The Federal Constitutional Court’s recent judgment has an impact far beyond the parties before it. It not only shapes what conduct the law recognises as harassment, but also how the evidence is assessed and whether reporting such harassment offers meaningful protection. It affects an employer’s responsibility to prevent harassment, investigate complaints fairly and guard against retaliation. It leaves insufficient clarity about the standards governing a fair determination. The FCC judgment leaves many unresolved questions, which has shaken confidence of a large segment of the public on whether dignity and equality at work will receive effective legal protection?
Unexplained Departure from Precedent
The FCC adopts a restrictive interpretation of “harassment” at the workplace by holding that the meaning of harassment under section 2(h) of the Act, 2010 is only restricted to conduct which is sexual in nature and all other acts of harassment fell beyond such restricted definition of actionable harassment. The FCC has held so without adequately addressing the Supreme Court’s broader, purposive interpretation of the original law. In particular, reliance on the earlier Nadia Naz decision required consideration of the subsequent review judgment, Nadia Naz vs. President of Pakistan, PLD 2023 SC 588, setting the same aside.
Although Article 189(2) excludes the FCC from the binding effect of Supreme Court precedent, such freedom from binding authority does not dispense with reasoned engagement on questions of law thoroughly considered and settled by the Supreme Court before the 26th and 27th Constitutional Amendment. FCC itself in its recent judgement in Shahbaz Masih vs. Additional Sessions Judge, PLD 2026 FCC 138, laid down the criteria of departure from earlier Supreme Court precedent making it justifiable if it is (i) manifestly inconsistent with the text or structure of the Constitution, (ii) undermines or dilutes fundamental right, (iii) reflects judicial overreach into legislative or executive domains, or (iv) has become incompatible with evolved constitutional values and democratic norms, and (v) any other compelling reason which tends to advance the cause of justice.
The FCC judgment needed to explain why the earlier reasoning is no longer persuasive and why the disavowed narrower interpretation better reflects the statutory text and purpose. The maxim ut res magis valeat quam pereat, that a provision should be construed to have effect rather than fail supports an interpretation that gives meaningful effect to the statutory remedy. The FCC’s approach has excluded conduct the law has intended to address, without sufficiently explaining how that result accords with its protective purpose.
Distinction between Original and Amended Law
The case predates the amendment to the Protection Against Harassment of Women at Workplace Act, 2010 (“Act”) in 2022. The FCC ought to have observed that it was interpreting the pre-amendment law, and that its construction should not be treated as applying or governing the amended framework or in any way limiting Parliament’s broader protection. The FCC’s interpretation must therefore be distinguished from the broader definition the legislature introduced in its wisdom in 2022, expressly covering gender-based discrimination that need not be sexual in nature.
The judgment should have embodied a clearer distinction between the original text, the Supreme Court’s interpretation of that text in review and the Parliament’s subsequent amendment, to avoid uncertainty for employers, inquiry committees and complainants/accused.
Even on the FCC’s restrictive interpretation, the evidence required examination. The material rejected by the President as new pleas, together with the corroborative witness testimony discounted by him, concerned sexually explicit remarks and a drawing depicting a woman’s private parts. If accepted upon proper evaluation, that evidence would plainly satisfy the requirement that the conduct be sexual in nature. The unresolved question was, therefore, whether those allegations were proved? not merely whether non-sexual, gender-based harassment fell within the original definition. The FCC’s restrictive construction does not answer the IHC’s findings concerning the rejection of that evidence by the President, and ignores the critical point that two witnesses testified to the profane drawing.
Presidential Powers, Limits & Delay
The President’s determination under section 9 of the Act required examination as an exercise of statutory authority. Invoking Article 45 of the Constitution of the Islamic Republic of Pakistan (“Constitution”), concerning clemency, or Article 48(2) thereof, concerning constitutionally conferred discretion, does not by itself explain the scope of that authority or its protection from judicial review.
