GENDER EQUALITY AND EQUALITY LAW

In common parlance, Article 25 is often referred to as the ‘non­discrimination’ clause of the 1973 Constitution. The 1973 Constitution was the first to add a guarantee against discrimination on the basis of ‘sex alone’ to a right that had previously been a broad guarantee of legal equality for all citizens.

Prior to the proclamation of martial law in 1958, the Supreme Court received a petition under Article 5(1) challenging the separation of electorates and representatives on the basis of sex, innovated by the Punjab Government for district body elections. As a result, the number of representatives for women was sparse in relation to their overall electoral strength. The Supreme Court relied upon an incontrovertible history of denying suffrage on the basis of gender to suggest that this form of ‘special treatment’ for women was in fact reasonable. Because there was no ‘fundamental right’ of suffrage within the constitutional structure, the court held that the provinces were accorded a full range of manoeuvres for tinkering with different models of suffrage.^[481]

Such a judgment was not unanticipated and for this reason wom­en’s groups had organised dissent when the 1956 Constitution was announced. In addition to the absence of specific sex equality protec­tions, they were concerned about the absence of guarantees of ‘equal pay for equal work’ and somewhat ambivalent about the ‘preferential’ treatment accorded through the establishment of women’s reserved seats for parliament.^[482] The prior dissolution of the first Constituent Assembly meant that two proactive female voices that could have influenced constitutional drafting were gone and the second Assembly had no female representation.

When the 1962 Constitution was announced, a specific sex equality right was again absent. There was no easily available mechanism for moving the law towards greater formal equality and even a ‘progressive court’ upheld the differential treatment of women and men in refer­ence to provisions of the Muslim Family Law Ordinance (MFLO), itself a law passed through the lobbying of women’s organisations for a more equitable interpretation of Shariat principles.^[485] Additionally, in a case that was prelude to a great many others fought on this issue in the following decades, separate seats and quotas for male and female applicants to medical colleges were settled in favour of retaining these quotas. In this, the Humera Satwat case, even as women’s ‘righteous indignation’ was acknowledged at policies that dictated that they could only compete for a small number of seats in medical colleges, the court deferred the matter to executive actors for consideration.^[486]

The 1973 Constitution would supplement the non-discrimination right with Article 25(2), ‘There shall be no discrimination on the basis of sex alone’. Additionally Article 25(3), ‘Nothing in this Article shall prevent the State from enacting any special provision for the protec­tion of women’ seemed to herald the determination to bolster women’s access to economic and political opportunity.

A slow evolution towards forging non-discrimination standards is apparent in the line of cases stemming from challenges to medical col­lege admissions quotas and even more haphazardly in reference to a group of employment discrimination cases. These are described below

A. Medical Colleges Cases

It would take almost an additional two decades before a situation analogous to the one in the ‘righteous indignation’ case was held to be discriminatory on the grounds of sex alone. Some of the delay in the realisation of the promise of this more concise protection was con­sequent upon the many suspensions of rights that occurred over this time, most extensively under Zia in the years 1977—1985.

An early case to arise upon the restoration of rights tested the legal­ity of reservations specifically for women and asked the question of whether such reservations discriminate against men?^[487] The court made light of the concern that such reservations for women deny men their right to be considered solely on merit and allowed these reservations on the ground that Article 25(3) affords policy makers the leeway to enact preferential rules for women. In fact, the court offered a list of areas in which they could foresee the possibility of such protective or preferential policies being adopted. Maternity policy, free education and provision for separate accommodation and entrances for women in public facilities were amongst the areas listed where such policy could be innovated. In language that is highly paternalistic and patronising, the court essentially provided that women as a class need protection until such a time that the habits of life that have thus far inculcated dependence can be changed.

It was only in 1987 that cases testing the validity of limits placed on women’s access to open merit seats came up again to be adjudi­cated.

general protection against discrimination contained in Article 25(2) was liable to be narrowed where more specific protections by way of the fundamental right of Article 22 are read alongside it. Article 22 establishes ‘safeguards as to educational institutions in respect of reli­gion, etc’ and expounds that ‘no citizen shall be denied admission to any educational institution receiving aid from public revenues on the grounds only of race, religion, caste or place of birth.’

In the initial judgment, the reservation of a majority of the suppos­edly open merits seats for men was held to be prima facie violative of Article 25. The court reflected that in a period of rights suspension that had preceded, a general reasonable classification test was used and such an assignment of seats could possibly have been validated with the use of other justificatory criteria, such as the greater need for male doctors. However, where the Article 25 right had been restored, they were unwilling to allow the import of other criteria to protect discrimi­natory practice. In fact, the court rejected the employment of a reason­able classification test where Article 25 could be invoked, other than in cases where such a classification would work to ensure equality for women or confer upon them some additional benefit. It also narrowed the application of Article 22 to very specific cases involving institu­tions that are neither wholly governmental nor wholly private but are funded partly by the government. More importantly, it did not see this as a special provision that can be used to read down or limit another constitutional guarantee.^[489]

It was primarily on this basis that the second bench at the LHC dif­fers, seeing the application of Article 22 as limiting the general protec­tions of Article 25.

In the Supreme Court appeal,^[491] reported as Shirin Munir, Justice Shafiur Rahman et al declared that they must provide an ‘authoritative pronouncement’ in the circumstances. For equality advocates the result is a favourable precedent. Broadly, by suggesting the need for har­monious interpretation of varied constitutional provisions and rights guarantees, it suggests that even in the specific conditions to which Article 22 safeguards are directed, the absence of a clear specific sex protection cannot take away from, or limit the application of the general protections accorded by Article 25(2). Therefore, there are no immunisations, even by way of the express language and ‘ring-fencing’ of certain domains as per Article 22, against the broader equal pro­tection, equal treatment and non-discrimination rights of Article 25. Rather, the two provisions read together imply that a ‘reasonable clas­sification’ test needs to be employed in all circumstances. It further holds that there is no basis for the sex of applicants to be a reasonable classification to influence admission.

