CPLA Nos. 1011 and 1113 of 2026 (date of hearing: 23.07.2026)
Bench: Amin-ud-Din Khan CJ, Ali Baqar Najafi J and Syed Arshad Hussain Shah J
Facts of the Case
The Respondent (Nadia Sarwar) joined the National Bank of Pakistan (NBP) in 2008 and worked at the Corporate Centre in Islamabad. She complained to the President of NBP on 24.09.2012 and again on 02.07.2013 that two senior officers were harassing her. When the bank did nothing, she approached the Federal Ombudsperson on 03.09.2013 under the Protection against Harassment of Women at the Workplace Act, 2010 (Act IV of 2010) (“the Act”). The Ombudsperson, after recording evidence, imposed compulsory retirement on both officers. On representations under section 9 of the Act, the President reduced this to censure under section 4(4)(i)(a) of the Act. The Islamabad High Court set aside the President’s order and restored the Ombudsperson’s decision. The Federal Constitutional Court (FCC) converted the leave petitions into appeals, allowed them and set aside the High Court judgment (para 18).
According to the facts summarised by the FCC, the attitude of the seniors was initially good but changed when she did not follow their “direction” (Para 4 of the Judgment). The seniors misused their authority and asked her to stay after office hours. Even when she applied for medical leave, she was asked to disclose the nature of her illness, which caused her embarrassment. She was also told that “She was not the kind of girl they were looking for” and she was also told that if she had any problem, she could leave the job. (Para 6 of the Judgment)
The Court’s decision
Justice Ali Baqar Najafi authored the judgment and allowed the appeals of the Petitioners by setting aside the judgment of the Islamabad High Court (Para18). The court relied on three main grounds:
- The meaning of harassment: The court, after going through the details, held that the definition of harassment in section 2(h) is “exhaustive and not extensive” and that conduct is covered only if it is sexual in nature, “sexual” being understood as relating to physical attraction or intimate physical contact (para 12). Any other misconduct, no matter how grave, will not fall under its definition. The court that Raja Tanveer Safdar v. Tehmina Yasmeen (PLD 2024 SC 795) and Muhammad Din v. Province of Punjab (PLD 2025 SC 354) had held harassment to include gender-based harassment not sexual in nature, but, invoking Article 189, it expressly declined to follow them, reasoning that any wider meaning would amount to “reading into” section 2(h) (paras 12 and 13).
- The standard of proof: Relying on Maimoona Rajab v. Province of Punjab (PLD 2021 Lahore 598), the Court held that proof of sexual harassment requires, at a bare minimum, impartial and credible material that survives the test of reasonableness and is “reinforced with convincing/independent evidence” (para 12).
- The status of the President’s order: Reproducing Articles 45 and 48(2) of the Constitution alongside section 9 of the Act, the Court reasoned, with reference to Federation of Pakistan v. Muhammad Tariq Pirzada (1999 SCMR 2189) and Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473), that the President has no powers except those conferred by the Constitution, and that an order of the President passed “without the recommendation of the Prime Minister” is not to be interfered with “as a run-of-the-mill” in certiorari. It said this view had already been taken in CPLA No. 560 of 2024, decided on 21.07.2026 (para 16). It added that a High Court in certiorari does not substitute its own findings of fact and interferes only for want of jurisdiction, misreading of evidence, misapplication of law or violation of natural justice, citing Rahim Shah v. Chief Election Commissioner (PLD 1973 SC 24) and Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa (2001 SCMR 338) (para 17).
Critical Analysis of the Judgment
The most striking feature of the case is its outcome. The Respondent succeeded before the Ombudsperson and the High Court. The FCC reversed the concurrent results of the fact-finding forum and the High Court, yet nowhere in its eighteen paragraphs does it say that any finding of the Ombudsperson was wrong, that any finding of the High Court was wrong, or that the complainant’s evidence was false.