The FCC judgment omits to consider that the ninety-day requirement for the President was added to section 9 of the Act in 2022, but section 14(5) of the Federal Ombudsmen Institutional Reforms Act, 2013 (“2013 Act”), which applies to representation from FOSPAH decisions already required presidential representations to be decided within ninety days. Section 2(c) of the 2013 Act expressly includes the Act for purposes of its application, and its section 24 gives it an overriding effect.
In this case, neither FOSPAH nor the President rendered decisions within the statutorily prescribed period, but this is still distinguishable from the decade it took the High Court to decide. Considering the sensitivity involved in such matters, for parties at both ends, the emphasis on ensuring timely justice should have been highlighted by the FCC.
The trail of dates reflects unforgivable delays. On 24-9-2012, the Complainant first complained of harassment to the President of NBP. She then approached the Divisional Head both on telephone and email on 26-6-2013. She filed another complaint on 2-7-2013 before the President of NBP and ultimately, she had to file a complaint before the Federal Ombudsperson on 2-9-2013. The NBP started an investigation on 18-9-2013, after FOSPAH was seized of the matter and disposed of the complaint. Such show of utter disregard for the FOSPAH law and administration ought to have been noticed by FCC. A statutory body of such distinct responsibility cannot be discredited or ignored, let alone by a government owned and controlled bank. A writ was then filed before the Islamabad High Court in 2015, which was decided on 31-12-2024. The CPLA was filed in 2025 before the Supreme Court and the FCC has finally recently decided it in September 2026.
The FCC observes while insisting on the nature of sexuality to constitute harassment that “any other interpretation would be amounting to reading into the said provision of the Act, 2010. Had the legislature intended to make the definition of sexual harassment exhaustive or equivalent to mere harassment this would have been very much manifest in the Act, 2010 itself.” On the one hand, what is already embedded in the definition has been subjected to ‘reading in’ the law while on the other hand, the courts consistently deem finite timelines (in this case: the manifest wording in mandatory terms by the legislature i.e., “The representation shall be decided within ninety days” is conveniently overlooked or treated as directory? Is it not reading into the said provision or is it just not reading it all?
Whether the Censure Survives?
The FCC sets aside the Islamabad High Court judgment dated 31 December 2024 in W.P. NO. 105 of 2015 (“IHC Judgement”) while leaving operative the President’s order under section 9 of the Act, including the direction to impose censure under its section 4(4)(i)(a). Section 4(4) presupposes a finding of guilt before a penalty may be imposed. Yet, the judgment does not clearly identify the statutory liability sustaining that censure.
If harassment within section 2(h) of the Act was not established, what supports the surviving penalty? If liability remained established and only compulsory retirement under section 4(4)(ii)(b) of the Act was displaced, the necessity and legal effect of the FCC’s restrictive interpretation remain unexplained. The operative outcome and the reasoning require reconciliation. While recording facts, the FCC judgment states that “The petitioners then filed representations before the President of Pakistan/respondent No.3 on 14.02.2014 which was allowed to the extent of setting-aside the compulsory retirement order, however the Bank was directed to award censure in terms of section 4(4)(i)(a) of the Act, 2010 which was challenged before the Islamabad High Court.” What the FCC leaves unexplained is the compatibility of “censure” with Court’s respective reasoning.
Misreading and Non-reading of Evidence Left Unaddressed
The IHC Judgement identified specific evidentiary errors in the President’s decision. These included the treatment of supporting details as “new pleas”, the handling of corroborative witness testimony and the failure to adequately consider evidence of retaliation and adverse appraisal.
