1979, and the elections in 1980, her party won back the lower parliament with Gandhi as its head.

Corruption, including electoral fraud, was alleged in India against a Prime Minister who refused to resign. As no further action was permissible and/or effective under the laws of the country, she was able to refuse resignation, declare a state of emergency and mould the State to her favour. She was eventually voted out of office in 1977.

3. On 5 April 2011, Anna Hazare began his hunger strike at Jantar Mantar in Delhi as a reaction to the rejection by Prime Minister Manmohan Singh of his request for the formation of a joint committee comprising government and civil society representatives. Hazare had wanted the committee to draft an anti-corruption bill containing stronger punishments and giving more independence to the Ombudsmen in the States). He said that he would continue the fast until the bill was passed and attracted considerable support, including about one hundred and fifty (150) people who joined him in fasting. No politicians were allowed to join in the fasting.

Protests spread to Bangalore, Mumbai, Chennai, Ahmedabad, Guwahati, Shillong, Aizawl and a number of other cities in India. There were also gatherings in solidarity around the world, including Washington, London, Glasgow, Los Angeles, New Jersey, Paris and Houston.

The Government responded as follows:

(1) The resignation on 6 April of Agriculture Minister, Sharad Pawar from the group of ministers that had been charged with reviewing the draft bill.

(2) The realization of the demands by the Government on 8 April. The Government stated that it would table the bill in Parliament in the upcoming session.

(3) The government’s agreement to have an equal distribution of the Government appointed officials and the members of the civil society on 9 April.

(4) On 13 May, Prime Minister Singh stated that the Indian Government had completed the ratification of the UN Convention against Corruption.

The bill however, being week initiated another wave of Hazare’s “Infinate Fast” protests. On 1 August 2011, public interest litigation was filed in the Supreme Court of India by Hemant Patil, a social worker and businessman, to restrain Hazare, alleging that Hazare’s demands were unconstitutional and amounted to interference in the legislative process.

On 16 August 2011, Hazare was arrested four (4) hours before the planned hunger strike. After four (4) hours in detention he was released unconditionally on a request by the police, but refused to leave Tihar Jail where he demanded unconditional permission to fast at Ramlila Maidan. Hazare continued his fast inside the jail and continued to receive support from people across the country. His fast continued until he was hospitalized for weight loss and dehydration.

His supporters started the campaign known as “I am Anna Hazare”, with his cap (topi) becoming a sign of resistance and to be displayed whenever someone asked for a bribe.

In 2011, Hazare demanded an amendment to the electoral law to incorporate the option of “none of the above” in the electronic voting machines during the Indian elections. The “none of the above (“NOTA”)” is a ballot option that allows an electorate to indicate disapproval of all of the candidates in an electoral system, in case of non-availability of any candidate of his choice, as his right to reject. The Chief Election Commissioner of India, Shahabuddin Yaqoob Quraishi supported Hazare’s demand for the electoral reforms.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

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