Comparison with the Nadia Naz Review Case
One of the major criticisms is that the court followed a precedent that no longer stood, cites Nadia Naz v. President (PLD 2021 SC 784), and para 12 describes Raja Tanveer Safdar as having adopted it “with modification”. That judgment of 2021 had been set aside on review in 2023 (PLD 2023 SC 588, para 15). The FCC never mentions the review, never answers its dictionary analysis, and never engages Yahya Afridi J’s textual point that “sexually demeaning attitudes” yields no rational meaning unless “sexually” means “relating to gender”. That textual argument is untouched by the FCC’s charge of “reading into” the provision (para 13). Para 13 also asserts that, had the legislature intended a wider definition, it would have been “manifest in the Act”. It was: Act V of 2022 substituted section 2(h) to include “discrimination on the basis of gender, which may or may not be sexual in nature” (reproduced in PLD 2023 SC 588), and the review treated this as confirming the purposive meaning for 2010.
The review also examined the Standing Committee Report of 29.09.2009, the National Assembly debates of 21.01.2010, the Senate debates of 25.02.2010 and the Statement of Objects, all of which showed that Parliament intended to address gender-based harassment and to give effect to CEDAW and ILO Conventions 100 and 111 (para 5). It noted that the definition of “complainant” in section 2(e) includes men, so that a purely sexual reading would make the Act largely meaningless for male employees (para 4). It relied on comparative authority, including Vishaka v. State of Rajasthan ((1997) 6 SCC 241), Apparel Export Promotion Council v. A.K. Chopra ((1999) 1 SCC 759) and Janzen v. Platy Enterprises ([1989] 1 SCR 1252), all treating sexual harassment as a form of sex discrimination (paras 10 and 11). And it laid down that harassment must be assessed from the victim’s perspective, applying the standard of a reasonable woman, viewing all factors both objectively and subjectively (para 14). The FCC engages with none of this. Its interpretation is not a considered disagreement with the review; it is a return to the position the review overturned, without acknowledging that the review exists. The judgment itself records allegations of “shameful, unethical, scandalous, immoral and un-Islamic” words, the sketch of a woman, and the complainant’s protest that she “was not that kind of girl they were looking for” (paras 4 and 6). Words of that character may well be “communication of a sexual nature” even in the narrowest sense. More importantly, the reply that he would keep saying such things and that she could leave the job if she objected, fits squarely within the last limb of section 2(h), which covers conduct that is “made a condition for employment” or an “attempt to punish the complainant for refusal to comply”. That limb required analysis; it received none.
A long explanation of the harassment but no explanation of the conduct
Paragraphs 8 to 13, the bulk of the judgment, describe the Act section by section and discuss the meaning of harassment in the abstract. Not one paragraph then asks the question the case required: does the conduct proved before the Ombudsperson fall within section 2(h), even on the Court’s own narrow reading?
The Court also overlooked its own description of the Code of Conduct annexed to the Act. In paragraph 9 it identifies three ingredients of harassment: abuse of authority, creation of a hostile environment and retaliation. The complainant alleged all three: misuse of supervisory authority over leave and working hours, an offensive environment, and adverse remarks recorded after she complained. The chronology on the record supports her on retaliation. Her first written complaint was made on 24.09.2012; the adverse appraisal came on 01.09.2013, almost a year later (paras 2 and 5). The petitioners said her complaint was a reaction to the appraisal the dates suggest that, if anything, the appraisal was a reaction to her complaints. The Ombudsperson had found no contradiction in the testimony of the complainant and her witnesses, Saqib Saleem and Mehmood Rafiq, and had discounted the defence witnesses because they appeared without permission and admitted that their confirmation, promotion and ACRs were controlled by the two petitioners (para 5). These are classic credibility findings by the forum that saw the witnesses. The FCC did not disturb them; it simply ignored them. Ironically, in paragraph 17 the Court lists the grounds on which a High Court may interfere in certiorari, including non-reading and misreading of evidence, misapplication of law and arbitrary exercise of power. Those are precisely the grounds on which the High Court acted: it found that the President had treated the first complaint as if it were an FIR or a pleading, had discarded evidence by mislabelling it as a new plea, and had relied on departmental proceedings by a committee not constituted under section 3(2) (para 7). The FCC never explains why those findings fall outside its own test.