Additional detail does not necessarily constitute a new allegation. The relevant question was whether it supported the original complaint and had been fairly tested. Similarly, testimony that a defence witness had not observed misconduct did not necessarily rebut positive evidence of particular incidents of the IHC Judgment. Paragraph 63-68 are of particular relevance to understand and evaluate the nature of harassment under scrutiny:
63. The learned counsel for the Respondent No. 1 submitted that no witness was produced by the Petitioner/Complainant against the Respondent No. 1. However, such submission is negated by the testimony of CW Mr. Saqib Saleem, who was serving as AVP Senior Manager from 1.12.2010 and also by the testimony of CW Mr. Mehmood Rafique who worked with the Petitioner/Complainant and the Respondents No. 1 and 2 from 1.12.2010 till 21.6.2012. CW Mr. Saqib Saleem testified that it was correct to suggest that Respondent No.1 sketched some private parts on his table in Mr. Saqib Saleem’s presence and asked the Petitioner/Complainant to explain the same. Similarly, CW Mr. Mehmood Rafique also testified that it was correct to suggest that the Respondent No.1 showed the Petitioner/Complainant private parts of the body sketched on the glass of his table by marker and asked her to name them and on her refusal asked Mr. Mehmood Rafique to explain the same.
64. The Respondent No.3/President in part rejected such evidence by observing that the said witnesses negated the Petitioner/Complainant’s allegation regarding the sketching incident that it was the Petitioner/Complainant who was first called upon to name the private parts. The only difference between the testimony of the Petitioner/Complainant regarding such incident and that of the aforementioned witnesses was whether she was asked to name the private parts first or the others. Such difference is hardly sufficient to reject to [sic] testimony of two witnesses which otherwise remained un-shattered. It is normal course of human conduct that while narrating a particular incident there may occur minor discrepancies Page – 34 W.P. No.105/2015 due to errors of observation, memory loss due to lapse of time, shock at the time of the occurrence, etc.
65. Furthermore, CW Mr. Mehmood Rafique confirmed that Respondent No.1 used abusive and immoral language with the Petitioner/Complainant. He also confirmed that once when the Petitioner/Complainant was wearing loose clothing the Respondent No.1 threatened to tear off her clothes if she ever wore such clothes again. The Respondent No. 3/President has altogether failed to take into consideration such evidence thereby committing gross misreading and non-reading of evidence. Respondent No.2:
66. CW Mr. Zia Iftikhar, CW Mr. Saqib Saleem, CW Mr. Mehmood Rafique, and CW Mr. Shoaib Kasani all confirmed that Respondent No.2 habitually used filthy, street, abusive, and immoral language in office with his employees and the Petitioner/Complainant. In addition, CW Mr. Zia Iftikhar stated that Respondent No.2 made indecent suggestions to the Petitioner/Complainant about her attire publicly. CW Mr. Mehmood Rafique further stated that Respondent No.2 would question the Petitioner/Complainant about her single status in the presence of others and once or twice also inquired whether she has a boyfriend.
67. CW Ms. Ayesha confirmed in her Affidavit filed before the Respondent No. 4/Ombudswoman that Respondent No.2 made passes at her and compared her to actresses and would also use sexually explicit terms to describe her. She also stated that she was offered to work with Respondent No.2 as his Secretary and upon her refusal he started giving her low performance rating. Respondent No.2 eventually transferred her but that her low ratings led her to leave her job with the Bank. CW Mr. Zia Iftikhar confirmed about Respondent No.2’s flirtatious behavior with Ms. Ayesha and use of degrading and filthy language about her in front of the whole team. CW Mr. Shoaib Kisrani also confirmed in cross-examination that Ms. Ayesha used to tell him about the comments made by Respondent No.2 against her and that he used to pressurize her to sit late.
68. The Respondent No. 3/President overlooked all such evidence and discarded the same simply by mischaracterizing it as ‘new pleas’.
Furthermore, in paras (83 & 86)
83. …Therefore, even if such evidence of the DWs is taken into consideration it does not disprove the allegations leveled by the Petitioner/Complainant nor does it negate the evidence produced by her. At the most, according to such evidence the Respondents No. 1 and 2 did not subject the Petitioner/Complainant to harassment in the presence of the said DWs. That certainly does not mean that the Respondents No. 1 and 2 never harassed the Petitioner/Complainant especially when such harassment has been witnessed by the CWs….