The impact of Shirin Munir continues and in the years 2014 and 2015, to a set of remarkably contrary circumstances, the dicta of that case has been applied. Two cases from the LHC^[492] and the Balochistan High Court (BHC)^[493] were fought against the application of a ceiling on the admissions of women to medical and dental colleges. In a much altered landscape of unprecedented women’s educational achievement, the regulatory body of medical practioners in the country commissioned a study which revealed that, in an open merit system, women were securing up to 68% of all seats in the country’s medical institutions.

B. Employment

Judicial reasoning in employment inequality cases arising under Article 25 has been given added impetus for doing away with acts of overt discrimination by the existence of Article 27. Thus, where the absence of ‘sex’ as a barred ground for discrimination in the area of education as per Article 22 has had a somewhat confusing impact over the years, the presence of sex amongst the prohibited grounds of dis­crimination for ‘service within the state’ has lent itself to expanding protections.^[495] In addition, the Principle of Policy providing that the state will endeavour to expand women’s participation in all aspects of national life is also formally appended to the available mechanisms for correcting discrimination in the sphere of employment.^[496]

Altogether, though, sex discrimination protections seem to extend only to situations of direct and systematic violation. There are very few employment equity cases that reach the higher courts at all. One should not assume, however, that such cases are being heard at a lower level of the court system in greater numbers. The reasons are many and implicate the lacunae in Pakistan’s legal system as far-reaching and hugely detrimental, enabling discrimination on many registers to go unchecked. Pakistan lacks a statutory regime of human rights protec­tion for the private sphere, so that the realms of private enterprise, private housing, are almost fully outside the purview of fundamental rights protection. An exception has sometimes been made of the private educational sphere for the reason that it is performing a ‘gov­ernmental function’ and therefore remedies will be sought when a petitioner alleges discrimination.^[497] Additionally, there are no provisions within labour or industrial relations laws to safeguard against gender­based discriminatory practices by either employers or unions.

While it has increased somewhat, from around 10 per cent in 2000 to closer to 15 per cent to 2010, women are vastly under-represented in the country’s formal labour markets. Additionally, even when performed in the formal sphere, women’s labour is often treated as ‘informal’, so that it is classed as temporary employment and does not enjoy any protections from within what are in any case piecemeal and patchy existing labour laws. These statistics also disguise women’s labour that is performed within the household, not only towards the household but in small production processes and the crafts industry as well as reflecting the general under-reporting of employment statistics given the dimensions of the vast informal sector.^[498] Protections against discrimination thereby are enjoyed in small pockets.

Cases that have arisen suggest that de facto violative practices such as advertising that ‘males only’ need apply will be subject to a thorough­going scrutiny.^[499] In that regard, it is also noteworthy that Article 27(2) provides a possible exemption to the need to retain employment equity on the basis of what has been termed a ‘bona fide occupational require­ment’ in other jurisdictions. It is yet untested as to what would form a bona fide exception on the basis of sex. The court has ruled that even traditionally male jobs such as lumbradars (village headmen) cannot be denied to women.^[500]

Another set of cases in which overt and explicit discrimination was challenged involved the practices of the national airline, Pakistan International Airlines (PIA). PIA had retained a long-standing policy that women members of the cabin crew needed to retire at the age of 35, even as male cabin stewards could continue in service until the age of 60. Early petitions were converted to out of court settlements and PIA^[501] retained the policy for many years until a number of petitions were coupled and heard together at the Supreme Court.

Unsurprisingly, the court found PIA’s practices to be discrimina­tory. Nonetheless, in this judgment the court managed to introduce some amount of ambiguity around the edges of its reasoning. For instance, Justice Sardar Muhammad Raza Khan reasoned, ‘we are of the view that had the Air Hostesses been singularly placed altogether in a different group, the fixation of their retirement age at a different level from other groups of employees of PIA would not have been a discrimination, being intra sex and not inter sex’.^[502] Such a statement could suggest that a reassignment of nomenclature alone could have redressed the perceived discrimination. Further along, however, they also reiterate that the nature of the duties performed between female and male members was similar in all cases, and that this ‘is not a distinction based on intelligible differentia but clearly is a distinction based on sex’.

A range of women’s groups petitioned over many years to have the language of Article 25 changed to read ‘sex’ in place of sex alone so as to at least make space to try cases involving indirect and systemic dis­crimination. This was a significant change within the package of 18th Amendment reform and was passed without any dissent. However, to date no major reported case has been fought on the altered provision. Additionally also, a coalition of six women’s groups and NGOs suc­cessfully fought to have a national law enacted in 2010 providing some redress against sexual harassment at the workplace. This law applies to private and public employers, provides a far-reaching definition of harassment, and establishes a national ombudsman entrusted with ensuring that the whole machinery is operating, as well as the power to enforce penalties upon accused parties.^[503] An additional element of gender justice that has found recent expression within the Pakistani legal landscape is that of a mandated recognition of transsexuals. A number of judgments address the absence of recognition by the state faced by transsexuals, and the resulting denial of their access to state services.^[504] These cases have proceeded under Article 9 and cite the pervasive social stigma and vulnerability that transsexuals face in Pakistan; no tests of discrimination are formally used.

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