Article 45 and 48(2) of the Constitution of Pakistan 1973 versus Section 9 of the 2010 Act
The central legal move in the judgment is to treat the President’s order as one made under Article 45 and protected by Article 48(2). This is difficult to defend for several reasons. First, the source of the power was never in doubt. Section 9 of the Act, which the Court itself reproduces, gives “any person aggrieved” by the Ombudsperson’s decision a right to make a representation to the President or the Governor within thirty days, and requires the representation to be decided within ninety days. The President’s jurisdiction here was created by Parliament through a statute. Remarkably, when the Court asked the petitioners’ own counsel whether Article 45 and Article 48(2) applied, he answered that the power lay in section 9 (para 15). The Court thus decided the case on a proposition that even the party benefiting from it did not advance. It is an unusual thing for a court to find in favour of a litigant on a ground that his own counsel disclaimed, and it deprived the complainant of any chance to answer it.
Second, Article 45 is a clemency power. It allows the President to grant pardon, reprieve and respite, and to remit, suspend or commute a sentence. It does not authorise the President to sit in appeal, re-weigh evidence and reach fresh findings of fact. Yet that is exactly what the President did here: he held that the objectionable words were not proved, discounted the sketch allegation as an afterthought, preferred the defence witnesses and relied on NBP’s departmental findings (para 6). That is the work of an appellate authority under section 9, not an act of mercy under Article 45.
Third, the holding creates an anomaly. Section 9 sends federal representations to the President and provincial ones to the Governor. The Constitution gives Governors no clemency power equivalent to Article 45. On the FCC’s logic, then, a Governor’s decision under the same statutory provision remains open to judicial review, while the President’s becomes practically immune. The same right of representation would carry two different levels of protection depending on whether the workplace is federal or provincial. No legislature could have intended that.
Raising the bar for every victim
The requirement that harassment be proved by “convincing/independent evidence” (para 12) is not found anywhere in the Act. It is borrowed from a single High Court decision, Maimoona Rajab (PLD 2021 Lahore 598), and now acquires binding force through the FCC. The Act points in the opposite direction. It deliberately gives the Ombudsperson flexible fact-finding powers: section 8 allows her to conduct proceedings as she deems proper and to require any officer of the organisation to produce information and documents; section 10 gives her the powers of a court to summon witnesses, compel evidence, receive affidavits, issue commissions and inspect premises.
The FCC itself accepts that under the 2013 Rules the Ombudsperson may adopt her own procedure and decide on “logical arguments substantiated by available evidence” (para 11). Parliament chose an informal, protective forum precisely because harassment cases do not fit the rigid evidentiary model of a criminal trial. The reason is practical. Harassment usually happens in private, between a superior and a subordinate, and the only other people present are often colleagues whose careers depend on the harasser, exactly as the Ombudsperson found here. A rule demanding independent corroboration will defeat most genuine complaints. It also contradicts the Code of Conduct, which the Court itself summarises as providing that failure to report immediately does not affect the merits of a case (para 9), and the review’s direction that harassment be judged from the victim’s perspective using the reasonable woman standard (PLD 2023 SC 588, para 14). The President’s rejection of the sketch allegation because it first appeared in the complainant’s affidavit is a clear example of the error: the High Court rightly held that a first complaint is neither an FIR nor a pleading (para 7). By endorsing the President’s approach, the FCC has raised the bar not only for Nadia Sarwar but for every future complainant.
Binding nature of this Judgment
This judgment matters far beyond the parties because of the 27th Amendment. Article 189(1), as amended, provides that a decision of the Federal Constitutional Court, to the extent that it decides a question of law or is based upon or enunciates a principle of law, is binding on all other courts in Pakistan, including the Supreme Court. Article 190 requires all executive and judicial authorities to act in aid of the Court. The narrow reading of section 2(h), the corroboration requirement and the characterisation of the President’s order under Articles 45 and 48(2) will therefore bind the High Courts, and through Article 190 the Ombudspersons and the President, in all pending and future cases.
Conclusion
The Nadia Naz review read the Act through its words, its purpose, its legislative history, the Constitution and Pakistan’s international commitments, and placed the victim’s perspective at the centre of the inquiry. The FCC read it through one dictionary meaning, relied on a judgment that had already been set aside, recast a statutory representation as a constitutional clemency power that even the accused did not claim, imposed a corroboration requirement that the Act does not contain, and reversed the decisions of two forums without examining the conduct that was proved before them. Because Article 189(1) now gives such holdings binding force throughout the country, these errors will not be confined to Nadia Sarwar’s case.