86. The discussion herein above makes it abundantly clear that that the matter has not been disposed of by the Respondent No. 3/President in a legal and judicious manner and the Impugned Order passed by the Respondent No. 3/ President suffers from gross misreading and non-reading of evidence, and misapplication of the law which has resulted in miscarriage of justice and as such is not sustainable. Thus, this is a fit case that warrants interference in exercise of Constitutional jurisdiction which is meant to serve the cause of justice, allowing the High Court to correct wrongs committed contrary to the evidence and the law.
The FCC needed to explain why the IHC’s findings of misreading and non-reading were mistaken. Merely acknowledging those findings does not answer them and even with the restrictive approach adopted by FCC, it should at least have addressed how such conduct failed to fall within the purview of sexual harassment. Or, how such evidence did not satisfy the test laid down by the FCC, the bare minimum requirement of impartial, credible material, capable of surviving the test of reasonableness and how the evidence was not reinforced with convincing/independent evidence?
How was the IHC’s Intervention Unwarranted?
The FCC recognises misreading and non-reading of evidence as grounds for intervention under Article 199 of the Constitution, but does not adequately explain why the IHC’s intervention fell outside those grounds.
The issue was whether the IHC corrected material evidentiary errors or improperly substituted its own assessment for a legally permissible view. The FCC needed to identify where the IHC crossed that boundary and address the evidence supporting its conclusions.
A general prohibition against reappraising evidence cannot substitute for applying the recognised review standard to the record. Without that explanation, deference to the President’s statutory determination risks becoming practical immunity from meaningful review.
How Statutory Protection Could ‘undermine the counterpart’s Dignity’?
FCC observed that the Act of 2010, has intended to provide smooth working environment for the women by protecting their honour, modesty and respect by virtue of their gender. The Act, 2010 does not provide a special or a preferred treatment so as to undermine the dignity of their counter-part. A special law is for special situations if attracted and cannot be applied in the general context.
Such observation concerning preferential treatment and undermining of counterpart’s dignity identifies neither an improper advantage afforded to the complainant nor a concrete infringement of the accused’s rights. Article 14 of the Constitution protects both parties’ dignity, similarly Article 10A guarantees fair process, and Article 25(3) permits special provision for women’s protection.
The Act itself provides procedural safeguards under section 4(1), including an opportunity to answer allegations and cross-examine witnesses. Section 5(3) of the Act addresses allegations found to be false and made mala fide.
The FCC judgment was therefore required to explain how the protection afforded in the IHC Judgment resulted in a preferential treatment to undermine the dignity of the accused? Without identifying a procedural or evidentiary defect, such observation risks equating statutory protection with favouritism, discouraging complaints and creating uncertainty about the Act’s proper enforcement.
Employer’s Obligations Left Unaddressed The National Bank of Pakistan’s (“NBP”) role raises a question of institutional accountability. Section 11, read with section 3 of the Act and the statutory Code of Conduct, places responsibility on the employer to implement workplace protections. Yet, the NBP itself asked the President to set aside the Ombudswoman’s punishment and substitute a stern warning, relying on an internal committee that the IHC found unlawfully constituted. The institution responsible for enforcing the safeguards was seeking to dilute the sanction. In paragraph 22, the IHC expressly found the NBP’s request legally unfounded and indicative of partiality towards the accused.
The FCC judgement leaves these findings unanswered. What becomes of the employer’s statutory responsibility when its own defective process is used to seek relief for those found responsible? Leaving this question unresolved risks enabling employers to shield harassment through inadequate internal inquiries, discouraging employees from reporting harassment and reducing mandatory safeguards to paper compliance. The consequences extend beyond a reduced penalty, they weaken accountability within the very institution entrusted with making the workplace safe.
What is particularly troubling is that while the NBP, the President, and the FCC in their role as custodians bear a responsibility to guard the rights of the people, each appear to be aligned in an outcome that weakens the very protection they are entrusted to secure. We can only hope that FCC will review the decision and exercising its supremacy will put such uncertainty to rest, dispelling all fears and apprehensions.
We are all aware that women cannot be empowered in a disabling environment.
